Punjab

Sangrur

CC/235/2014

KRISHAN KUMAR - Complainant(s)

Versus

DR. JUGAL KISHORE - Opp.Party(s)

RAJINDER GOYAL

05 Feb 2015

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

               

 

                                                Complaint No.    235

                                                Instituted on:      22.04.2014

                                                Decided on:       05.02.2015

 

Krishan Kumar Bansal son of Shri Seeta Ram R/o Ward No.1, Shiv Colony, Cheema Mandi, Tehsil Sunam, Distt. Sangrur.

                                                                …Complainant.

                                Versus

1.             Dr.Jugal Kishore Goyal C/o Goyal Bones and Joint Hospital, Jakhal Road, Sunam, District Sangrur.

2.             United India Insurance Company Limited, Dhuri Road, Sangrur through its Divisional Manager.

                                                                …Opposite parties

 

For the complainant    :       Shri Rajinder Goyal, Advocate.

For OP No.1              :       Shri Yogesh Gupta.

For OP No. 2             :       Shri L.K.Singla, Advocate.

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Krishan Kumar Bansal, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant suffered a fracture of left humerus (surgical neck) due to injury sustained by him in a road side accident on 13.5.2013 and as such his relatives brought him in the clinic of OP on the same day and the Op got performed x-ray of the arm/shoulder of the complainant and told that there is a fracture of neck of left humerus and same needs to be operated soon.  As such, the complainant was operated on 14.5.2013 for the same, for which the Op got deposited an amount of Rs.35,000/- as advance from the complainant on account of operation charges, AC room, medicines etc. and was discharged on 18.5.2013. It is further stated that OP also charged Rs.10,000/- from the complainant as the balance amount, as such the complainant is said to be a consumer of the OP number 1.

 

2.             It is further averred that at the time of discharge, the OP advised the complainant to visit regularly in his clinic for post operative care and for assessment of the progress in the fractured bone. But, the Op did not provide the treatment record such as, x-ray, laboratory test reports and bills of medicines despite his requests to the OP.  Thereafter the complainant visited the clinic of OP about 18-20 times and the OP charged Rs.850/- every time on 7-8 visits and Rs.650/- for the remaining visits.    It is further averred that on 7.8.2013, the complainant visited the clinic of OP and told that there is no progress in his arm and he is facing acute pain and is unable to lift his arm even after three months of the operation, but the OP number 1 told that the fractured bone is healing well and is showing enough calcification. Since the condition of the complainant was not improving at all and was facing acute pain, so he consulted Dr. Vikram Jindal (MS Ortho) of Basant Hospital, Sunam and showed him the above said x-ray, who on examining the x-ray told that during the operation there is non union of the bone. It was further told by him that the alignment of the fractured bone has to be done properly. He further advised the complainant to consult Dr. Anil Mittal of Ludhiana for the same.  It is further averred that on 23.8.2013, the complainant consulted Dr. Anil Mittal, who after looking upon the x-ray told the complainant that operation of his left upper humerus was not done properly and the same needs to be operated upon again.

 

3.             It is further averred that thereafter the complainant visited GMCH, 32 Sector, Chandigarh for consultation, where the doctors also advised him for re operation of his left humerus as the alignment of the bone is not proper and there is non union.  After that the complainant underwent all the necessary lab tests as advised by the doctors and again visited GMCH on 29.8.2013 for remaining tests.  It is further stated that after that complainant was told by the doctors to get admitted for re- operation and complainant was admitted there in the hospital on 3.9.2013, where the doctors performed operation of his left humerus and removed the plate affixed by the OP number 1 and done replating along with bone grafting and ultimately the complainant was discharged on 10.9.2013.  Thereafter the complainant visited GMCH Chandigarh a number of times and now the movement of his arm is perfectly fine.  Thereafter the complainant requested Op number 1 a number of times to provide the complete record, x-rays etc., but nothing was supplied despite seeking the information under the Right to Information Act.  It is further averred that the complainant had suffered a huge trauma and loss of his health due to the negligence of the OP number 1 and further incurred an expenditure of Rs.1,50,000/- on his treatment, besides the complainant has also incurred expenditure on hiring taxi for visiting Chandigarh and Ludhiana for his treatment.  The complainant requested the Op to compensate him for the expenditure incurred by him and for the loss of health and pain suffered by the complainant, but the OP number 1 flatly refused to listen his request, despite serving of legal notice dated 7.4.2014. Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to supply the medical treatment pertaining to him including bill of plate, lab reports, x-rays, medicine bills, bill of hospitalization and operation, discharge card and indoor file etc. and  further  to pay him a compensation of Rs.5,00,000/- on account of expenses incurred by the complainant on his treatment at Sunam, Ludhiana and Chandigarh and further to pay Rs.22,000/- on account of litigation expenses.

 

4.             In reply filed by OP number 1, it is stated that the complainant was brought to the hospital of OP number 1 on 14.5.2013 and he had already done x-rays with him. The fracture of the complainant was fully reduced and the alignment was properly attained and was fixed with a low profile proximal humerus plate on 14.5.2013. X-rays were handed over to the complainant after discharge.  It is stated that the OP charged Rs.13,600/- from the complainant and was discharged on 18.5.2013 in a satisfactory condition. It is denied that the OP charged an amount of Rs.35,000/- and Rs.10,000/- for post operative treatment.  It is stated that the complainant had not come for post operative care.  On 7.8.2014, he came to the clinic of OP with complaint of pain and swelling over left shoulder and after examining the patient, x-ray was advised and after examining the x-ray, it was found that fracture got displaced and advised the patient repeat surgery, but thereafter the complainant did not turn up. It is denied that the complainant charged Rs.850/- or Rs.650/- per visit of the complainant.  It is denied that there is any negligence in the treatment of the OP.  It is also denied that Dr. Vikram Jindal or Dr. Anil Mittal stated that there is negligence on the part of the OP.  It is further stated that performing of second operation did not amount to negligence on the part of the OP. Any deficiency in service on the part of the Op number 1 has been denied.

 

5.             In reply filed by Op number 2, the allegations of the complainant have been denied and it is further averred that the complainant has not given any insurance particulars, therefore, OP number 2 is unable to ascertain the fact.  However, any deficiency in service on the part of Op number 2 has been denied.

 

6.             The learned counsel for the complainant has produced Ex.C-1 copy of FIR, Ex.C-2 original x-ray, Ex.C-3 application under RTI Act, Ex.C-4 copy of postal receipt, Ex.C-5 copy of legal notice, Ex.C-6 postal receipt, Ex.C-7 and Ex.C-8 prescription slips, Ex.C-9 discharge card, Ex.C-10 treatment record of GMCH Chandigarh, Ex.C-11 to Ex.C-14 affidavits, Ex.C-15 original x-ray films and closed evidence. On the other hand, the learned counsel for the OP number 1 has produced Ex.OP1/1 affidavit, Ex.OP1/2 copy of case summary, Ex.OP1/3 to Ex.OP1/4 copies of medical reports, Ex.OP1/5 to Ex.OP1/7 copies of register, Ex.OP1/8 copy of policy and Ex.Op1/9 affidavit and closed evidence.  The learned counsel for OP number 2 has produced Ex.Op2/1 affidavit and closed evidence.

 

7.             We have carefully perused the complaint, evidence of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

8.             After hearing the arguments of the learned counsel for the parties and on going through the documents produced on record, we find that the complainant had met with an accident on 13.5.2013 and he was operated upon in the clinic of OP number 1 on 14.5.2013 and after operation he was discharged on 18.5.2013 with the advice of regular visit the clinic for post operative care and assessment of progress i.e. union and calcification of the fractured bone after operation.

 

9.             As per the version of the complainant, the main controversy arose after the operation when there was no progress and the fracture arm after operation had acute pain and the complainant could not even lift his arm after three months of the operation.  The complainant visited the clinic of OP number 1, but as the pain did not subsidise, so the advice of the doctors of GMCH, Sector 32, Chandigarh was taken as the alignment of the bone was not proper, so the complainant got admitted in  GMCH, Sector 32, Chandigarh on 3.9.2013 for reoperation and the doctors removed the plate affixed by OP number 1 and after grafting the bone, the complainant was discharged on 10.09.2013 and after that the broken arm had the proper movements. OP number 1 had not performed the surgery of the complainant properly and the complainant had to undergo another operation in GMCH, Sector 32, Chandigarh for proper treatment and as such, OP number 1 is deficient in service.

 

10.            On the other hand, in the reply, OP number 1 has admitted that the complainant was admitted on 14.5.2013 and was operated upon properly and on 16.5.2013 x-ray was done.  The detail of the treatment was mentioned in the treatment file of the complainant. OP number 1 had charged only Rs.13,600/- from the complainant and not Rs.45,000/- i.e. Rs.35000/- plus Rs.10,000/-  as alleged by the complainant. OP number 1 has denied having kept the treatment record of the complainant and on the repeat x-ray, the complainant was advised repeat surgery.  Further OP number 1 has submitted that “delayed union or non union of fracture or complication of the post operative cannot be equated with negligence.”

 

11.            OP number 2 in its reply has denied the allegations of the complainant for want of knowledge.

 

12.            The learned counsel for the complainant has vehemently argued that OP number 1 has not taken any reasonable care and caution and has left a huge gap between the bones and as a result of which, the complainant had to suffer and had to re operate the arm for proper fixation as there was constant pain in the arm and the arm was not functional properly. The learned counsel for the complainant has further argued that inspite of repeated requests and serving of legal notice and further sought relevant record through Right to Information Act, OP number 1 had not handed over the treatment file and other relevant documents to the complainant, as such, OP number 1 is negligent on account of professional misconduct as well.  The X-ray got done on 7.8.2013, which is Ex.C-2 on record speaks itself and shows that OP number 1 has not operated arm of the complainant with due care and caution and had left gap between the bones, which resulted the reoperation of the complainant in GMCH, Sector 32, Chandigarh and the doctors had to insert a big plate and further had to do bone grafting to set the arm in the right condition.

 

13.            The learned counsel for OP number 1 has contended that dis-location of the fracture may be due to number of other reasons and it cannot be said that OP number 1 had not taken due care and caution at the time of operation on 14.5.2013.  Besides other documents, OP number 1 had summoned Dr. Vikram Jindal of Basant Hospital, Sunam, who had admitted that the complainant had visited his clinic with x-ray and other record and displacement of the bone as of this nature can be because of fall after surgery, aggressive movement or non advice movements.  But, during the cross examination by the learned counsel for the complainant, Dr. Vikram Jindal had admitted that he had told the complainant that as per appearance from xray, it appears that it is the case of non union and further said ‘non union as well as displacement of the fracture, non union actually means the failure of bone to unite after minimum six months”.  During further cross examination, the doctor has also admitted that on seeing the x-ray i.e. Ex.C-2, there is no sign of loosening up of screws.

 

14.            So, when the screws were tight and there was no loosening of the screws, version of OP number 1 that the plate may have been displaced due to fall as the complainant was alcoholic is not tenable.

 

15.            OP number 1 also summoned Dr.Anil Mittal, MS Ortho, who has admitted that the complainant visited his clinic on 23.8.2013 as he had non union left surgical neck, humerus and was advised operation.  Dr. Anil Mittal has also stated that causes of non union can be multiple such as diabetes, age, compound fracture, committed fracture, cigarette smoking, alcoholism, improper fracture fixation, when there is mobility at fracture site and non union is known complication of any fracture inspite of good fixation.  In the cross examination by the learned counsel for the complainant, Dr. Anil Mittal admitted having given the opinion for reoperation after looking into the condition in this x-ray, the doctor had also admitted that from the x-ray Ex.C-2, it can be inferred that screws had not backed out from its  position.  In the cross examination Dr. Anil Mittal has stated that “it is correct that alignment of fracture is not proper as is evident from Ex.C-2.  The gap at the fracture site is visible because of displacement”.  The doctor has further submitted that we maintain the record of the patient and we hand over the discharge card to the patient on demand by the patient, the x-rays can be given to the patient after taking proper receipt.

 

16.            But, in the present case, neither OP number 1 has placed on record the full treatment documents of the complainant nor the OP number 1 has submitted any acknowledgement from the complainant in support of his version that x-ray and other record was handed over to the complainant. So, in the absence of such acknowledgement, we failed to concur that the version of OP number 1 and agree with the expert evidence of Dr. Anil Mittal and Dr. Vikram Jindal that if the patient would not have gone for second surgery, his fracture will remain non union and  patient would have suffered temporary disability till the second operation.

 

17.            Now, the question arises whether the complainant had to undergo with second operation due to the negligence of the complainant or if non union of the bone is a known complication of any fracture inspite of good fixation by OP number 1.  OP number 2 has filed the affidavit of its Divisional Manager, Ex.OP2/1 and has submitted that OP number 2 is not in a position to admit or deny the facts of the complaint.

 

18.            In support of his version,  OP number 1 has cited the judgment of Hon’ble National Commission New Delhi delivered in First Appeal No.21 of 2007 from the order dated 11.12.2006, complaint number 46 of 2000 of Hon’ble State Commission, Bihar, which was decided on 24.08.2012 in Leela Devi vs. Shatrughan Rau (Dr.) and another by the Hon’ble Justice Ashok Bhan, but in that case “post surgery, the appellant was advised to take some precautions, failing which non union can occur. It is apparent that the appellant did not follow the medical advice”.  In the present case, there is no such evidence which suggests that the complainant did not follow the medical advice and in the cross examination Dr. Anil Mittal summoned as a witness by OP number 1 has stated that “it is correct that alignment fracture is not proper as is evident from Ex.C-2. The gap at the fracture site is visible because of displacement. Op number 1 has also cited some other judgments, but in the present case, as Op number 1 had summoned two witnesses of the doctors and on the basis of their submissions, the medical negligence is apparent.

 

19.            The learned counsel for the complainant has cited judgment of Hon’ble Supreme Court of India decided on 14.5.2009 in Civil Appeal no.4119 of 1999 in Nizam’s Institute of Medical Sciences vs. Prasanth S. Dhananaka and others, in which the Hon’ble Apex court of India has held that ‘once the initial burden has been discharged by the complainant, by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts to the hospital or attending doctors. It is for the hospital to satisfy the court that there was no lack of care or diligence.  Further the Hon’ble National Commission in First Appeal No.19 of 2009, decided on 24.4.2014 in Dr. Baidyanath Chakraborty and others versus Chandi Bhattacharjee and others, in which the Hon’ble National Commission has held “The Law of negligence applies to doctors, as it applies to other professionals like lawyers, architects, etc. as they are required to perform the task assigned to them with the requisite skill and expertise possessed by them for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution.”  

 

20.            In present case, whatever documents have been placed on record, on the basis of the same, the facts speaks for themselves as the complainant was complaining about the severe pain in the arm after the operation by OP number 1 and the witnesses summoned by OP number 1 of two doctors have further made the version of the complainant clear and keeping in view of the facts mentioned above, we find that Op number 1 is negligent in performing the operation of the complainant and as such is deficient in service.  So, accordingly, we allow the complaint and direct the OP number 1 to refund to the complainant an amount of Rs.13,600/- along with interest @ 9% per annum from the date of complaint i.e. 22.04.2014 till realisation and we further direct the Ops to pay to the complainant an amount of Rs.1,00,000/- as compensation for mental tension and Rs.11,000/- on account of litigation expenses.

 

21.            This order of ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of charge. File be consigned to records.

                Pronounced.

                February 5, 2015.

                                                    (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                    Member