DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 338 of 27-07-2010

Decided on : 27-06-2011

Rajvir Singh S/o Sh. Harpal Singh aged about 49 years R/o VPO Kattianwali, Tehsil Malour, District Mukatsar.

.... Complainant

Versus

1. Deep Multi-super Speciality Hospital, Deep Complex, Near Hanuman Murti, G.T Road, Bathinda, through its Prop./partner/authorised signatory Jaswant Singh

2. Dr. Nitin Aggarwal alias Nitin Bansal C/o Deep Multi-super Speciality Hospital, Deep Complex, Near Hanuman Murti, G.T. Road, Bathinda.

3. Adesh Institute of Medical Sciences & Research, Barnala Road, Bathinda, through its M.D./Chairman/Authorised Signatory. (deleted vide order dated 19-10-2010)

4. The New India Assurance Co. Ltd., 2090, The Mall, Bathinda, through its Divisional Manager.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

For the Complainant : Sh. K.S. Bhullar, counsel for the complainant.

For the Opposite parties : Sh. Rajiv Gupta, counsel for opposite party No. 1.

Sh. S.M. Goyal, counsel for opposite party No. 2.

Sh. Sunder Gupta, counsel for opposite party No. 4.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that he met with an accident on 1-08-2009 and sustained multiple grievous injuries on his various parts of the body including (L) thigh-knee fracture, (R) leg-knee fracture and (R) leg-ankle fracture etc., Accordingly, he was brought to the hospital of opposite party No. 1 by his attendants on the same day. After checking, opposite party No. 1 advised his immediate admission and required some test before conducting operation. Accordingly, complainant was admitted in the hospital of opposite party No. 1 and an amount of Rs. 20,000/- was got deposited from him but receipt for only Rs. 200/- was issued. Some tests were got conducted by opposite party Nos. 1 & 2 and Rs. 5,000/- more were charged from him on account of test charges, file charges, NCCT head etc., On 3.8.2009, he was advised for operation and accordingly pre-operative tests were conducted and Rs. 1.00 lac was got deposited by them from complainant as operation charges, doctor fee and charges of implantation of plates and rods. The operation of the complainant was conducted by opposite party No. 2 with the help, presence of opposite party No. 1 in his hospital. After conducting operation and implantation of plates and rods, opposite party Nos. 1 & 2 conveyed that operation is successful and the complainant would be completely cured within 3 months. He was discharged from the hospital on 9-8-2009 and some medicines were prescribed and he was asked for regular check-up. At the time of discharge, the opposite party Nos 1 & 2 have issued receipt only for Rs. 55,000/- as against the amount of more than Rs. 1.00 Lac. The complainant alleged that even after the operation and regular check-ups, the complainant felt pain, then the opposite party Nos. 1 & 2 referred the complainant to Omega Diagnostic Centre Bathinda for X-ray on 7-9-2009 and doctor of Omega Diagnostic Centre did not give any report and orally conveyed that there is a breakage in the plates implanted by opposite party Nos. 1 & 2. The complainant complained about the same to opposite party Nos. 1 & 2 but they did not care. The complainant alleged that he has regularly been visiting opposite party Nos. 1 & 2 for treatment and regular check-up, but he did not cure till January, 2010 and has been feeling pain regularly due to which he is unable to stand and move. In the month of January, 2010, the complainant alongwith his attendants visited Dr. Gurvinder Singh's Hargun Hospital, Amritsar, who after conducting the X-rays and check-ups, opined that there is gross negligence in the treatment and operation made by opposite party Nos. 1 & 2 and second operation is required. Thereafter during the month of February, 2010, the complainant alongwith his attendants visited opposite party Nos. 1 & 2 and protested for their negligent act and opposite party Nos. 1 & 2 felt their guilt and gave undertaking in the presence of respectables of Bathinda City to the effect that complainant may get his treatment from any other hospital and they would bear all losses suffered by the complainant. Accordingly, on 26-02-2010, the complainant alongwith his attendants visited Gurvinder Singh's Hargun Hospital, Amritsar, where complainant was got admitted and his operation was conducted on 27-02-2010 and was discharged on 10-03-2010. His another operation was conducted on 21-04-2010 and he was discharged on 29-04-2010. The complainant is still under treatment with the doctor at Amritsar and has spent more than Rs. 2.00 Lacs on his treatment at Amritsar on account of Doctor/s fee, operation fee, transportation charges, medicines, special diet, on account of attendants and room charges etc., The opposite party No. 1 has obtained a Doctor's Professional Indemnity Policy from opposite party No. 4 The opposite party No. 3 has been impleaded as the complainant was called for check-up in the premises of opposite party No. 3 by opposite party No. 2, however, no relief is claimed from opposite party No. 3. The complainant alleged that there is gross negligence and deficiency in service on the part of opposite party Nos. 1 & 2 in giving treatment and performing the operation. Hence, this complaint has been filed by the complainant.

2. The opposite party No. 1 has filed separate written reply and stated that complainant met with accident on 1-08-2009 and firstly visited Dr. Mohinder Ortho and General Hospital, Malout Road, Abohar from where he got his left side stitched and obtained first aid from said hospital. Thereafter he visited the hospital of opposite party No. 1. This fact has been concealed by the complainant from this Forum. The opposite party No. 1 has denied that amount of Rs. 20,000/- or Rs. 1.00 Lacs was ever deposited by the complainant. The opposite party No. 1 has received Rs. 55,000/- in all. It has been admitted that complainant was operated on 3-8-2009 and the operation was successful. The complainant was discharged on 9-8-2009. The complainant never visited the opposite party No. 1 on 7-9-2009. The complainant visited opposite party No. 1 only on 24-12-2009 and a telephone call was received from Sh. Karnail Singh, Naib Tehsildar who conveyed that complainant is his relative and requested to take care of the complainant. All the treatment of the complainant was done free of cost by opposite party No. 1 as a gesture of goodwill. Dr. Gurvinder Singh's Hargun Hospital, Amritsar is not a renowned hospital and the said doctor is related to the complainant. If there was any problem, the complainant should have got treatment from PGI, Chandigarh or DMC, Ludhiana which are renowned hospitals of Punjab. The complainant was admitted in the hospital of opposite party No. 1 on 23-12-2009 and was discharged on 27-12-2009, and thereafter he never visited opposite party No. 1. The complainant has not stated that why his two operations were done by doctor at Amritsar within the gap of two months.

3. The opposite party No. 2 filed his separate written reply and pleaded that as per disclosure made by complainant and his attendants, he was first taken to the hospital of Dr. Mohinder Goel C/o Dr. Mohinder's Ortho and General Hospital, Abohar firstly from the place of accident where he was treated by said doctor. The said doctor had found wound on scalp, fracture skull, composite fracture both bones right leg etc., and the complainant was treated there on 01-08-2009. The complainant was brought to the hospital of opposite party No. 1 on 01-08-2009 after getting treatment from Dr. Mohinder Goel, Abohar. Considering the condition and injuries sustained by complainant, medically he was required to be treated after admitting him as Indoor patient and accordingly after getting consent from the attendants of the complainant, necessary/requisite treatment available in the hospital of opposite party No. 1 as per medical science was given/ As there was head injury (Wound Over Scalp) and as such NCCT Head (Non Contrast Computed Tomography of Head) i.e. Scan of Head was performed and following report was given :-

   4^th ventricle is normal

   Both the cerebellar hemispheres are normal.

   The Cerebello-pontine cisterns are partially effaced.

   Supratentorial Region

Both cerebral hemispheres show extensive vasogenic cerebral edema.

*There is pneumoencephlus present

*The lateral ventricles are partially effaced.

*On bone window, there is fracture of the nasal bones, lateral wall of the left orbit, frontoparietal bones on the left side with fracture of the lateral wall of right orbit and fracture of right zyomatic arch.

*The cephalhematom is seen in the orbital areas and the o parietal areas.

4. The opposite party No. 2 is duly qualified and having degree of Master of Surgery from Baba Farid University of Health Sciences which he obtained after doing his MBBS from University of Rajasthan in September, 2002. The opposite party No. 2 is known as Nitin Aggarwal and is also being called with the name Nitin Bansal and he used to attend the hopsital of opposite party No. 1 on call basis. The complainant was patient of hospital opposite party No. 1 and there was no privity of contract between the complainant and opposite party No. 2. The pre-operative tests were got conducted and as per the requirement/necessity, the operation of complainant was performed. As per the X-ray and examination of the right leg of the complainant, fractures were observed in both bones i.e. Tibia and Fibula. Accordingly, a team of competent doctors was arranged before operation, spinal anesthesia was given by Anesthetist, the parts were cleaned and draped, wound over right leg was irrigated and pulsed lavage with NS (Normal Saline) and betadine. Irrigation with gentamicin and Inj. Supacef was done, Debridement and curettage done with proper care of soft tissues and vital structures, closed reduction was achieved and C arm and entry portal was made over proximal tibia, guidewire was inserted and fracture was reduced under C arm, guidewire centralized undreamed and interlocking nail of 9 x 38 mm with proximal and distal locking was inserted in the right leg, over guidewire. The compound skin wound was lossesly stitched of the right leg. So far as left thigh of the complainant is concerned, after clinically observing and making necessary investigations and also after going through the X-ray of left thigh, anterolateral skin incision was given, as the fracture was found to be badly comminuted with complete destruction of articular joint surface, so open reduction was done under direct vision with complete restoration of articular surface and cross checked under C-arm, two cannulated screws were fixed with washers, proper debridement and irrigation with Normal Saline and antibiotics was done. The incision was closed in layers over suction drain land thereafter POP slab was applied above left knee lower limb. After making proper observations and waiting for sufficient time and considering the condition of the patient/complainant to be satisfactory, he was shifted out of Operation Theater to Recovery Room. It has been denied that any plate was put/inserted or ever conveyed by opposite party No. 2 to the complainant or his attendants. It has been specifically denied that the opposite party No. 2 had ever conveyed that the complainant would be completely cured within three months and could live an ordinary life like before the accident. The opposite party No. 2 is employed with opposite party No. 3 and on insistence and request of complainant and his attendants, he was checked up by opposite party No. 2 while he was sitting in Adesh Institute. As no plate was implanted on 7-9-2009 in the leg of the complainant, hence question of breakage of plate implant does not arise. The opposite party No. 2 specifically denied that after discharge on 09-08-2009 till January, 2010, nothing more was done by opposite party No. 2 for treating the complainant. In fact, the complainant approached the opposite party No. 1 on 24-12-2009 and complained pain in his right leg. Accordingly, the opposite party No. 2 was called and the complainant was admitted in the Hospital. He was clinically observed and X-ray including necessary tests were got conducted. From the X-ray, it was found that there was breakage of nail inserted in the first operation and the said breakage could have occurred on account of heavy weight bearing and initial nature of injury sustained by the complainant in the accident in question and as such, it was required to be replaced and surgery was required for the same. The complainant after duly understanding the said requirement, signed the consent form alongwith Balbir Singh, who represented himself as his brother. Accordingly, after admitting the complainant, the preparation for operation of right leg of the complainant was done. Spinal anesthesia by the Anesthetist and nail already inserted was removed, plate osteosynthesis with bone grafting was done in right tibia bone. All the proximal and distal screws were removed. The broken proximal part was hammered out of entry portal by making perforation in anterior tibial right cortex, distal part of nail was also removed in the similar manner, marrow cavity was properly lavaged with normal saline and betadine. Irrigation under pressure with antibiotic solution was done from the wash, the straw coloured fluid full of blood clots was found that there was some infection the reduction was achieved by fixing with DCP (Dynamic Compression Plate) 10 holes. Appropriate screws proximally and distally were put and proper compression was done. Bone grafting was also done from the same side Iliac Crest. Thereafter the incision was closed in layers over suction drain and then proper and requisite POP was slab above knee of right leg was applied and the patient was shifted after proper observing and considering the condition of the patient to be satisfactory. Accordingly the patient was given requisite treatment from 24-12-2009 till his satisfactory discharge on 27-12-2009. On 27-12-2009, the complainant demanded all his X-rays and treatment files and duly received all the original X-ray and photocopies of the treatment files against a receipt. Nothing was charged from the complainant for admission, treatment, operation for the period 24-12-2009 to 27-12-2009 and that is why the complainant has not mentioned anything regarding this treatment. The complainant never visited opposite party No. 2 after December, 2009. The complainant has not produced any record of treatment at Amritsar. There was no requirement of second operation because the complainant was recovering well and could have been treated conservatively without operation even for the infected portion by retaining the implant inserted by the opposite party No. 2. The opposite party No. 2 pleaded that the treatment given and the mode of treatment adopted by him was strictly as per the medical science and also as per the circumstances, condition of the patient and facilities available at Bathinda. The complainant has not mentioned even a single word as to what was the defect or deficiency in the service of opposite party No. 2 or what was the necessity of operation dated 27-02-2010 and 21-04-2010. The doctor at Amritsar had not mentioned even a single word that the mode of treatment adopted by the doctors at Bathinda was not correct as per the medical science or that some other better way or mode of treatment was available or should have been adopted in the given circumstances at the time when the complainant was treated at Bathinda in those set up circumstances. The opposite party No. 2 is duly qualified Medical Surgeon especially in Ortho and as such at that stage, he did not felt any necessity to refer the complainant to some other doctor.

5. The opposite party No. 4 filed its separate written reply and denied that opposite party No. 1 has obtained any Doctor's Professional Indemnity Policy from opposite party No. 4. Only opposite party No. 2 has obtained the Insurance policy.

6. Parties have led evidence in support of their pleadings.

7. Arguments heard and written submissions submitted by the parties perused.

8. The complainant met with an accident and sustained multiple injuries on his various parts of the body including (L) thigh knee fracture (R) leg-knee fracture and (R) leg-ankle fracture etc., He was admitted in the hospital of opposite party No. 1 on 3-8-2009 and after conducting pre-operative tests, the opposite party No. 2 performed operation upon the complainant in the hospital of opposite party No. 1.

   The main allegation of the complainant is that after conducting operation and implantation of plates and rods, the opposite party Nos. 1 & 2 conveyed that operation is successful and the complainant would be completely cured within 3 months. He was discharged from the Hospital on 9-8-2009 and some medicines were prescribed and he was asked for regular check-up, but even after the operation and regular check-ups, the complainant felt pain. Then the opposite party Nos. 1 & 2 referred the complainant to Omega Diagnostic Centre, Bathinda for X-ray on 7-9-2009 and doctor of Omega Diagnostic Centre, Bathinda did not give any report and orally conveyed that there is a breakage in the plates implanted by opposite party Nos. 1 & 2. The complainant kept on visiting opposite party Nos. 1 & 2 for treatment and regular check-ups till January, 2010, but the pain did not subsidize and the complainant was unable to stand and move. In the month of January, 2010, the complainant visited Dr. Gurvinder singh's Hargun Hospital, Amritsar, who after conducting the X-rays and check-ups, opined that there is gross negligence in the treatment and operation conducted by opposite party Nos. 1 & 2. The complainant was admitted in the said hospital at Amritsar and operation was conducted on 27-02-2010 and he was discharged on 10-03-2010. His another operation was conducted on 21-04-2010 and he was discharged on 29-04-2010. The complainant alleged that he is still under treatment of doctor at Amritsar. He has also alleged that the opposite parties got deposited Rs. 1.00 Lac from the complainant but issued receipt only for Rs. 55,000/-.

9. Dr. Nitin Aggarwal, opposite party No. 2 operated the complainant. His affidavit Ex. R-17 is on the file wherein in para No. 15 he has deposed :-

   “That the complainant has knowingly, willingly with malafide and dishonest intention concealed material facts from this Forum. As per the records first of all immediately after the alleged accident, he was taken to hospital of Dr. Mohinder's Ortho and General Hospital, Malout Road, Abohar. As per the treatment slip of said doctor, he found wound on scalp, fracture skull, composite fracture both bones right leg etc., and he had given following treatment on 01-09-2009 at Abohar :-

   Under Local Anesthesia (LA)

   i) Wound on scalp stitched ASD (Anti Septic Dressing)

   ii) Wound on Rt. Leg stitched

   iii) CR (Closed Reduction) done POP S (Slab)

   iv) Wound on right hand stitched ASD

   v) Knee brace on left thigh given

   Besides above treatment, medicines etc., were also given to the complainant, as per slip prescription slip dated 01-08-2009 of Dr. Mohinder Goel.”

   This version of opposite party No. 2 is fully proved from the prescription slip dated 1-08-2009 Ex. R-6 of Dr. Mohinder Goyal of Mohinder's Ortho & General Hospital, Abohar.

   In para 18 of affidavit Dr. Nitin Aggarwal, i.e. opposite party No. 2 has stated :-

   “That on 01-08-2009, after getting treatment from Dr. Mohinder Goel, Abohar, the complainant was brought to him for treatment and he was admitted as Indoor patient, after getting consent form duly explained and also narrating the risks involved in the treatment, to the attendant of complainant and necessary/requisite treatment available in Hospital of opposite party No. 1, was given to the complainant, as per medical science and course available. As there was head injury (Wound Over Scalp), so NCCT Head (Non contrast Computed Tomography of Head) i.e. Scan of Head was got performed and following report was given :-

   Posterior Fossa :

   4^th ventricle is normal

   Both the cerebellar hemispheres are normal.

   The Cerebello-pontine cisterns are partially effected.

   Supratentorial Region :

   Both cerebral hemisphere show extensive vasogenic cerebral edema.

   *There is pneumoencephlus present.

   *The lateral ventricles are partially effaced.

   *The third ventricle is partially effaced.

   *On bone window, there is fracture of the nasal bones, lateral wall of the left orbit, front-o-parietal bones on the left side with fracture of the lateral wall of right orbit and fracture of right zyomatic arch.

   *The cephalhematom is seen in the orbital areas and the o parietal areas.

   It is also a matter of record that necessary tests as required were also conducted before giving the requisite treatment to the complainant.

   19. That as per the X-ray and examination of the right leg of the complainant, fractures were observed in both bones i.e. Tibia and Fibula. Accordingly a team of competent doctors was arranged and before operation, spinal anesthesia was given by Anesthetist, the parts were cleaned and draped, wound over right leg was irrigated and pulsed lavage with NS (Normal Saline) and betadine. Irrigation with gentamicin and Inj. Supacef was done, Debridement and curettage done with proper care of soft tissues and vital structures, closed reduction was achieved and C arm and entry portal was made over proximal tibia, guidewire was inserted and fracture was reduced under C arm, guidewire centralized undreamed and interlocking nail of 9 x 38 mm with proximal and distal locking was inserted in the right leg, over guidewire. The compound skin wound was lossesly stitched of the right leg. So far as left thigh of the complainant is concerned, after clinically observing and making necessary investigations and also after going through the X-ray of left thigh, anterolateral skin incision was given, as the fracture was found to be badly comminuted with complete destruction of articular joint surface, so open reduction was done under direct vision with complete restoration of articular surface and cross checked under C-arm, two cannulated screws were fixed with washers, proper debridement and irrigation with Normal Saline and antibiotics was done. The incision was closed in layers over suction drain land thereafter POP slab was applied above left knee lower limb. After making proper observations and waiting for sufficient time and considering the condition of the patient/complainant to be satisfactory, he was shifted out of Operation Theater to Recovery Room.”

   The said version of opposite party No. 2 gets fully strengthened from patient's file Ex. R-9 and prescription slip dated 9-08-2009 Ex. C-2 wherein it has been clearly mentioned : “Avoid weight bearing”.

   The opposite party No. 2 has deposed in para Nos. 20 & 23 of his aforesaid affidavit :-

   ......20. That complainant remained as Indoor patient in Hospital of opposite party No. 1 upto 9-8-2009 and was discharged in satisfactory condition. At that time, he was given instructions orally for do's and dont's and was specifically instructed to avoid weight bearing, besides taking medicines so mentioned in the slip for 7 days and thereafter to come for follow up.”

   22. The complainant had approached the opposite party No. 1 on 24-12-2009 and complained pain in his right leg. Accordingly, the opposite party No. 2 was called and the complainant was admitted in Hospital. He was clinically observed and X-ray besides necessary tests were got conducted. From the X-ray it was found that there was breakage of nail inserted in the first operation and the said breakage could have occurred on account of heavy weight bearing and initial nature of injury sustained by the complainant in the accident in question and as such, it was required to be replaced and surgery was required for the same. The complainant and his attendants were duly made to understand about the said requirement of surgery and also about the risk involved in the same. Accordingly, after admitting the complainant, the preparation for operation of right leg of the complainant was done. Spinal anesthesia by the Anesthetist and nail already inserted was removed, plate osteosynthesis with bone grafting was done in right tibia bone. All the proximal and distal screws were removed. The broken proximal part was hammered out of entry portal by making perforation in anterior tibial right cortex, distal part of nail was also removed in the similar manner, marrow cavity was properly lavaged with normal saline and betadine. Irrigation under pressure with antibiotic solution was done from the wash the straw coloured fluid full of blood clots was found that there was some infection the reduction was achieved by fixing with DCP (Dynamic Compression Plate) 10 holes. Appropriate screws proximally and distally were put and proper compression was done. Bone grafting was also done from the same side Iliac Crest. Thereafter the incision was closed in layers over suction drain and then proper and requisite POP slab above knee of right leg was applied and the patient was shifted after proper observing and considering the condition of the patient to be satisfactory. Accordingly the patient was given requisite treatment from 24-12-2009 till his satisfactory discharge on 27-12-2009. On 27-12-2009, the complainant demanded all his X-rays and treatment files and duly received all the original X-ray and photocopies of the treatment files against a receipt. Nothing was charged from the complainant for admission, treatment, operation for the period 24-12-2009 to 27-12-2009 and that is why the complainant has knowingly, intentionally and willfully not mentioned anything regarding this treatment taken by him in the Hospital of opposite party No. 1”

   The aforesaid version of opposite party Nos. 2 fully proved from Patient file Ex. R-16.

10. The main allegation of the complainant is that there was continuous pain in his leg and he was unable to stand and move. He visited Dr. Gurvinder Singh's Hargun Hospital, Amritsar where complainant was got admitted and his two operations were conducted i.e. on 27-02-2010 and 21-04-2010. The complainant has alleged that on 7-9-2009, the doctor of Omega Diagnostic Centre orally conveyed that there is a breakage in the plates implanted by opposite party Nos. 1 & 2. The complainant has himself admitted that doctor of Omega Diagnostic Centre orally conveyed to him that there was breakage in the plates implanted by opposite party Nos. 1 & 2. The complainant has neither placed on file any X-ray or affidavit of the doctor to prove his this version. Moreover, the record produced on file does not reveal that any plate was implanted in the leg of the complainant. During the pendency of the complaint, the opposite party No. 1 moved an application on 4-4-2011 requesting this Forum to allow correction in his affidavit on the ground that inadvertently and due to some accidental omission the applicant/opposite party No. 1 in his affidavit has mentioned that the complainant was advised to undergo operation for' implantation of plates and rods', but in fact the complainant was advised for 'inter locking nail with proximal and distal locking in the right leg of the complainant' and the said fact has already been mentioned in the medical record of the complainant which has already been placed on file. The said application of opposite party No. 1 was dismissed by this Forum vide order dated 13-04-2011 to avoid delay in proceedings and keeping in view the fact that opposite party No. 1 is a non-medico person and the operation upon the complainant was performed by opposite party No. 2 and it is the admitted fact of the parties. The report of Omega Diagnostic or film is not on the file which can be the best piece of evidence for the complainant to prove his version which he has failed to do so. So far as two operations conducted by Dr. Gurvinder Singh of Hargun Hospital, Amritsar, are concerned, the complainant has produced on file prescription slip Ex. C-5 of Dr.Gurvinder Singh wherein it has been mentioned :-

    “Old non-united # Tibia (R)

    Non united # Femur (L)”

    Op. Notes “ Removal of implant with External fixation with LLD..ASD done”

    In Ex. C-6 i.e. Discharge Card of Hargun Hospital Diagnosis has been mentioned as “Malunited # femur (L) lowerend”

    Dr. Nitin Aggarwal has specifically mentioned in para No. 24 of his affidavit Ex. R-17 :-

    “...As per the opinion of deponent there was no requirement of second operation because the complainant was recovering well and could have been treated conservatively, without operation even for the alleged infected portion, by retaining the implant inserted in the hospital of opposite party No. 1. The medical science and theory available so far does not disprove that any such alleged infection associated with implant can be treated by retaining the said implant and treating the same by using a standarized antimicrobial protocol and such infection for less than one year, a stable implant, no sinus tract and it has been held that it is known pathogen which is susceptible to recommended antimicrobial agents. The probability of survival, without failure of treatment in such treatment of infected retained implants as per the medical studies was found to be 96% at one year, 95% confidence interval (CI) 88 to 100, 92% at two years (95% CI 80 to 100) and 86% at three years (95% CI 72 to 100). So as per the latestl medical studies, patients with a short term infection but with a stable implant, no tract and a known pathogen may be successfully treated by retention of the implant and the use of a standarized regimen of antimicrobial treatment. It is also important to mention here that as per medical science, the non-union of bone can only be termed or declare after passage of certain time ranging from 6 to 9 months. The deponent does not say or plead that the doctor at Amritsar should have not adopted the recourse alleged to have been taken there nor the deponent is aware of fact as to what treatment actually was given to complainant at Amritsar, but however the deponent reiterates his stand that the treatment given and mode of treatment adopted by the deponent was strictly as per the medical science.”

11. The complainant has not produced any expert evidence on file to rebut aforesaid version of the opposite party No. 2 whereas the opposite parties have produced on file affidavit Ex. R-14 of Dr. Gurinder Singh Mann who has deposed :-

    “That I did my MBBS in the year 1993 and then MS Ortho from Govt. Medical College and Rajindra Hospital, Patiala in 2004 and thereafter joined as Orthopedic Specialist in Civil Hospital, Rampura.

    .....That I have seen photocopies of treatment records/files of patient Rajbir Singh S/o Harpal Singh R/o Village Katianwali who got treatment on 01-08-2009 from Dr. Mohinder's Ortho and General Hospital, Malour Road, Abohar. Then from Deep Multi/Super Speciality Hospital, Bathinda for the period 01-08-2009 to 09-08-2009 and 24-12-2009 to 27-12-2009.

    ....That as per my observation the patient Rajbir Singh was given best possible treatment in Deep Hospital Bathinda and there was no medical negligence on the part of Dr. Nitin Bansal who operated upon twice the said patient, as per the circumstances required.

    .....That the treatment course adopted by Dr. Nitin Bansal in this case is fully viable, as per medical science and appropriate for the circumstances and there was no medical negligence or carelessness in any manner”

12. The opposite party No. 2 has stated that infection can be treated by giving conservative treatment and that could have been cured by the opposite party No. 2 but the complainant never visited opposite party No. 2 after December, 2009. Thus, a perusal of documents placed on file reveals that the complainant has failed to produce any expert evidence on the file to prove that there is any negligence on the part of opposite party No. 2. The support can be sought from the law laid down by the Hon'ble National Commission, New Delhi in the cases : -

2004(2) CLT 269 Mam Chand Vs. G S Mangat of Mangat Hospital wherein it has been held :-

“(i) Medical negligence – Fracture in leg – Operation after four days of accident and fixed “L” plating – Gangrene developed and leg had to be amputated – Plea of medical negligence as it should have been treated from outside i.e. use of plaster and traction – Held that both the lines of treatment were in order – Doctor cannot be faulted, if he adopted one of them – State Commission held right in rejecting this instance of negligence on the part of the Doctor.

(ii) Medical negligence – Burden of proof – Allegation of medical negligence is a serious issue – It is for the person who sets up the case to prove negligence bases on material on record or by way of evidence.”

Case titled 2009(4) CLT 466 Malka Tarannum Vs. C P Gupta & Anr wherein it has been held :-

“Medical negligence – Fracture of hand- Temporary plaster applied by respondent No. 1 – After a few days permanent plaster applied by respondent No. 2 and the hand of the child fully treated and fracture has fully joined – Allegation of improper applying plaster by respondent No. 1 and medical negligence on his part – Held that doctors who treated and applied the plaster on the fracture are fully qualified and experienced whose professional judgement is being questioned not by way of any expert evidence but on mere allegations – Medical negligence is not proved in the case”

Case titled 2008(1) CPJ 488 (NC) Sarangapani Vs. Bone & Joint Clinic, wherein it has observed :-

... Medical negligence – Surgery – Neck of femur bone fractured – Surgery conducted – Condition not improved – Second surgery performed – Deficiency in service alleged – Complaint allowed by Forum – Order set aside in appeal – State Commission held, non-union of fractured neck due to age of patient, his general condition, reduced vascularity of area, coupled with reluctance to follow advice of O.Ps pre or post surgery – Second surgery not performed to correct mistake made in first surgery – It was done to replace joint on account of non-union of bone – No expert opinion filed to counter opinion given by treating doctor – Order of State Commission upheld in revision.”

The support can also be taken from the law laid down by the Hon'ble Supreme Court in the cases :

(i) Titled 2010(2) RCR (Civil) 161 Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others – wherein it has been held that :-

“......7. 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.”

(ii) Titled 2005(3) RCR (Criminal) 836 Jacob Mathew Vs. State of Punjab & Anr., wherein it has been held :-

“ ....(3) No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake.

(4) A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”

Further the support can also be sought from the observations of the Hon'ble National Commission in the case titled AIR 2008 (NOC) 1999 (NCC) 603 wherein it has been held that :-

....Medical negligence – Proof – Fracture of femur bone – Complainant patient was operated upon and steel rod was fixed in his right thigh – But complainant did not take necessary precautions after surgery – He put more weight than required on the fractured leg – Failure to take anti-biotics regularly and restorted to homeopathic treatment – Complainant later on had accidental fall in the bath room which necessitated second surgery – Complainant suffered infection and loosening of nail – No medical negligence.”

4. The objection taken by the learned counsel for opposite parties that before issuing any notice to doctor for medical negligence, an expert opinion is required, is devoid of merit in view of the law laid down by Hon'ble Supreme Court in case titled V. Kishan Rao Versus Nikhil Super Speciality Hospital & Another Civil Appeal No.2641 of 2010 (Arising out of SLP (C) No.15084/2009) D/d 08.03.2010 RCR (2) 2010 wherein it has been held:-

“(A) Consumer Protection Act, 1986, Sections 23 and 3 – Medical negligence – Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of doctor – It is not required to have expert evidence in all cases of Medical negligence.

(H)(i) An expert witness in a given case normally discharges two functions – The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man – The other function is to assist the Fora is deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence.

(H)(ii) In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. (1988) 2 SCC 602,(1990) 3 SCC 682 relied”

14. The allegation of the complainant with regard to the name of the doctor i.e. opposite party No. 2 is that sometimes he writes himself as Nitin Aggarwal and on some occasions he represents himself as Nitin Aggarwal. The opposite party No. 2 has submitted that there are sub- castes in his caste, so he sometimes use 'Bansal' and sometimes 'Aggarwal'. But the doctor/opposite party No. 2 is directed to represent himself with only one full name as he has got registered in his academic certificates or to represent himself as 'alias' to avoid any complications.

15. With utmost regard and humility to the authorities relied upon by the complainant, they are distinguishable on facts.

16. Thus, keeping in view the facts, circumstances and the record produced on file by the parties, this Forum is of the considered view that the opposite party No. 2 has acted in accordance with practice accepted as per proper by responsible body of medical man skilled in that particular art while treating the complainant. Hence, complainant has failed to establish medical negligence/deficiency in service on the part of opposite parties. Accordingly complaint being devoid of merits, is dismissed. Parties are left to bear their own costs.

     

     

17. A copy of this order be sent to the parties concerned free of cost

and the file be consigned to record.

Pronounced :

27-06-2011 (Vikramjit Kaur Soni)

President

( Amarjeet Paul)

Member