BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2008 AGAINST C.C.NO.147 OF 2005 DISTRICT CONSUMER FORUM-II AT RAJAHMUNDRY
Between
Goru Veerraju S/o Durgayya
Age 77 years, Rajahmundry,
East Godavari District
Appellant/complainant
A N D
Dr.D.Buddudu MBBS, D.Ortho
S/o Malleswara Rao, Siddartha Orthopedic
Hospital, Doctor, Hindu, age 45 years,
Lakshmivarapupeta, Rajahmundry
East Godavari District
Respondent/opposite party
Counsel for the Appellant Sri Chavali Ramanand
Counsel for the Respondent Sri M.V.Suresh
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
THURSDAY THE TWENTY FIFTH DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complainant is the appellant. The complainant has filed the appeal challenging the order of the District Forum whereby his complaint was dismissed.
2. The facts of the case as found in the complaint are that the appellant is a teacher by profession. After his retirement, the appellant engaged in holding tuitions. On 22-08-2002 at about 9.00 A.M. the appellant slipped whereupon he began to feel pain in his right wrist. The appellant contacted the respondent for treatment. The respondent after going through the X-ray report, advised for application of POP and after applying the POP, the respondent discharged the appellant. On 5-10-2002 after removal of the POP, it was observed that deformity was formed due to mal union on account of dislocation of the bone of the appellant due to which the appellant had lost to a great extent the movement of his three fingers. The appellant could not ride on cycle and he had lost an income of Rs.2,000/- per month as he could not write and he has been experiencing the pain even after undergoing treatment rendered by other doctors. The appellant got issued notice dated 11-11-2002 to the respondent who had not given any reply whereby the appellant filed the complaint seeking a sum of Rs.75,000/- towards compensation.
3. The respondent resisted the claim contending that on 27-08-2002, he conducted necessary clinical test and diagnosed the appellant with “Collese Fracture” and he had applied POP to the hand of the appellant. The respondent treated the appellant as out patient. After discharging the appellant as out patient, the respondent issued OP Chit dated 27-08-2002 and advised the appellant to visit him after six weeks or whenever the appellant feel necessary. The respondent prescribed medicine to strengthen the bones, antacid and pain relievers. The appellant had not consulted the respondent again. The O.P. Chit dated 12-10-2002 issued by Dr.S.Parthasarathy, Orthopedic surgeon, Government Hospital, Rajmundry indicates advice for physiotherapy, medicine to relieve pain and strengthen bones. The respondent explained the fracture injury suffered by the appellant, the treatment to be given and the follow up to be done. The respondent treated the appellant with extreme care and caution. After getting issued the notice, the appellant attempted to extract money from the respondent. The respondent refused to yield to the illegal demands.
4. The appellant was examined as PW1 and ExA1 to A8 had been marked. The respondent examined as RW1. No documents have been marked on the side of the respondent.
5. The District Forum dismissed the complaint on the premise that the respondent has exercised his skill with reasonable competence.
6. The appellant was diagnosed with Collese fracture on27-08-2002 by the respondent after the appellant was advised for X-ray of his right hand. The respondent had applied POP to the right hand of the appellant. The appellant has contended that he was treated as inpatient whereas the respondent has submitted that he treated the appellant as outpatient. The out patient slip marked as ExA1 establish that the respondent treated the appellant as out patient. The respondent in his evidence has stated that he had discharged the appellant after applying POP. The respondent has stated as under:
I submit that while treating the complainat as o.p., I gave the O.P.card dated 27-08-2002 which is filed as document no.1 along with the complaint.I further submit that , while discharging the complainant after applying POP, I gave the O.P chit dated 27-08-2002 document no.2 filed aling with the complaint.
7. If the respondent had treated the appellant as out patient, the question of discharging the appellant and the respondent issuing two chits does not arise. The respondent is a doctor and consciously stated that he discharged the appellant after applying the POP. The respondent in his cross examination has stated that he had applied the POP under general anesthesia. He has stated as,
“I follow different procedures for different types of fractures. For this type of fracture first we take x-ray and then manipulation under general anesthesia under control of mobile C.Arm intensifier unit. It is true that first treatment will be given for pain relief and later we have to obtain and reduction of fracture so as to encourage union of fracture”
8. The respondent refers to the ExA2 to contend that it does not show that he had applied POP under general anesthesia. The respondent states that he had not maintained records as the appellant was treated as out patient. We do not accept the contention as he has categorically stated that he had discharged the appellant from his nursing home as also that he had deposed that he would treat the type of fracture the appellant suffered, under general anesthesia.
9. The first stage of the negligence of the respondent is manifest by his statement that he had treated the appellant as out patient though the evidence on the record supports the plea of the appellant that he was treated as inpatient. The negligence of the respondent has come to the fore in the form of non-maintenance of the records which the respondent had attempted to shield under the guise of the outpatient treatment to the appellant. The respondent has opted to treat the fracture under general anesthesia for which he had to seek the consent of the appellant as also maintenance of the case proceedings till the appellant was discharged from his hospital. The respondent had not maintained any record from the time the appellant was admitted to his hospital till his discharge on the date of admission.
10. The next stage where the negligence is attributed in the treatment is the removal of POP on 5-10-2002. The respondent has conveniently omitted to state the treatment rendered to the appellant subsequently, even the respondent has not mentioned on which date the appellant has come to him. In the 6th paragraph of his affidavit, the respondent has stated as :
“I submit that subsequently, the complainant consulted me as out patient. I submit that during that visit, I have given O.P.Chit to the complainant and it is filed as document number 3 along with the complaint. I submit that when the complainant visited me on that date, he did not complain about any deformity / mall union. I submit that thereafter the complainant did not consult me again.
11. The appellant has stated that on 5-10-2002 when he visited the respondent it was known that his hand sustained deformity. The respondent has not advised for any X-ray on that day and as such it would be known only after the POP is removed. The respondent has all the time attempted to stress on the treatment rendered to the appellant as out patient. Even in that case, the respondent has the duty to record the removal of the POP, condition of the right hand of the appellant and follow up treatment. The respondent had neglected his duty at this stage of the treatment. The Hon’ble Supreme Court has approved the three ingredients of the Bolam’s test which the respondent has failed to satisfy inviting the inevitable conclusion against him.
12. Negligence has been defined in Halsbury’s Laws of England Ed.4 Vol26 at pages 17-18, as;
“Nelgigence : Duties owed to patient: A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose .such a 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 (b) A breach of any of these duties will support an action for negligence by the patient”
Lord McNair has given an excellent form to the definition of negligence and described in which circumstances a doctor can be held to have rendered been negligent in rendering treatment to the patient in Bolam vs Friern Hospital Management Committee (1957) I WLR 582 as ;
(i) a doctor is not 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.The direction, that where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for practitioner to follow one in preference to the other accords also with American law.
(ii) Before I turn that, I must explain what in law we mean by ‘negligence’. In the ordinary case which does not involve any special skill, negligence in law means this; some failure to do some act which a reasonable man in the circumstances would do,or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case, it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham Omnibus. He is the ordinary man. But where you get a situation which invlovles the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of Clapham Omnibus because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent.It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
13. Negligence per-se is defined in Black’s Law Dictionary as follows:
“Negligence per-se:- Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid municipal ordinance, or because it is palpably opposed to the dictates to the common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.As a general rule, the violation of a public duty, enjoined by law for the protection of the person or property, so constitutes”
13. The respondent in his evidence has stated that he advised the appellant to come for follow up after a period of six weeks or as and when the appellant feel necessary. The appellant consulted Dr.Parthasarathi Rao for the next course of treatment. Doctor Parthasarathi Rao had not advised for another X-ray nor did he prescribe any other test. The appellant had not found fault with the treatment rendered by Doctor Parthasarathi Rao. The respondent contends that the line of treatment adopted by him and Dr.Parthasarathy Rao is identical. The respondent had not advised for physiotherapy even after removing the POP and hearing the appellant complaining of pain.
14. The respondent has stated that the appellant had not come to him again after he had applied the Plaster of Paris on 27-08-2002. The appellant has stated that he had been to the respondent with the complaint after he was prescribed medicine on 27-08-2002.. According to the appellant on 5-10-2004, the respondent had removed POP and at that time it was found that the appellant had incurred deformity. The respondent prescribed some other medicine as borne out by ExA4. The appellant had got issued the notice to the respondent specifically stating that he followed the advice of the respondent as prescribed and on 5-10-2002 the respondent removed the POP. The respondent has not chosen to give reply to the notice of the appellant. Inaction on the part of the respondent in refraining himself from giving reply does not by itself a ground to come to the conclusion that the respondent was negligent. However, non-response to the notice of the appellant has to be considered in the light of the intentional suppression of the treatment rendered by him to the appellant.
15. The third stage where we come across the negligence on the part of the respondent is the allegation that he had rendered the same treatment as Parthasarathy Rao has done. As aforesaid, the negligence of a doctor cannot be determined in comparison with the treatment rendered by another doctor. The line of the treatment adopted by one doctor may differ with that of another doctor. However, if we take into consideration of the failure of the respondent to record the progressive stage of the treatment when the appellant came to him on 5.10.2002 it becomes clear that the respondent had not cared for advising the appellant to go for physiotherapy particularly, when the POP was removed, the deformity was manifest with the appellant complaining of loss of power of three fingers of his right hand. The negligence on the part of the respondent, as such is manifest at each and every stage of treatment rendered by him to the appellant. The District Forum ought to have based its findings on the evidence brought on record by the appellant. The respondent has not filed any documents and the documents relied upon by the appellant could have been perused by the District Forum in right perspective before coming to a conclusion against the contention of the appellant. As such we are inclined to allow the appeal and award an amount of Rs.15,000/- as compensation for the pain and mental tension suffered by the appellant.
In the result the appeal is allowed. The order of the District Forum is set aside. Consequently, the complaint is allowed. The respondent/opposite party directed to pay an amount of Rs.15,000/- together with costs of Rs.2,000/- in default the amount of Rs.15,000/- would carry interest @ 9% per annum from the date of filing of the complaint. Time for compliance four weeks.
MEMBER
MEMBER
Dt.25.11.2010
KMK*
