Order dictated by:

Mr.Anoop Sharma, Presiding Member

1.       Sh.Gurjit Singh Walia has brought the instant complaint under section 11 and 12 of the Consumer Protection Act, 1986 on the allegations that the complainant got fracture in his right leg in an accident about five years back and the complainant contacted the Opposite Party who after seeking the condition of the complainant, conducted the operation of the complainant and inserted rod in his right leg and after conducting the operation of the complainant, the Opposite Party told the complainant that  the operation is successful and incase the complainant will feel any inconvenience, he can remove the said rod after 4-5 years, otherwise there is no need to remove the rod. Opposite Party charged Rs.45,000/- from the complainant towards operation charges, hospital charges, medicine and other connected charges. In the month of February/ March, 2014 the complainant was facing difficulty in walking and was feeling pain on the operated part of his leg and on 6.7.2014, the complainant got checked up his operated part to the Opposite Party who advised the complainant to remove the rod/ nail from his right operated portion and assured the complainant that after removal of rod/ nail, the complainant will be OK and will not feel any inconvenience in walking nor will feel any pain and thus on the advice and assurance of the Opposite Party, the complainant admitted in the Opposite Party hospital on 6.7.2014 and the rod/ nail  was removed  from his right leg on 7.7.2014. Opposite Party charged Rs.25,000/- from the complainant towards operation fee and the complainant also incurred Rs.10,000/- towards medicine. After removal of rod/ nail, x-ray of the operated part of the complainant was got conducted and after seeing the x-ray, the Opposite Party told the complainant that the operation is successful and advised the complainant that he can go to Sri Ganga Nagar and on the basis of his advice, the complainant moved for Sri Ganga nagar in his conveyance. As the effect of the medicine was reduced, the complainant on the way to Sri Ganga Nagar felt severe pain on his operated part and he took the medicine as prescribed by Opposite Party, but he did not get any relief from the pain on the same day. Even after reaching Sri Ganga Nagar, he took the prescribed medicine, but did not get any relief from the severe pain and finding no other alternative, the complainant contacted Dr.Suresh Goyal Orthopedics Specialist at Sri Nagar on 14.7.2014 and he after seeing the condition of the operated portion of the complainant, got conducted the x-ray of the operated portion of the complainant and on seeing x-ray, it was found that the bone of operated  leg as well as knee of the complainant was broken down during removal of rod/ nail on 7.7.2014 due to medical negligence and carelessness on the part of the Opposite Party. Said Dr.Suresh Goyal laid temporary plaster on the bone of the right leg of the  complainant as permanent plaster could not be effected due to fresh stitches on the operated portion and the complainant was further advised  that the permanent plaster for 35 days would be effected only after  removal of stitches. The complainant on the reference of said Dr.Suresh Goyal contacted Dr.Vijay Ahula of Shree Bala Ji Hospital, Sri Ganga Nagar who also confirmed the breaking down of bone of the complainant during the course of removal of bolt/ nail by Opposite Party. As submitted above, after the operation of the complainant by Opposite Party on 7.7.2014, the x-ray of the operated part of the complainant was got conducted and the Opposite Party was fully aware that the bone of the right leg as well as knee of the complainant stands broken down due to their negligence and carelessness but the Opposite Party intentionally and willfully concealed this fact from the notice of the complainant and only prescribed pain killer medicines to the complainant and band the operated part of the operated portion of the complainant. The wife and son of the complainant contacted the Opposite Party and apprised him the actual and factual position and requested him to give proper treatment to the complainant regarding the broken bone during operation, but the Opposite Party flatly refused to accede to their request and expressed his inability to do anything into the matter.                       Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may kindly be directed to return the entire medical expenses i.e. Rs.35,000/- received by he Opposite Party as well as medicine expenses incurred by the complainant with interest thereon @ 18% per annum from 7.7.2014 till refund of entire amount.

b)      Compensation of Rs.10 lacs may also be awarded to the complainant.

c)         The costs of the complaint alongwith counsel fee as well as litigation expenses may also be  awarded to the complainant with any other relief to which he is found entitled under law and equity.

Hence, this complaint.

2.       Upon notice, Opposite Party No.1 appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that the complaint is legally not maintainable in the present form either on facts or under the law against the replying Opposite Party. The present complaint is gross abuse of process of law as the complainant has not approached with clean hands and various material/ vital facts have been concealed and distorted  version of facts  has been deliberately  put forth before this Forum with an ulterior motive to pressurise and harass replying Opposite Party unnecessarily. There is no evidence forthcoming to show that there is any negligence or deficiency or delay in service at the hands of replying Opposite Party during the course of treatment  of the patient or during relevant times, given by doctor who conducted the procedure upon the complainant at relevant time nor any act of deficiency or negligence or delay or omission or commission was committed by treating doctor. Opposite Party No.1 is senior most doctor of Amritsar  in the field of Orthopaedics and is well qualified  and proper skilled in the arena of medical science. The replying Opposite Party served as Orthopaedic at Government Medical College and Guru  Teg Bahadur Hospital and retired from there as such. At the relevant times such as during hospitalisation, Opposite Party No.1 was on standard scientific lines that is  to say adopted proper procedure while conducting  the procedure, which is recognised by medical science, and the patient was discharged from the hospital in satisfactory condition. The complainant i.e. patient was given requisite/ necessary pre, per and postoperative treatment including proper antibiotic cover/ medicines as per his requirement and treatment/ protocols and condition, it is trite to mention over here that no sensible professional would intentionally commit any act or commission which would result in harm or injury to the patient, since the professional reputation of the doctor would be at stake. A single failure may costs him dear in his lapse and if such a practice to involve medical practitioners in false cases of medical negligence continued, it would harm the fate of patients and every medical practitioner would take his patients as his future litigants, thus the present complaint is liable to be dismissed out rightly. Mere oral and bald/ hollow statement of the complainant that there was negligence or deficiency on the part of Opposite Party No.1 during the course of treatment of patient in question will not make Opposite Party No.1 negligent in this regard. It is a settled law as well as requirement of equity that one who alleges must prove. The complainant has not alleged in her complaint that how Opposite Party No.1 was negligent during the course of his treatment  or during relevant times and what the Opposite Party No.1 was supposed to do during the course of treatment. Therefore, complainant being lack of allegations deserves to be dismissed against Opposite Party No.1. Since as per allegations in the complaint, the matter in dispute needs or requires lengthy / voluminous and detailed evidence to prove either way as such the present matter can not be disposed of in summary trial under the Act allegations are of complex and complicated nature. Thus, the matter deserves to be relegated to the competent Civil Court of law for its proper and effective adjudication. Since the complainant has not produced complete treatment records with the complaint, which are lying with him and withheld the same for the best reasons known to him. The complainant has not produced any expert opinion on the record to show that there was negligence  on the part of Opposite Party No.1 who has conducted the procedure so negligently during relevant times or showing that Opposite Party No.1 has deviated from standard form of treatment prescribed for diagnosis of complainant or treatment/ operation was done wrongfully or negligently or wrong treatment was given to the complainant. On merits, it is submitted that five years back, the complainant came to the hospital of Opposite Party No.1 as he had fracture  of both bones of the right leg, which had  not properly united as such in order to unite the same, the operative treatment was essential and interlocking nail and bone grafting  was done at that time. The same was the recommended treatment in such cases. The operation was successful and the complainant was discharged in satisfactory condition. On 6.7.2014, the complainant came to the hospital of Opposite Party No.1 with chief complaint of pain and difficulty in walking for one month. The necessary investigations and x-ray of the right leg of the complainant was done. The x-ray of the complainant shows  intermediary nail in TIBIA and united fracture and complainant was asked to wait for removal of nail on the next date. The complainant was further advised to have tea or water at 6.00 AM and he was further told nothing to eat after that. On the next date, the interlocking nail was removed on 7.7.2014 under Spinal Anaesthesia successfully and post operative treatment of the complainant was  started which was uneventful. On 8.7.2014, again x-ray of the operated part of the complainant was taken which shows healed fracture of TIBIA. The complainant was ultimately, discharged on 9.7.2014 the satisfactory condition as the patient as free of symptoms. At the time of discharge from the hospital, the x-rays and other investigations were handed  over to the complainant as the Opposite Party No.1 does not retain the x-rays and other  investigations of the patient in the hospital as these  are the records of patients and no useful purpose would be served by retaining the same in the hospital. The treatment given is as per the record. The complainant was  discharged with prescribed medicines and was asked to come back to follow up and  further advice after 14 days. It is further stated that the treatment was done as per the prescribed standards form of treatment.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       Opposite Party No.2 appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that the present complaint is legally not maintainable as the complainant has failed to furnish requisite detail particulars and to place on record any cogent and convincing material supported with documentary evidence in order to substantiate the pleas as alleged in the complaint and the present complaint being based on vague, ambiguous allegations merits dismissal on this simply score only. The replying Opposite Party has been unnecessarily impleaded without any cause of action and  even otherwise keeping in view the facts and circumstances of the case and the insurance coverage no liability can be fastened upon the replying Opposite Party and  as such, the present complaint merits dismissal. Without admitting any liability, in this case Opposite Party No.2 has no direct liability towards complainant. Opposite Party No.2 will indemnify insured on their satisfaction of any court award subject to policy terms and conditions and exclusion clauses. On merits, the Opposite Party No.2 has denied all the facts narrated in the complaint.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1  to Ex.C31 .

5.       On the other hand, to rebut the evidence of the complainant, the Opposite Party No.1 tendered into evidence the affidavit of Sh.Dr.Hardas Singh Sandhu Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.Op1/4 and closed the evidence on behalf of the Opposite Party No.2. Similarly, Opposite Party No.2 tendered into evidence the affidavit of Sh.S.S.Gill, Senior Divisional Manager Ex.OP2/1 alongwith documents Ex.Op2/2.  

6.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

7.       The complainant has submitted his affidavit Ex.CW1/A in which he has reiterated the facts as detailed in the complaint and averred that the complainant got fracture in his right leg in an accident about five years back and the complainant contacted the Opposite Party who after seeking the condition of the complainant, conducted the operation of the complainant and inserted rod in his right leg and after conducting the operation of the complainant, the Opposite Party told the complainant that  the operation is successful and incase the complainant will feel any inconvenience, he can remove the said rod after 4-5 years, otherwise there is no need to remove the rod. Opposite Party charged Rs.45,000/- from the complainant towards operation charges, hospital charges, medicine and other connected charges. In the month of February/ March, 2014 the complainant was facing difficulty in walking and was feeling pain on the operated part of his leg and on 6.7.2014, the complainant got checked up his operated part to the Opposite Party who advised the complainant to remove the rod/ nail from his right operated portion and assured the complainant that after removal of rod/ nail, the complainant will be OK and will not feel any inconvenience in walking nor will feel any pain and thus on the advice and assurance of the Opposite Party, the complainant admitted in the Opposite Party hospital on 6.7.2014 and the rod/ nail  was removed  from his right leg on 7.7.2014. Opposite Party charged Rs.25,000/- from the complainant towards operation fee and the complainant also incurred Rs.10,000/- towards medicine. After removal of rod/ nail, x-ray of the operated part of the complainant was got done and after seeing the x-ray, the Opposite Party told the complainant that the operation is successful and advised the complainant that he can got to Sri Ganga Nagar and on the basis of his advice, the complainant moved for Sri Ganga nagar in his conveyance. As the effect of the medicine was reduced, the complainant on the way to Sri Ganga Nagar felt severe pain on his operated part and he took the medicine as prescribed by Opposite Party, but he did not get any relief from the pain on the same day. Even after reaching Sri Ganga Nagar, he took the prescribed medicine, but did not get any relief from the severe pain and finding no other alternative, the complainant contacted Dr.Suresh Goyal Orthopedics Specialist at Sri Nagar on 14.7.2014 and he after seeing the condition of the operated portion of the complainant, got conducted the x-ray of the operated portion of the complainant and on seeing x-ray, it was found that the bone of operated  leg as well as knee of the complainant was broken down during removal of rod/ nail on 7.7.2014 due to medical negligence and carelessness on the part of the Opposite Party. Said Dr.Suresh Goyal laid temporary plaster on the bone of the right leg of the  complainant as permanent plaster could not be effected due to fresh stitches on the operated portion and the complainant was further advised  that the permanent plaster for 35 days would be effected only after  removal of stitches. The complainant on the reference of said Dr.Suresh Goyal contacted Dr.Vijay Ahula of Shree Bala Ji Hospital, Sri Ganga Nagar who also confirmed the breaking down of bone of the complainant during the course of removal of bolt/ nail by Opposite Party. As submitted above, after the operation of the complainant by Opposite Party on 7.7.2014, the x-ray of the operated part of the complainant was got conducted and the Opposite Party was fully aware that the bone of the right leg as well as knee of the complainant stands broken down due to their negligence and carelessness but the Opposite Party intentionally and willfully concealed this fact from the notice of the complainant and only prescribed pain killer medicines to the complainant and band the operated part of the operated portion of the complainant. The wife and son of the complainant contacted the Opposite Party and apprised him the actual and factual position and requested him to give proper treatment to the complainant regarding the broken bone during operation, but the Opposite Party flatly refused to accede to their request and expressed his inability to do anything into the matter.                      

8.       On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the present complaint is gross abuse of process of law as the complainant has not approached with clean hands and various material/ vital facts have been concealed and distorted  version of facts  has been deliberately  put forth before this Forum with an ulterior motive to pressurise and harass replying Opposite Party unnecessarily. There is no evidence forthcoming to show that there is any negligence or deficiency or delay in service at the hands of replying Opposite Party during the course of treatment  of the patient or during relevant times, given by doctor who conducted the procedure upon the complainant at relevant time nor any act of deficiency or negligence or delay or omission or commission was committed by treating doctor. Opposite Party No.1 is senior most doctor of Amritsar  in the field of Orthopaedics and is well qualified  and proper skilled in the arena of medical science. The replying Opposite Party was Orthopaedic at Government Medical College and Guru  Teg Bahadur Hospital and retired from there as such. At the relevant times such as during hospitalisation, Opposite Party No.1 was on standard scientific lines that is  to say adopted proper procedure while conducting  the procedure, which is recognised by medical science, and the patient was discharged from the hospital in satisfactory condition. The complainant i.e. patient was given requisite/ necessary pre, per and postoperative treatment including proper antibiotic cover/ medicines as per his requirement and treatment/ protocols and condition, it is trite to mention over here that no sensible professional would intentionally commit any act or commission which would result in harm or injury to the patient, since the professional reputation of the doctor would be at stake. A single failure may costs him dear in his lapse and if such a practice to involve medical practitioners in false cases of medical negligence continued, it would harm the fate of patients and every medical practitioner would take his patients as his future litigants, thus the present complaint is liable to be dismissed out rightly. Mere oral and bald/ hollow statement of the complainant that there was negligence or deficiency on the part of Opposite Party No.1 during the course of treatment of patient in question will not make Opposite Party No.1 negligent in this regard. It is a settled law as well as requirement of equity that one who alleges must prove. The complainant has not alleged in her complaint that how Opposite Party No.1 was negligent during the course of his treatment  or during relevant times and what the Opposite Party No.1 was supposed to do during the course of treatment. Therefore, complainant being lack of allegations deserves to be dismissed against Opposite Party No.1. Since as per allegations in the complaint, the matter in dispute needs or requires lengthy / voluminous and detailed evidence to prove either way as such the present matter can not be disposed of in summary trial under the Act allegations are of complex and complicated nature. Thus, the matter deserves to be relegated to the competent Civil Court of law for its proper and effective adjudication. Since the complainant has not produced complete treatment records with the complaint, which are lying with him and withheld the same for the best reasons known to him. The complainant has not produced any expert opinion on the record to show that there was negligence  on the part of Opposite Party No.1 who has conducted the procedure so negligently during relevant times or showing that Opposite Party No.1 has deviated from standard form of treatment prescribed for diagnosis of complainant or treatment/ operation was done wrongfully or negligently or wrong treatment was given to the complainant. On merits, it is submitted that five years back, the complainant came to the hospital of Opposite Party No.1 as he had fracture  of both bones of the right leg, which had  not properly united as such in order to unite the same, the operative treatment was essential and interlocking nail and bone grafting  was done at that time. The same was the recommended treatment in such cases. The operation was successful and the complainant was discharged in satisfactory condition. On 6.7.2014, the complainant came to the hospital of Opposite Party No.1 with chief complaint of pain and difficulty in walking for one month. The necessary investigations and x-ray of the right leg of the complainant was done. The x-ray of the complainant shows  intermediary nail in TIBIA and united fracture and complainant was asked to wait for removal of nail on the next date. The complainant was further advised to have tea or water at 6.00 AM and he was further told nothing to eat after that. On the next date, the interlocking nail was removed on 7.7.2014 under Spinal Anaesthesia successfully and past operative treatment of the complainant was  started which was uneventful. On 8.7.2014, again x-ray of the operated part of the complainant was taken which shows healed fracture of TIBIA. The complainant was ultimately, discharged on 9.7.2014 in the satisfactory condition as the patient was free of symptoms. At the time of discharge from the hospital, the x-rays and other investigations were handed  over to the complainant as the Opposite Party No.1 does not retain the x-rays and other  investigations of the patient in the hospital as these  are the records of patients and no useful purpose would be served by retaining the same in the hospital. The treatment given is as per the record. The complainant was  discharged with prescribed medicines and was asked to come back to follow up and  further advice after 14 days. It is further stated that the treatment was done as per the prescribed standards form of treatment.

9.       It is not disputed that the five years back, the complainant came to the hospital of Opposite Party No.1 as he had fracture  of both bones of the right leg, which had  not properly united as such in order to unite the same, the operative treatment was essential and interlocking nail and bone grafting  was done at that time. The same was the recommended treatment in such cases. The operation was successful and the complainant was discharged in satisfactory condition. On 6.7.2014, the complainant came to the hospital of Opposite Party No.1 with chief complaint of pain and difficulty in walking for one month. The necessary investigations and x-ray of the right leg of the complainant was done. The x-ray of the complainant shows  intermediary nail in TIBIA and united fracture and complainant was asked to wait for removal of nail on the next date. The complainant was further advised to have tea or water at 6.00 AM and he was further told nothing to eat after that. On the next date, the interlocking nail was removed on 7.7.2014 under Spinal Anaesthesia successfully and past operative treatment of the complainant was  started which was uneventful. On 8.7.2014, again x-ray of the operated part of the complainant was taken which shows healed fracture of TIBIA. The complainant was ultimately, discharged on 9.7.2014 the satisfactory condition as the patient as free of symptoms. On the other hand, no expert report or any doctor has been examined by the complainant to prove that the operation conducted by Opposite Party No.1 was not successful.  The onus to prove that there is negligence on the part of the Opposite Parties No.1 and 2 is basically upon the complainant, but the complainant has not been able to prove this fact. On this point, we are supported from the judgement 2015(2) CLT 310 (NC) titled as Ram Gopal yadav Vs. Pushkar Anand (Dr) and others. In that case, it was held that initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are not evidence. Just a bald statement can not be accepted. Further a reference has been taken from 2009(4) CLT (SC) titled as C.P.Sreekumar (Dr.MS (Orth) Vs. S.Ramunjam and 2009(30 CLT 430 (SC) titled as Nizam Institute of Medical Science Vs. Prasanth S.Dhanaka & Ors and 200593) CLT 358 (SC) titled as Jacob Mathew Vs. State of Punjab & Anr. The view held in the above referred judgements has not been  rebutted by the counsel for the complainant by citing any contrary judgement.

10.     The main question involved in this complaint is whether the complainant discharged burden of proof to establish that the Opposite Parties No.1 and 2 – Dr. committed breach of the professional duties and failed to foresee the adverse effect of the operation.  The legal position in the context of the medical negligence is duly set at rest in view of the “Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre & Others” [(2010) 3 SCC 480].  The Supreme Court held that the medical practitioner would be liable only where his conduct falls below that of a reasonably competent doctor.  It is observed that diversion of opinion with other Doctors, could not itself be sufficient to infer negligence.  The relevant observations may be reproduced as below:-

“On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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 his conduct fell below that of the standards      of   a    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 available, 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 unnecessary 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. Such 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 professionals.”

11.     We shall now examine the material on record in the light of afore stated principles.  On behalf of Opposite Party No.1, affidavit of Opposite Party No.1 was placed before this Forum.    He gave detailed account of the treatment given to the complainant.  

 12.    There is no dispute about the fact that the Opposite Party No.1 – Dr. is an experienced orthopaedic surgeon.  There is no substantial reason to dislodge his version regarding the medical care taken by him while conducting the operations and giving of the treatment to the complainant.    The Supreme Court gave certain directions in order to provide umbrella of protection to the medical practitioners against ill-motivated complaints. He also referred to “Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors.”[(2009) 9 SCC 221] in which case the medical practitioner not only failed to carry out correct diagnosis of the disease at initial stage but also prescribed high doses of long acting steroids.  The excessive dose of steroids was the cause of immunosuppression and sepsis.  The fact situation in the present case is on different footings.  Learned counsel for the appellant also relied upon “Nizam’s Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. [(2009) 6 SCC 1]”.  The negligence was fully established in the given case.  In the case in hand, we are of the view that professional negligence is not established against the Opposite Party No.1.  Taking over-all view of the matter, the complaint is  without merits and hence is dismissed.   Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 01.03.2017.