This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for compensation of Rs.20,00,000/- from the O.P and other reliefs.
The case of the complainant in short is that he has met a motor cycle accident on 28.05.14 and received fractured injury in his right forearm. He consulted with O.P.No.1 on 29.05.14 who advice some examination and investigation and he was also admitted on that date in the nursing home ( O.P.No2) and also operated upon on that day. Steel plate was set in his forearm. He remained admitted for three days and was discharged on 31.05.14. Complainant alleges that he thereafter was suffering from serious pain and was assured by the O.Ps that pain will reduce within few days, but with no improvement. O.P.No.1 gave him discharge certificate but was giving treatment for his pain up to 16.10.14. The petitioner having no other alternative of respite from severe pain in his right forearm he went to Chennai and he was treated at Apollo Hospital by Dr. R.Gopal Krishnan, Chief Orthopedic Surgeon. He gave him treatment from 27.10.14 and as per his advice complainant undergone E.C.G., X-ray and other examination for serious discharge from the distal part of incison scar over radius tenderness, tenderness over radius, implants palpable ROM wrist dossi flexion restricted and painful pronation etc. Dr. Krishnan operated upon the complainant on 28.10.14 and discharged on 29.10.14.
On 13.04.15 Dr.Krishnan perform another operation and after few days of his treatment he was cured and normal.
Petitioner alleges that he was suffering from continuous pain from infection after the treatment of O.P.No.1 Dr. Anindya Sarker and it is defect and negligence of Dr. Sarker and total negligence of Nursing Home Authority O.P.No.2. That the complainant undergone severe illness and pain before he was treated by doctor at Chennai. He also suffered a heavy financial loss, mental pain and agony for such negligent treatment of O.Ps and therefore he files this case praying for compensation of Rs.20,00,000/- from O.P.Nos.1 and 2.
O.P.Nos.1 and 2 contested this case by filing written version where he categorically denied all the allegations of the petitioner but admitted that on 29.05.14 O.P.No.1 perform operation on the forearm to join the fracture of bone of the complainant. That, O.P.No.1 first gave some medicine then clean and saved the wound place on 29.05.15 at 7 p.m. and performed operation by open reduction and internal fixation with plate and screws. After careful cleaning with medicine and normal saline he also advised him medicines. On 30.05.15 X-ray was done on the patient’s fracture wound and found O.K. Dressing was done on 30.5.15 and 31.05.15 and he was released from Nursing Home on 31.05.14. He was advised for taking medicines, mentioned in the discharge certificate and also was given other advices. That, doctor was quite vigilant and careful to the injury of the patient from very beginning, initiated treatment promptly from 29.05.14. The patient collected fit certificate on 29.07.14 which proves that he was fit enough.
O.P.No.1 further stated that the infection the complainant suffered from later on is a recognized complication of such type of injury which is mentioned in the medical text books. That the Ulna was united by the same operation and doctor was correct in his treatment modalities. The treatment offered by the doctor to the petitioner namely open reduction and internal fixation of technically compound of both bone of forearm was based on standard orthopedic treatment protocol. O.P. No1 has nothing to say regarding the treatment he received from Dr. Krishnan at Chennai. He denied that the complainant was suffering continuous pain for infection after operation by O.P.No.1 or that there was no improvement or that O.P.No.1 was default and negligent in giving treatment or total negligence of the nursing home, O.P.No.2 etc. O.P.No.1 therefore prays for dismissal of this case.
O.P.No.2 in his written version admitted that 29.05.14 that Dr.Sarker performed operation in the nursing home of O.P.No.2. That, after the operation the patient became well and did not make any complaint and was accordingly discharged from nursing home where he was attended with due care and without any negligence. The pain he complained of after operation was not unusual and the patient was assured that it will subside. That O.P.No.2 has no deficiency in service in giving treatment to the petitioner by O.P.No.1 and therefore prays for dismissal of this case.
DECISION WITH REASONS
Petitioner has been examined as P.W.1 and he filed documents, of prescription of O.P.No.1 and documents of Nursing home O.P.No.2, reports of investigation, documents of treatment of Apollo Hospital, Chennai. O.Ps did not adduce any evidence but they filed documents citing some rulings of National Commission and Hon’ble Supreme Court and copies from the text books of medical laws and ethics. O.Ps also filed written argument.
After hearing both sides and on perusal of the documents filed by the parties and in considering the examination and cross examination of P.W.1 and giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -
That the petitioner has been able to prove by sufficient oral and documentary evidence that he was treated by O.P.No.1 at the Nursing Home of O.P.No.2 from 29.05.14. He was operated upon by O.P.No.1 and was discharged on 31.05.14. On 29.07.14 he collected fit certificate. Complainant alleges that he was under treatment of O.Ps up to 16.10.14 and was suffering from serious pain so he went to Apollo Hospital, Chennai for further treatment. But there is no sufficient documents to prove that he was suffering from serious pain due to medical negligence of O.Ps. Moreover petitioner suppressed the fact in his complaint that before his treatment by O.P.Nos.1 and 2 he was treated at Raiganj hospital where he was first taken after the motor cycle accident. Moreover, he contradicts in his cross examination that he received fracture injuries on his right forearm due to accidental fall on the “Kalpar” (on the platform of tube well/tap water). He further admits in cross examination that he was taken to Raiganj hospital and was admitted there and he spent a night and then was taken to nursing home of O.P.No.2. He also admitted that after operation by the O.Ps X-ray was done and report was found O.K.. He again deposes that he did not collect all the reports of investigations from the nursing home and never applied for getting those papers. So, how he can challenge the treatment of O.Ps without having any such documents? He cannot say about the process of treatment doctor followed in the nursing home. He admits that he was given necessary advices and instructions he received after discharge from O.Ps. That, he complied instructions and followed the medicines etc. That, after discharge he remained at home for about 7 days and thereafter started free movement. He alleges he thereafter felt trouble in his hand and visited O.P1 twice, followed his prescription and medicines. So, it is not clear why he is alleging that he was suffering from acute pain before he went to Chennai Apollo Hospital admittedly after about 5/6 months in October 2014. He further admits that after discharge from the nursing home of O.Ps he joined his duty as usual. He received with fit certificate without any objection or complaint after recovery from operation at the nursing home of O.Ps.
In cross examination petitioner admits that after discharge from nursing home and after 10 days of such release he visited O.P.No.1. Then the dressing or bandage in his hand was removed and O.P.No.1 examined his wound. Therefore, petitioner was found O.K by the doctor. He was rightly cross examined by Ld. Lawyers of O.Ps that he was suffering from acute paid as he did not follow the post operation advice by not taking sufficient rest and care for his wound. He admits he started free movements after 7 days. There is no evidence to prove that petitioner has been suffering acute pain, or he visited O.P.No.1 repeatedly with such complaints or that O.P.No.1 failed and neglected to give him proper treatment for pain etc.
In cross examination he further deposed that he was treated and operated at Apollo Hospital from 27,10.14 to 29.10.14 and again on 13.04.15 and thereafter on 21 and 22 July 2015 he undergone successive operations at Apollo Hospital.
At the time of hearing argument petitioner cited reference of Hon’ble National Commission as reported in 2016 C.J.840 (N.C.) that in each case of medical negligence expert opinion is not necessary. In this case petitioner did not adduce any evidence by any doctor to prove that the treatment provided by O.Ps was not proper and there was negligence. In this judgement cited the doctors failed to take proper care to avoid gangrenous development in foot of a patient and Orthopedician failed to take proper care and proper follow up of the patient. The patient was operated on 06.10.97 and for gangrenous development his right leg was amputed on 15.10.97 and Hon’ble National Commission held that doctor was negligent in this case. This judgement is not applicable in our case as the petitioner was discharged from the nursing home after operation by O.P.No.1 with fit certificate, was able for free movement, visited doctor as usual thereafter twice, took medicine as per advice and therefore no question of negligence. He was treated at Apollo Hospital from 27.10.14 and he had undergone successive operations there. Doctor of Apollo Hospital never opined in any prescription or other medical papers about any negligence of treatment by O.P.Nos.1 and 2.
Ld. Lawyer for O.P submitted decision of Apex Court as reported in 2009(2) C.Cr. L.R (S.C) 563 and argued that simply because a patient has not favorably responded to a treatment given by a doctor, or a surgery has failed, the doctor cannot be held straightway negligent by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which results in harm or injury to the patient, since the professional reputation would be at stake. Moreover, a man need not possess the highest expert skill. A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper. There is no evidence in this case that the conduct of O.P.Nos.1 and 2 fell below that of the standards of a reasonably competent practitioner in his field.
Ld. Lawyer for O.P argued by supplying some text from medical books that the infection he suffered from later on is a recognized complication in such type of injury which is mentioned in the books. It is a fact that he was discharged by O.P.Nos.1 and 2 on 31.05.14 after the operation in O.K condition.
In the light of our above discussion, after hearing lengthy arguments from both sides and on the basis of evidence on record as well as document filed and ruling cited by the parties this Forum can safely hold that the petitioner has not been able to prove by sufficient and cogent evidence that the O.P.Nos. 1 and 2 were negligent in giving treatment. As a result the case fails.
Fees paid is correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC – 83/2015 be and the same is dismissed on contest but without cost.
Let copies of this order be supplied to the parties free of cost.
