STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Bihar Patna
Appeal No. 392 of 2011
Umakant Singh, Son of Late Hari Singh, Resident of Village- Badaua, PS- Fatehpur, District- Gaya
.... Appellant
Versus
Doctor Navneet Nishchal, Orthopedic, Joint Bone Specialist, Near Maa Dudhaharni Temple, A.N. Road, Gaya, PS- Kotwali, District- Gaya
.... Respondents
Counsel for the appellant: Adv. Suresh Mishra
Counsel for the respondent: Adv. Satendra Kumar Dubey
Before:
Hon’ble Mr. Justice Sanjay Kumar, President
Mr. Ram Prawesh Das, Member
Order
Date-27.04.2023
Per: Hon’ble Mr. Justice Sanjay Kumar, President
The present appeal has been preferred for setting aside the order dated 26.04.2010 passed by the District Consumer Disputes Redressal Forum, Gaya in Complaint Case no. 55 of 2007 whereby and whereunder the District Consumer Forum dismissed the Complaint case.
Briefly stated the facts of the case is that son of complainant Narayan Sharma aged about 8 years suffered injuries on 10.03.2007 resulting in fracture of the wrist of left hand and immediately thereafter complainant along with his brother brought the child at the clinic of Opposite party for his treatment and Opposite party examined the patient and also got X-ray done and thereafter applied plaster of paris on the fractured part and asked to come after three days for review check up, however patient did not come.
On 21.03.2007 the boy felt severe pain in his left hand and approached opposite party where upon the opposite party on 22.03.2007 removed the plaster and at the time of removal of plaster some foul smell came from the affected hand. Complainant made a request to discharge his son so that he could be treated at Patna but the opposite party refused to discharge him and further demanded Rs. 20,000/- for better treatment, upon which complainant paid Rs. 15,000/-.
On 29.04.2007 opposite party without taking consent of the complainant amputated two fingers of the boy and thereafter on 30.04.2007 complainant and his brother requested opposite party to discharge the boy so that he could be treated at Patna but opposite party abused and assaulted and manhandled him and also snatched the medical prescription and demanded Rs. 5,000/- which was paid to opposite party.
Complainant thereafter took his son to Patna for better treatment and admitted him in popular Nursing Home of Dr. John Mukopadhyay who operated the left arm of the boy on 12.05.2007 and thereafter the left lower elbow of the boy was amputated and as such he became permanently disabled.
Complainant filed a consumer complaint case for grant of compensation due to Medical negligence and deficiency in service by the opposite party and claimed compensation of Rs. 6,16,000/- along with interest giving rise to CC no. 55 of 2007.
Notices were issued to the opposite party and he appeared and filed his written statement denying the allegation of any medical negligence or deficiency in service. It was further stated in the written statement that complainant brought his son at the clinic for treatment of his son who had suffered injuries on his left wrist and left elbow joint on 10.03.2007 and immediately X-ray was done of the elbow and wrist and he applied plaster of paris on the affected part of the left hand and advised complainant to come after 3 days.
Opposite party has further stated that he applied plaster of paris because in such type of fracture injury it is not advisable to use tight cast and he called complainant to come with his son after 3 days but the complainant came with his son on 21.03.2007 and by that time due to swelling of the left hand the plaster of paris had become stiff. He had to remove the plaster of paris.
It is further submitted that complainant brought the boy on 22.03.2007 and antibiotic medicine were prescribed. Thereafter, he visited the clinic on 27.03.2007 when certain medicines were prescribed and thereafter complainant never visited the clinic.
Opposite party has denied to have amputated the thumb and little finger of the boy on 29.04.2007. Boy was under his treatment from 10.03.2007 to 27.03.2007 and complainant did not follow the instructions and directions of the opposite party during post operative period and as such due to negligent act of the complainant further complication had developed.
The District Consumer Forum on the basis of evidences and materials available on record held that the injured boy (son of complainant) aged about 8 years suffered fractured injuries in his left wrist and left elbow on 10.03.2007 and at about 2:00 PM on the same day he was brought to the clinic of opposite party who after getting the X-ray done applied plaster of paris over the affected part and it appears that injured boy was again treated on 21.03.2007 on which date plaster of paris was removed and opposite party advised certain antibiotic medicines and thereafter the injured boy was treated on 22.03.2007 and 27.03.2007 and on said date also certain medicines were prescribed. It is also an admitted fact that the injured boy was subsequently admitted in Popular Nursing Home in Patna on 11.05.2007 where his left hand below elbow was amputated resulting in his permanent disablement.
The District Consumer Forum has disbelieved the case of complainant that his injured son was an indoor patient rather it was found that on 10.03.2007 plaster of paris was applied over the affected part and he was advised to come after 3 days for checkup but he did not come after 3 days and came on 21.03.2007 after the injured boy complained pain and plaster of paris was removed and some antibiotic medicines were prescribed and thereafter he visited the opposite party for check up on 22.03.2007 and 27.03.2007 when certain medicines were prescribed.
The District Consumer Forum has also disbelieved the case of complainant that the injured boy was operated on 29.04.2007 where his thumb and little finger was amputated and he was discharged from his nursing home on 30.04.2007. However, the District Consumer Forum has held that Opposite Party has admitted that the letter dated 30.04.2007 has been written by him, on perusal of which it appears that the opposite party found the injuries in aggravated form and he also found that gangrene has developed which requires surgery and for surgical treatment the injured boy was referred to Patna.
The injured boy was examined in Popular Nursing Home where Dr. Mukhopadhyay found loss of thumb and little finger of the left hand of the victim boy which is apparent from the prescription issued by Popular Nursing Home dated 01.06.2007 and from the prescription it also transpires that the boy was admitted in Popular Nursing Home on 11.05.2007 and before said date there has been loss of thumb and little finger of the injured boy and the injured boy was operated on 12.05.2007 when left hand below the elbow was amputated and the injured boy was discharged on 01.06.2007 from the Nursing Home.
Heard the parties.
The onus to prove medical negligence lies on the complainant. To indicate negligence there should be material available on record or else medical evidence should be tendered. An exception to this rule applies where the circumstances surrounding at the material time, indicates such happening which does not happen in the ordinary course without negligence on the part of doctor.
Once initial burden has been discharged by complainant by making out a case of negligence it is for the doctor to satisfy court that there was no lack of care or diligence on his part. If a doctor does not adopt proper procedure in treating his patient and does not exhibit reasonable skill he can be held liable for medical negligence.
There is no evidence on record to suggest that opposite party had not exercised due care and caution in treating the patient and treatment given by him was not proper and acceptable at that point of time.
There is no evidence on record to suggest that opposite party had been negligent in pre and post operative treatment. No expert opinion was placed on record nor any medical evidence or medical literature was placed before the District Consumer Forum that subsequent development of gangrene was result of lack of care and skill of doctor while applying plaster over the fractured hand by the doctor.
It is submitted on behalf of counsel for the appellant that opposite party had adopted wrong treatment as in case of badly fractured bone, proper treatment was to initially apply soft bandage with support whereas opposite party has applied plaster of paris.
There can be more than one alternative course of treatment. Negligence can not be attributed to a doctor merely because the doctor chooses one course of action in preference to other, same being acceptable to the medical profession.
None of the parties have stated the complete truth. It is an admitted position that after applying plaster on 10.03.2007 patient was suppose to report after 3 days for review check up but he came after 11 days when complications had already developed and patient was feeling pain and when plaster was removed a foul smell was felt which suggests that fractured hand was already infected. There is no trust worthy and convincing evidence that opposite party performed operation and amputated thumb and finger of patient on 29.04.2007.
In the reference letter dated 30.04.2007 opposite party it has been admitted by him that gangrene has developed as patient did not heed to the medical advice and was negligent and careless in review check up.
Medical literature were brought by the counsel for the respondent in support of his contention that gangrene was a result of non-adherence by the patient of medical advice and poor follow up and lack of post operative care by complainant. As such finding recorded by the District Consumer Forum, that due to negligency of complainant the boy had to suffer permanent disablement can not be faulted.
For the reasons as stated above this Commission does not find any error or infirmity in the order passed by the District Consumer Forum requiring any interference by this court.
There is no merit in this appeal and accordingly, dismissed.
Ram Prawesh Das Sanjay Kumar, J
(Member) (President)
Md. Fariduzzama
