Haryana

Yamunanagar

CC/335/2013

Rajesh Kumar s/o Sh.Ranjit Singh - Complainant(s)

Versus

Dr. Mahavir Goel - Opp.Party(s)

Amit Saini

02 Aug 2017

ORDER

  BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                               Complaint No. 335 of  2013.

                                                               Date of institution: 07.05.2013/

                                                                                              03.05.2013.

                                                               Date of decision: 02.08.2017.

 

 Rajesh Kumar son of Sh. Ranjit Singh resident of village Damoli, Distt. Yamuna Nagar.                                                                                                                                                                                                                                                                       

                                                                                                               …Complainant.

                                Versus

1. Dr. Mahavir Goel, Goel Hospital, Orthopedic Surgical Centre, Sawanpuri, Yamuna Nagar Road, Jagadhri, Distt. Yamuna Nagar.
2. United India Insurance Company Ltd. 54, Jan Path Connaught Palace, New Delhi through its Manager.

 

              …. Respondents.

                 

BEFORE    SH. DHARAMPAL, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER.          

 

Present:       Sh. Amit Saini, Advocate, counsel for complainant.   

                    Sh. S.C. Jindal, Advocate, counsel for OP No. 1.

                    Sh. Parmod Gupta, Advocate, counsel for OP No. 2.

 

ORDER

 

1.                Complainant Rajesh Kumar has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date. 

2.                Brief facts of the complaint, as alleged by the complainant, are that the complainant met with an accident and had suffered injuries and fractures of his right leg and the complainant was admitted in the hospital of the OP No. 1 on 21-12-2012 and was got discharged on 31-12-2012. The right leg of the complainant was got operated by the OP No. 1and an iron plate planted/installed in the right leg of the complainant and charged Rs. 23,500/- from the complainant for diagnosis and treatment. It is further submitted that after the discharge from the hospital of the opposite party, the complainant, as advised by the OP No. 1and medication as advised by the OP visited the hospital of the opposite party as advised by him but the complainant has suffered continuous pain in his leg which was conveyed to the OP No. 1from time to time but the OP No. 1has assured that it is the effect of operation and it will be all right after some days but the pain in the leg of the complainant persists and the opposite party has not listened to the request of the complainant and finding no other alternate and to take the second opinion regarding the injury, the complainant visited Govt. Medical College, Hospital Chandigarh on 25-01-2013. The doctor after opening the dressing and found the wound was infected with bone and plate expanded and further advised that the complainant requires plastic surgery for cover and referred the complainant to PGI, Chandigarh and on 28-01-2013, the complainant went to PGI as per the advise of doctor of Govt. Medical College Hospital Chandigarh. There the doctor of PGI has found a wound of 15 CM X 5 CM on the front of the right leg and at that time, the wound was appeared infected and purulent discharge. The complainant was then referred for plastic surgery and thereafter, the complainant was operated upon of his right leg and thus due to the sole negligence of the OP No. 1, the complainant has become disabled. Thereafter, the complainant along with his relatives visited to the OP No. 1 and narrated about his negligence, upon which he assured the complainant to pay appropriate compensation to the complainant but in spite of repeated request he has not paid even a single penny to the complainant and on the other hand threatened the complainant with dire consequences. As such, he prayed that OP No. 1 may kindly be directed to pay a sum of Rs. 5,00,000/- as compensation on account of amount spent on operation, medicines, special dies and pains, sufferings and cost of legal proceedings to the complainant.

 3.               Upon notice, OPs appeared and filed theirseparate written statements vide which OP No. 1 has taken some preliminary objections such as complaint is not maintainable, complainant has concealed and suppressed the material and relevant facts of this case.It is further submitted that the OP No. 1 is a reputed qualified doctor (Orthopedic Surgeon) having qualification MBBS, M.S. (Orthopaedic Surgery), duly registered/licensed with state Branch of Medical council of India. It is further submitted that the patient Sh. Rajesh Kumar son of Sh. Ranjit was first time brought to the respondent on dated 21-12-2012 at 8.30 PM in emergency in his hospital, named Goel Hospital, which having all necessary infrastructure, instrumentation and man power, necessary to dealt with almost all kinds of orthopaedic diseases. He told the respondent doctor that he had sustained injuries in a road side accident. The OP doctor had informed the police on 22-12-2012 by sending a ruqa. He was x-rayed and routine blood investigation was done and was diagnosed as a case of compound comminuted fracture both bones right leg with compound fracture of medical malleolus right ankle. It means in simple language that the bone was broken in multiple pieces and there was wound over the fracture site on ankle. As per blood report, his HB was 8gms only and so the patient was advised to arrange 4 units of blood. He was specifically told that the fractures were complicated one and the chances of non-union and infection are there and he was advised operation. All pros and cons along with possible alternatives line of treatments of prognosis were discussed/explained to the complainant and his attendant Sh. Ajay Kumar. It is further submitted that a well informed written consent was got signed from the patient and his attendant Ajay Kumar. As per requirement, the patient was transfused 2 units of blood before surgery on 22-12-2012 and 2 units of blood were kept ready for transfusion after surgery. It is further submitted that the patient had no post operative complications and was discharged on 31-12-2012 to be followed later on as OPD patient. Since the fractures were complicated one and the patient was anemic (Low HB) as such, the patient was specifically told that there were chances of infection and non union and patient may need another surgery later on. This fact has been clearly mentioned in the discharge slip which was handed over to the patient (Annexure C2). It was also declared by the complainant in writing and signed by him that “he was fully satisfied with the service provided at hospital as the treatment was carried out satisfactorily”. Discharge summary was also handed over to the complainant with the direction to bring the patient after five days. Thereafter, the patient was brought to the OP on 05-01-2013, 12-01-2013, during these visits patient was thoroughly examined and check x-rays were done which showed that the bones were in proper alignment. At the time of discharge and thereafter on his 2 visits, patient was prescribed higher antibiotic to avoid infection.After 12-01-2013, the patient was not brought to the OP doctor. It is emphatically denied that any doctor to whom the complainant visited had found that wrong operation has been done by the OP and that there is great negligence in doing the operation.It is further submitted that the complainant has not submitted any documentary evidence in this regard and in support of allegations made in paragraph under reply. It is further submitted the OP doctor has treated the complainant as per prescribed norms and with due diligence, which would expected from other prudent doctor in the same circumstances. Lastly, prayed for dismissal of complaint.

                   OP No. 2 has also taken some preliminary objections such as complaint is not maintainable, court has no jurisdiction to hear the present caseand complainant has concealed and suppressed the material and relevant facts of this case. He further submitted that the submissions made by the OP No. 1 in his reply, be read as such in his reply.  

4.                To prove his case, counsel for the complainant tendered into evidence the complainant’s affidavit as Annexure CW/A and documents such as photocopy of Out Patient Card, photocopy of discharge card as Annexure C2, photocopy of Bill as Annexure C-3, photocopy of OPD card dated 12-01-A2013 as Annexure C-4, photocopy of medicines bill as Annexure C-5 to Annexure C-19, Photocopy of Blood bank receipt as Annexure C-20 to Annexure C-23, photocopy of Out Patient Card dated 29-01-2013 of PGI Chandigarh, photocopy of Out Patient Card of Govt. Medical College and Hospital Chandigarh as Annexure C-25, Photocopy of OPD card of Kohli Hospital dated 26-01-2013 as Annexure C-26 and photocopy of payment receipt of Narwal Viklang Kendra as Annexure C-27 and closed his evidence.

5.                On the other hand, counsel for the OP No. 1 tendered into evidence affidavit of Sh. Dr. Mahavir Goelas Annexure RXand documents such as photocopy of policy issued byUnited India Insurance Company Limited as Annexure R-1 and photocopy of Bed Head Ticket of Goel Hospital as Annexure R-3  and closed the evidence on behalf of OP No. 1. Counsel for the OP No. 2 tendered into evidence affidavit of Sh. Ajay Sareen Assistant Manager, United India Insurance Company as Annexure RW1/A and documents such as policy issued by United India Insurance Company Limited as Annexure R-1 and Terms and conditions of the policy as Annexure R-2and closed the evidence on behalf of OP No. 2.

6.                We have heard learned counsel for the parties and have also perused the record available on the file.

7.                Admittedly, the complainant-Rajesh Kumarhad suffered multiple fractures on his right leg in a road accident and he was admitted in the hospital of the OP No. 1 on 21-12-2012 and the right leg of the complainant was got operated by the OP No. 1 and an iron plate was planted/installed in the right leg of the complainant and was discharged on 31-12-2012.

8.                Counsel for the complainant has argued that complainant suffered injuries and fractures of his right leg in a road accident. On which the complainant was admitted in the hospital of the OP No. 1 and the right leg of the complainant was got operated by the OP and an iron plate planted/installed in the right leg of the complainant. It is further argued that the complainant had visited the hospital of the opposite party as advised by OP doctor but the complainant has suffered continuous pain in his leg which was conveyed to the OP doctor from time to time but the OP has assured that it is the effect of operation and it will be all right after some days. Due to the unbearable pain, the complainant for taking the second opinion regarding the injury visited Govt. Medical College, Hospital Chandigarh on 25-01-2013. The doctor after opening the dressing and found that wound was infected with bone and plate expanded and further advised that the complainant requires plastic surgery for cover. Accordingly the complainant went to PGI as per the advise of doctor of Govt. Medical College Hospital Chandigarh and doctor of PGI has found a wound of 15 CM X 5 CM on the front of the right leg and at that time, the wound was appeared infected and purulent discharge. Thereafter, the complainant was operated upon of his right leg and thus due to the sole negligence of the OP doctor, the complainant has become disabled.

9.                Counsel for the OP No.1 has argued that the patient Sh. Rajesh Kumar son of Sh. Ranjit was first time brought to the OP No. 1 on dated 21-12-2012 in emergency in his hospital with the history of injuries in a road side accident. He was x-rayed and routine blood investigation was done and was diagnosed and found bone was broken in multiple pieces and there was wound over the fracture site on ankle. As per blood report, his HB was 8 gms only and so the patient was advised to arrange 4 units of blood. He was specifically told that the fractures were complicated one and the chances of non-union and infection are there and he was advised operation. All pros and cons along with possible alternatives line of treatments of prognosis were discussed/explained to the complainant and his attendant Sh. Ajay Kumar. It is further argued that the patient had no post operative complications and  the patient was specifically told that there are chances of infection and non union and patient may need another surgery later on  and the said fact has been clearly mentioned in the discharge slip.

10.              During the pendency of the present complaint, on 06.05.2015 an application for directions to the CMO, MLG, Hospital, Yamuna Nagar to get the complainant Medico legally examined by appointing board of doctors to ascertain the negligence of Dr. Mahavir Goel, Goel Hospital, Jagadhri moved on behalf of the complainant and the same was allowed. Accordingly, this Forum ordered to the Civil Surgeon, Yamuna Nagar  to render expert report opinion in the present case. On which Inquiry Report has been submitted by Dr. Sunil Kumar, SMO, Civil Hospital, Yamuna Nagar. The expert report was received as per zimni order dated28-09-2015 which is reproduced as under:-

“After going through available records and statements of patient and treating orthopedics doctor and fresh X-ray, is of the opinion-,.”

• Patient was diagnosed as a case of left side communuted TIBIA-FIBULA fracture (multiple fragments of bone) with open grade one malleolus fracture of same side.
• Open reduction and internal fixation was done. (Planting and K-wiring)
• Post operative stitch line infection is known complication of such type of fracture.
• Prognosis was already explained which is documented in Indoor file.

 

The board is of the opinion that there is no negligence on the part of treating doctor.

11.              The Medical Board of the Civil Hospital, Yamuna Nagar recorded a categorical report negativing any negligence in the course of the treatment. Our attention has not been invited during the course of the hearing to any fact or circumstance which may persuade us to flaw the report of the Medical Board.

12.              Keeping in view of the above, we are of the opinion that, the OP No.1has given the treatment to the complainant to the best of his knowledge and ability. When a patient visits a doctor for treatment of any disease, then it is the prerogative of the doctor itself to choose the best treatment for his patient. The patient cannot force his own view/opinion about the medical treatment upon the doctor. Our view in the context is well substantiated with the judgment passed by the Hon’ble Apex Court in Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & other 2010 (2) CLT 282 wherein the Hon’ble Apex Court held as under:-

“1.    Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution-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.

2.       An error of judgment is not necessarily negligence.

3.       To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.”

Similarly the Hon’ble National Commission in case of Manteswar vs. Dr.Sumit Banerjee & anr. and Megha Eye Centre 2016(3) Law Herald (SC) 2296 held as under;-

“No cure is not a negligence- The doctor should not be punished for, if anything goes wrong- It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish-Things have gone wrong and, therefore, somebody must be found to answer for it- A professional deserves total protection.”

13.              Keeping into consideration the facts and circumstances of the case, no deficiency or negligence on the part of the OPs can be attributed which may warrant any penal action against the OPs. The complaint as such is dismissed with no order as to costs. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced in open court. 02.08.2017

 

                                                                   ( DHARAMPAL)

                                                                    PRESIDENT

                                                                    D.C.D.R.F.YAMUNA NAGAR

                                                                    AT JAGADHRI

 

     (VEENA RANI SHEOKAND)               (S.C.SHARMA)

      MEMBER                                                MEMBER

 

Note: Each and every page of this order has been duly signed by me.

 

           (DHARAMPAL)

                                                                       PRESIDENT

                                                                 DCDRF, YAMUNANAGAR