BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 180 of 2011
Date of Institution : 29.7.2011
Date of Decision : 8.8.2016
Sohan Lal son of Shri Amar Singh, r/o village Kairanwali Post Office makhosharani, tehsil and distt. Sirsa.
….Complainant.
Versus
Dr.Y.K.Chaudhary, MBBS, D.Ortho, c/o Chaudhary Orthopedic and General Hospital, Sirsa.
..…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA……………………….PRESIDENT
SHRI RANBIR SINGH PANGHAL……MEMBER.
Present: Sh.V.S.Sihag, Advocate for the complainant.
Sh.Jagwant Singh, Advocate for opposite party.
ORDER
In brief, complainant case is that on 11.2.2009 he met with an accident and sustained multiple fractures on his person i.e. on his left leg, thigh and neck etc. He was brought to the hospital of opposite party. After medical examination, doctor suggested that rod is to be inserted in his left leg and demanded Rs.12000/- as cost of rod plus Rs.15000/- operation charges besides the cost of medicines. It was assured by the op that after operation, complainant would be able to walk with the support of walker. After operation, when the complainant gained consciousness, there was a plaster on his full leg. Thereafter, complainant used walker 4/5 months. As alleged, there was acute pain in the leg since the day of operation, for which complainant visited several times to the Op, who never disclosed that rod has been broken down during the installation process and advised for pain killer. Complainant got physiotherapy through C.P.M. machine and candle-light, but there was no relief. As alleged, Op adopting clever tactics and malfair practice and negligent profession, kept the complainant in dark and mis-guided the complainant. After that, complainant approached Dr.Parveen Chawla of Model Town, Hisar and shown him the discharge summary provided by the Op and on examination and conducting the necessary tests, pointed out that the rod has been broken inside the leg, upon which the complainant mentally shocked and approached the Op doctor, who assured that complainant can get the operation done from anywhere and op will suffer all the expenses of the operation and gave the false assurance to the complainant, but thereafter, he did not pay any heed to the genuine claim of the complainant. Complainant got further treatment from Chawla hospital, Hisar where broken rod was removed. At that time, it was pointed out that rod inserted was having cost of Rs.4000/- only. As alleged, for second operation complainant incurred Rs.2 lacs which was only due to negligence of the op doctor, who used misbranded and low quality rod. Complainant also suffered loss of business etc. Hence, this complaint.
2. On notice, all the opposite parties appeared and contested the case by filing their written version alleging that complaint is bad for non-joinder of necessary party because the Nursing Home of the op is insured with Oriental Insurance Company, Sirsa and OIC is necessary and proper party to the complaint. It is further replied that complainant was admitted on 11.2.2009. He had received injuries in an accident. He suffered with multiple fractures i.e. fracture neck of Femur left, fracture shaft of femur left, fracture patella left un-displaced. Before operation, consent of the complainant and his family members were taken. Operation was started after necessary tests etc. The said operation was conducted as per norms and as per medical requirements. The condition of the patient during stay in hospital was upto norms and there was major improvements. There was no complaint from complainant side and hedischarged from the hospital on 25.2.2009. The respondent applied the required nail/instrument as per modern technique on the left thigh being expert and competent to perform the operation of the complainant. It is further replied that operation was conducted on 11.2.2009 and patient was discharged on 25.2.2009, whereas the present complaint was filed on 29.7.2011 after a period of more than two years. As such the complaint is time barred. It is further applied that a mere assertion by the complainant that the treating doctor as negligent not sufficient to prove the negligence. It is further applied that instrument (alleged rod) was purchased by the complainant and his family members and op has no concern with the purchase of the rod. A false figure of treatment and expenses had been given. Op further denied remaining allegations of the complainant.
3. By way of evidence the complainant has produced his affidavit Ex.C1,
photocopy of bills Ex.C2 to Ex. C8, photo copy of treatment notes Ex.C9 and Ex.
C10, photo copy of doctor prescription Ex. C11 to Ex. C13, photo copy of printer test
page Ex.C14, photo copy of complaint Ex.C15, photo copy of doctor prescription
Ex.C16, photo copy of account Ex.C17, photo copy of medical papers Ex.C18and
Ex.C19 photo copy of complainant’s account Ex. C20 to Ex. C25, whereas OP doctor
produced his affidavit Ex.R1, statement of Op before enquiry report Ex. R2, photocopy
of statement of complainant and OP doctor and one Jagroop Kaur before police Ex.
R3 to Ex.R5, Police reports Ex. R6 to Ex. R8, photo copy of record of treatment Ex.
R9 to Ex. R16.
4. We have heard learned counsel for the parties and have gone through the record of the case file carefully.
5. Before discussion on the other points, it is necessary to point out that on receipt of complaint, copy of complaint was forwarded to the Civil Surgeon, Sirsa for necessary enquiry, who vide his letter dt. 17.10.2011, intimated that as per patient the nail has broken during operation, it is only possible by seeing immediate post operative X-rays whether nail was broken during operation or not. In their opinion, a broken nail is never inserted because it is not possible to do so. So, the negligence of doctor can only be proved by seeing post operative x-rays which were never shown to them by either parties. Besides it, there is no expert opinion on the record to establish the negligence of the Op doctor. To cover the plea of limitation, ld. counsel for complainant cited the case law titled Saroj Chandhoke Vs. Ganga Ram Hospital, III(2007) CPJ 189 (NC), but the facts of that case are not similar to the facts of present complaint because in the case cited, operation was conducted on 21.6.1993 and the patient stayed in the hospital upto 14.3.1994 and the complaint was filed on 13.3.1996, but in the present case complainant was discharged from the hospital on 25.2.2009 and the present complaint has been filed on 29.7.2011. In our view, present complaint is time barred.
6. Now, coming to the merits of the case, there is nothing on the record to show that broken rod has been inserted by the Op or it has been broken during the process of operation. As per the opinion of Civil Surgeon, Sirsa, this is only possible by seeing immediate post operative x-rays, but there is no such x-ray on the record nor has been produced by either of the party before any enquiry. The treatment given by Chawla Nursing Home, Hisar where second operation has been conducted also not support the version of the complainant. In the present case, on the basis of relevant record, it cannot be said that the Op doctor who is an D.Ortho and General Surgeon committed any negligence during the process of operation. It is an established principle of law based on prescribed medical standard that the doctor has right to choose line of treatment of his choice in the given circumstances of the case. When a patient approached him, the doctor had the option to choose to treat him or refuse to take up the case except in emergency cases where the patient’s life is considered to be in danger. A doctor cannot be considered negligent merely because his conclusion on diagnosis and line of treatment differs from that of the other medical professional. Every mistake committed by the doctor cannot be treated as negligence. The medical professional are entitled to get protection to long as they perform their duties with reasonable skill and competence and in the interest of patients. In the present case, complainant failed to establish the allegations of complaint against the Op by producing relevant and cogent evidence. Regarding charging higher side by the Op doctor is also not proved on the record. In view of Ex.C9 second operation of the complainant was conducted on 7.11.2010 whereas the first operation by the op doctor was conducted on 11.2.2009 and he was discharged from op hospital on 25.2.2009. As such, there is a gap of more than one and half year between the date of discharge from op hospital and date of second operation. In that period of one and half year the possibility of rod breaking cannot be denied due to any other reason i.e. fallen of complainant or lifting of heavy things and due to some other careless act of the complainant himself. In the absence of any expert opinion and cogent evidence, Op doctor cannot be blamed straightway. In these circumstances, we are of the considered view that complainant failed to bring home the allegations of the complaint against the op doctor. As such, present complaint stands dismissed with no order as to costs.
Copy of this order be supplied to the parties as per rules. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated: 8.8.2016 Member District Consumer Disputes
Redressal Forum, Sirsa.
