Punjab

Moga

CC/16/152

Amarjit Singh - Complainant(s)

Versus

Dr. Rashpal Singh Sandhu - Opp.Party(s)

Sh. Navin Kumar Palta

23 Aug 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 152 of 2016

                                                                                      Instituted on: 03.10.2016

                                                                                      Decided on: 23.08.2017

 

Amarjit Singh age 53 years son of Pritam Singh son of Lal Singh, resident of Agwar Kalu Ka, Ward no.1, Dharamkot, District Moga.

                                                                                ……… Complainant

 

Versus

Dr. Rashpal Singh Sandhu, M.B.B.S, M.S, M.H.C (Ortho), Sandhu Bone & Joint Hospital, Near Hotel Dev, Main Bazar, Moga, Tehsil & District Moga.

 

                                                                           ……….. Opposite Party

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Navin Kumar Palta, Advocate Cl. for complainant.

                   Sh. Tara Singh Sandhu, Advocate Cl. for opposite party.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Dr. Rashpal Singh Sandhu, M.B.B.S, M.S, M.H.C (Ortho), Sandhu Bone & Joint Hospital, Near Hotel Dev, Main Bazar, Moga, Tehsil & District Moga (hereinafter referred to as the opposite parties) directing them to pay Rs.20,00,000/- i.e. Rs.10,00,000/- for re-operation of legs of complainant Rs.2,00,000/- as miscellaneous expenses and Rs.8,00,000/- as compensation and damages for physical as well as mental pain suffered by the complainant due to wrong and negligent operation conducted by the opposite parties while affixing DF locking plate and ADM plate in the legs of the complainant.

2.                Briefly stated the facts of the case are that on 10.05.2016 at about 8.30 p.m. the complainant met with an accident and suffered multiple injuries and his both legs were fractured in that accident. The complainant was immediately brought to the hospital of opposite party and a sum of Rs.50,000/- was got deposited by the family of the complainant at the time of admission with opposite party. After that on 11.05.2016, the opposite party conducted operation on his right femur and left tibia and metallic plates were affixed in his right thigh and left leg and the opposite party demanded the amount of Rs.2,00,000/- for above said plates. The complainant and his family members paid the said amount to opposite party. The opposite party assured the complainant that the said metallic plates have been accurately affixed/inserted and complainant shall lead normal life after the prescribed period of 2/3 months. The opposite party gave guarantee regarding the affixation/inserting of plates, quality and performance of plates and successful operation conducted by them. On 16.05.2016, the opposite party discharged the complainant with a direction to visit again on 24.05.2016 for checking and further medical assistance. So, as per advice of opposite party, complainant again came to the hospital of opposite party on 24.05.2016. On that day, the opposite party removed the stitches and again got conducted X-rays. After examination of the X-ray, the opposite party told the complainant that the plates have been rightly and properly affixed and advised the complainant to visit the hospital for regular check up after the gap of every 7 days. The complainant visited the hospital of opposite party from time to time and took all the precautions given by the opposite parties and took the medicines regularly. The opposite party charged Rs.4000/- as check up fee and medicine expenses on every visit, which were paid by the complainant. However, the x-ray films, reports, details, films, detail of medicines and bills of metallic plates were not given to the complainant and the same was kept by the opposite party with them. The opposite party has also not issued any receipt regarding the payment made by complainant to them from time to time. Unfortunately, the complainant felt severe pain in his legs and approached to opposite party immediately, but they did not hear him. On 26.07.2016, the complainant visited the Civil Hospital Jagraon and the doctor Jatinder Sayal M.S. (Ortho) medically examined the complainant and he disclosed that operation conducted by the opposite party has not been conducted properly and accurately and metallic plates have not been affixed/inserted properly and he advised for re-operation of the legs of the complainant. Upon this, the complainant again visited the hospital of opposite party at Moga and told him that the plates have not been affixed properly and the complainant will have to under go re-operation of his legs, but the opposite party openly threatened that he is not responsible for the same and further insulted the complainant and his care takers. The complainant contacted Appolo Hospital, Ludhiana and the doctors of the said Hospital also advised the complainant for re-operation of his legs. The complainant inquired about the expenses for re-operation and he was informed that minimum amount of Rs.10 lacs is required for re-operation the legs of the complainant. The complainant has already spent a huge amount for affixing of metallic plates and on the operation of his legs, so he is not in a position to spend such huge amount of Rs.10 lacs again. Now, the complainant has become unable to do any work throughout his life and he will have remained dependent upon other during his entire life period. The complainant has regularly been suffering severe pain due to negligence operation of opposite party. The complainant requested the opposite party a number of times to admit his claim, but they flatly refused to do so. Due to the wrong and negligence operation of opposite party, the complainant has to suffer mental tension, harassment, financial loss and life time disability. Hence this complaint.

3.                Upon notice, opposite party filed written reply taking certain preliminary objections that the complaint is not maintainable under Consumer Protection Act, 1986; that the complainant has no cause of action to file the present complaint; that the complainant is liable to be burdened with special compensatory costs for putting up false and vexatious claim; that the complainant has concealed the true and material facts from this Forum. True facts are that the opposite party is qualified upto M.S. (Ortho) and trained under the able guidance of renowned Orthopedic Surgeons in Govt. Medical Collage, Amritsar in the year of 1995 to 1998 during his M.S. (Ortho) degree. After that the opposite party served as Orthopedic Specialist in Civil Hospital, Moga for six years and earned good reputation and vast experience. He is a regular delegate to National and International conferences in his field. In 2004, the opposite party resigned from the above said post in Civil Hospital, Moga and started his private practice under the name and style of Sandhu Bone and Joint Hospital, near Hotel Dev, Main Bazar Moga. In this way the opposite party is most experienced person in District Moga and adjoining Districts. On dated 5.5.2016 at 10 pm the complainant met with an accident with an unknown vehicle. After receiving information on telephone no.108, Sh. Gurmeet Singh i.e. driver of Ambulance of CH Moga got him admitted in Civil Hospital Moga, as unknown patient. On the same day Emergency Medical Officer of Civil Hospital, Moga duly informed to the police of P.S. City (South) Moga. On next day i.e. 6.5.2016, the complainant was identified by his son Rajbir Singh. On dated 9.5.2016 the attendant of complainant brought x-ray to the opposite party who checked and found fracture of left tibia and fracture of Lower end of right femur and gave his opinion about the treatment and suggested to bring the complainant in person in his hospital if they wanted treatment from him. Consequently, on dated 10.5.2016, the complainant was shifted to hospital of opposite party. On the same day the opposite party conducted pre-operation x-ray of complainant and diagnosed communted fractures of lower 1/3 of right thigh bone, comminuted fractures of lower 1/3 of left leg bone near ankle and anemia (HB 8.8 gm). The complainant very hardly stated his past history of 3-4 surgeries of abdomen and right leg. Immediately, alongwith other treatment, the complainant was transfused two units of blood and made him fit for surgery. On dated 10.5.2016, Rajbir Singh son of complainant gave his consent and authorized the opposite party and his assistants to perform the medical treatment, administration of anaesthesia, surgical operation of the complainant. Consequently, on 11.5.2016, the complainant was operated by the opposite party under spinal anaesthesia administered by Dr. (Mrs.) Sodhi and metallic plates were implanted/inserted to treat said fractures. Distal femoral locking plate was used for fracture of lower end of right femur and Anatomical Distal Metaphyseal (ADM) locking plate was used for fracture of lower 1/3 left tibia. Primary bone grafting was also done keeping in mind the possibility of future delayed union in this part of the bone. On the same day, the opposite party conducted per operation x-ray of the complainant. In this way no negligence has been committed by opposite party in the case of complainant. On the same day, the position of the plates were confirmed to be accurate with the help of computerized image intensifier present in the operation theatre of opposite party. After giving full and final treatment from dated 10.05.2016, till date 15.05.2016 and on dated 16.05.2016, the opposite party conducted the check x-ray of complainant and the same were found to be satisfactory and found that his physical condition was good. Consequently, on the same day, the complainant was discharged in good condition from the hospital with advice to re-visit the hospital for removal of the stitches after one week. At that time, the complainant was strictly advised not to bear weight on any limb till further orders. On dated 24.5.2016, the complainant visited the hospital, the stitches were removed and new medical prescriptions were given to him. The opposite party handed over all the OPD slips to the complainant at the time of his discharge. On this visit, against medical advise of opposite party, the complainant came to the hospital with the help of walker which was already forbidden for him. The opposite party gave warning to the complainant against using walker and against weight bearing. He was advised to wear a leg lacer all the time and to do bed rest for next three months. All these facts were in the knowledge of the complainant, but intentionally, he has not brought the same in the notice of this Forum. So, solely on this ground the complaint is liable to be dismissed. As such, the complainant is not entitled to any relief. On dated 13.6.2016, on request of the complainant, the opposite party issued a medical certificate to him. Later on the complainant tempered with the same by overwriting the word 16.5.2016 into 24.5.2016 for the reason best known to him. On merits, it is denied that the opposite party ever demanded amount of Rs.2,00,000/- for the plates. Rather, the opposite party received Rs.20,000/- from the attendant of complainant to purchase the plates and later on the plates were purchased for the same amount from Narula Surgical, Ludhiana against a valid receipt. No guarantee was given regarding the outcome of treatment. It is wrong that opposite party demanded Rs.4000/- as re-checkup fee and medicines expenses every time which were paid by the complainant. It is wrong that other reports, details, details of medicines, metallic plates were not handed over to the complainant and the same have been kept by the opposite party. It is also wrong that the opposite party had not issued any receipt regarding the amount paid by complainant to opposite party. In reality, the pre and post operative x-ray films are retained by the opposite party as property of the hospital. It is the duty of the attendant of the complainant to receive receipt/bills from the chemist shop from where they purchased the medicines, otherwise the opposite party has no responsibility to get receipt/bills from the above said chemist shops. Further it is wrong that the complainant felt severe pain in his legs and re-approached the opposite party who turned deaf ears and did not hear him. Rather during his visit the complainant never reported pain of any kind in his legs, otherswise, the opposite party must have treated him. Moreover, in conducting the operation of complainant, the opposite party has performed his best duty, so the opposite party is no negligence on their part. All other allegations made in the complaint have also been denied being wrong and a prayer for dismissal of the complaint with special costs has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-20 and in additional evidence documents Ex.C-21 to Ex.C-42 and closed the evidence. 

5.                On the other hand, Dr. Rashpal Singh Sandhu/opposite party tendered in evidence his duly sworn affidavit Ex.OP-1 alongwith copies of documents Ex. OP-2 to Ex.OP-14 and also tendered the affidavit of Dr. Prem Singh, of Prem Hospital Ex.OP-15 and his opinion Ex.OP-16 and documents Ex.OPW1/A and B, Ex.OPW-3/A and OPW-3/B and OP-4/A and B and examinations of Dr. Harpreet Singh Sethi and Dr. Harpal Singh Gill are Ex.OPW-3 and OPW-4 respectively and closed the evidence.

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

7.                The case of the complainant is that on 10.05.2016 he met with an accident and suffered multiple injuries and his both legs were fractured in that accident. He was immediately brought to the hospital of opposite parties and a sum of Rs.50,000/- was deposited by the family of the complainant. On 11.05.2016, operation of his right femnr and left tibia and metallic plates were affixed in his right thigh and left leg was conducted by opposite parties. The opposite parties charged Rs.2 lacs for the abovesaid plates, which was paid by family members of the complainant. Opposite parties assured that said metallic plates have been accurately affixed/inserted and complainant shall lead normal life after the prescribed period of 2/3 months and gave guarantee regarding the affixation/inserting of plates, quality of plates, performance of metallic plates. They discharged the complainant on 16.05.2016 with a direction to visit again on 24.05.2016 for checking and further medical assistance. The complainant visited the opposite parties on 24.05.2016 and on that day opposite parties removed the stitches and got conducted x-rays. They told to the complainant that plates have been rightly and properly affixed and advised the complainant to visit the hospital after every seven days. The complainant visited the hospital of opposite parties time to time and took all the precautions given by opposite parties. The opposite parties did not hand over the x-rays films, reports, bills of medicines and medical bill and bill of purchase of metallic plates to the complainant and they also not issued any receipt regarding the amount paid by the complainant. Thereafter, the complainant felt a severe pain in his legs and he immediately approached to opposite parties, but they did not hear him. On 26.07.2016, he visited Civil Hospital, Jagraon and Dr. Jatinder Syal M.S. (Ortho), who medically examined the complainant and disclosed that operation conducted by the opposite parties has not been conducted properly and accurately and metallic plates have not been affixed/inserted properly and advised for reoperation  of the legs. The complainant again visited the hospital of opposite parties and told him regarding this fact, but the opposite parties openly threatened that he is not responsible for the same and insulted the complainant. Thereafter, the complainant contacted Appolo Hospital, Ludhiana and doctors of Apollo Hospital, also advised the complainant for re-operation and told that the expenses for re-operation is Rs.10 lacs. The complainant requested the opposite parties a number of times to admit his claim, but they flatly refused to do so. Due to the negligence operation of opposite parties, the complainant has to suffer mental tension, agony, harassment and life time disability.

8.                On the other hand, counsel for opposite party argued that opposite party is well known and a qualified and experienced orthopaedic surgeon in the area. He has good reputation and vast experience in his field. The complainant has concealed true facts from this Forum. It is wrong that the complainant met with an accident on 10.05.2016. In fact the complainant met with an accident on 05.05.2016 at 10 pm with an un-known vehicle. He was admitted in Civil Hospital, Moga by the driver of 108 number Ambulance as un-known patient and officials of Civil Hospital, Moga duly informed the police regarding the same. On the next day, he was identified by his son Rajbir Singh. On 09.05.2016, the attendant of complainant brought x-rays of the complainant to opposite party, who check and found that fracture of left tibia and fracture of lower end of right femur and gave his opinion about the treatment and suggested to bring the complainant in person to his hospital. On 10.05.2016, the complainant was shifted to the hospital of opposite parties. The opposite parties conducted pre-operation x-rays of the complainant and diagnosed comminuted fractures of lower 1/3 of right thigh bone, comminuted fractures of lower 1/3 of left leg bone near ankle and anemia. The complainant stated his past history of 3-4 surgeries of abdomen and right leg. Immediately alongwith other treatment, the complainant was transfused two units of blood and made him fit for surgery. On 10.05.2016, Rajbir Singh s/o complainant authorized the opposite parties to perform the medical treatment, administration of anesthesia, surgical operation of the complainant. On 11.05.2016, the complainant was operated by opposite parties and metallic plates were implanted/inserted to treat the said fractures. Distal femoral locking plate was used for fracture of lower end of right femur and Anatomical Distal Metaphyseal (ADM) locking plate was used for fracture of lower 1/3 left tibia. Primary bone grafting was also done keeping in mind the possibility of future delayed union in this part of the bone. On the same day, the opposite party conducted per operation x-ray of the complainant. In this way no negligence has been committed by opposite party in the case of complainant. On the same day, the position of the plates were confirmed to be accurate with the help of computerized image intensifier present in the operation theatre of opposite party. After giving full and final treatment from dated 10.05.2016, till date 15.05.2016 and on dated 16.05.2016, the opposite party conducted the check x-ray of complainant and the same were found to be satisfactory and found that his physical condition was good. Consequently, on the same day, the complainant was discharged in good condition from the hospital with advice to re-visit the hospital for removal of the stitches after one week. At that time, the complainant was strictly advised not to bear weight on any limb till further orders. On dated 24.5.2016, the complainant visited the hospital, the stitches were removed and new medical prescriptions were given to him. The opposite party handed over all the OPD slips to the complainant at the time of his discharge. On this visit, against medical advise of opposite party, the complainant came to the hospital with the help of walker which was already forbidden for him. The opposite party gave warning to the complainant against using walker and against weight bearing. He was advised to wear a leg lacer all the time and to do bed rest for next three months. All these facts were in the knowledge of the complainant, but intentionally, he has not brought the same in the notice of this Forum. It is wrong that that the opposite party ever demanded amount of s.2,00,000/- for the plates. Rather, the opposite party received Rs.20,000/- from the attendant of complainant to purchase the plates. No guarantee was given regarding the outcome of treatment. It is wrong that opposite party demanded Rs.4000/- as re-check-up fee and medicines expenses every time. It is wrong that other reports, details, details of medicines, metallic plates were not handed over to the complainant and the same have been kept by the opposite party. It is also wrong that the opposite party had not issued any receipt regarding the amount paid by complainant to opposite party. In reality, the pre and post operative x-ray films are retained by the opposite party as property of the hospital. Further it is wrong that the complainant felt severe pain in his legs and re-approached the opposite party who turned deaf ears and did not hear him. Rather during his visit the complainant never reported pain of any kind in his legs, otherswise, the opposite party must have treated him. Moreover, in conducting the operation of complainant, the opposite party has performed his best duty, so the opposite party is no negligence on their part and prayed for dismissal of the complaint.

9.                To prove his case, the complainant produced on record copy of discharge certificate issued by opposite parties as Ex.C-2 and Ex.C-3, copy of OPD slip issued by Dr. Jatinder Syal, Civil Hospital, Jagraon is Ex.C-4, copy of discharge summary dated 19.11.2016 issued by SPS Hospital, Ludhiana is Ex.C-5, copies of bills and medicines of SPS Hospital are Ex.C-6 to Ex.C-20 from where he got re-operation of his left leg. He further produced copy of discharge summary dated 09.03.2017 issued by Dayanand Medical College and Hospital, Ludhiana Ex.C-21 and bills of hospitals and medicines issued by DMC and Hospital as Ex.C-22 to Ex.C-42, from where he got re-operation of his right leg. From the perusal of discharge summary of SPS Hospital, Ludhiana, it reveals that complainant admitted in the hospital with diagnoses of "Non Union Distal 1/3 rd both bone left leg with implant failure", wherein hospital procedure done 'Implant removal left distal tibia + debridement of non union site + open reduction and internal fixation with plating distal 1/3 rd both bone left leg + bone grafting from left iliac crest + A/K POP slab application done and in the discharge summary issued by Dayanand Medical College and Hospital, Ludhiana, the complainant was diagnosed as "Post Operated Case of Uniting Fracture Distal Femur & Proximal Tibia Right Side With Metal Work in Situ &n Varus Deformity Right knee joint post Operated case of Fracture Distal Tibia Left Side With metal Work in Situ. Hepatitis C.'

10.              Ld. counsel for complainant argued that this medical record proved that the opposite party did not conduct operation of the complainant properly and did not implant/insert metallic plates accurately and due to this reason the complainant has to undergone re-operation of his both legs, whereas, counsel for opposite parties argued that opposite party performed his duty perfectly as per medical procedure and there is no negligence on the part of opposite party. It is only due to the negligence of complainant for early weight bearing as he has undergone re-operation of his legs. He did not follow the medical advice and not taken another precaution as advised by doctor even he did not visit regularly for follow up. Only due to this reasons the surgery of the complainant was not successful and he had to undergone for re-surgery. To prove his version, the complainant produced affidavit and certificate of Dr. Prem Singh, Ortho Specialized, Moga as Ex.C-15 and Ex.C-16 respectively, who after inspecting all the medical record of complainant and pre & post operative x-ray films gave his opinion that opposite party have performed his best duty as per medical science and nothing should have been done more than this. There is no fault on the part of opposite party doctor in conducting the operation of complainant.

11.              To rebut the case of the complainant, the opposite party further summoned Dr. Harpal Singh Sethi, Professor Department of Orthopedic, Dayanand Medical College and Hospital, Ludhiana as OPW-3, who conducted the re-operation of the right leg of the   complainant in Dayanand Medical College and Hospital, Ludhiana. The said doctor gave his statement that complainant was operated for Uniting Fracture Distal Femur and Proximal tibia right sight with metal work in situ and varus deformity right knee joint (post operated case of fracture distal tibia left side with metal work in SITU with Hepatitis C. He was operated for metal work removal, Distal femur Osteotomy and application of ilizarov Fixator. The bone was in the process of union and plate was not broken but bent. The bone was uniting in a deformed position, therefore, surgery to correct the alignment was required. The deformity has occurred due to bending of the plates. Most common reason for bending of the plates is early weight bearing on the injured lower limb. The early weight bearing is due to negligence of the patient as he knowingly or unknowingly put weight on the injured part against the medical advice. He has seen the pre and post operative x-rays of the complainant taken by the opposite party and the same are Ex. OPW-3/A and OPW-3/B duly signed by the opposite party. The post operative x-rays shows that the fracture is well align and reduced with well fixed plate and screws. The x-rays do not show any deformity or bending of the plates. The complainant was discharged from their hospital on 09.3.2017. He was admitted for second time on 20.4.2017 as his osteotomy had prematurely healed and before complete correction of the deformity. The reason of second hospitalization and operation was needed as he did not follow the advise in totality and the same has been documented on the out- patient card given to the patient. The reason for the same is due to complainant's negligence or inability to follow the instruction of the doctor. As per the injury suffered by the complainant in those cases, we advise to patient not to put weight for atleast 12 weeks or signs of fracture union after operation, whichever is later. He further summoned Dr. Harpreet Singh Gill, Senior Consultant, SPS Hospital, Ludhiana as Ex.OPW-4, who conducted the re-operation the left leg of the complainant. He stated in his statement that Patient Amarjit Singh s/o Pritam Singh admitted on 14.11.2016 with Non Union Distal 1/3 rd both bone left leg with implant failure (6 months old) for which was operated for implant removal left distal tibia + debridement of non union site + open reduction and internal fixation with plating distal 1/3 rd both bone left leg + bone grafting from left iliac crest + A/K/POP slab application done on 15.11.2016. The patient was stable and discharged on 19.11.2016. He also brought the follow up record of the patient as per his record patient came for check-up for last time on 17.02.2017. As per medical opinion the patient was required to follow up with doctor for atleast six months after the surgery, but the complainant made follow visits with him only for about three months. He has seen the pre operative x-ray dated 10.05.2016 and post operative x-rays dated 16.05.2016 done by Dr.Rashpal Singh Sandhu and the same are Ex.OP-4/A and B. As per these x-ray films the doctor have done his duty perfectly as per requisite treatment as required. What was required, it was properly done by the opposite parties. The complainant visited to him with complaints of pain, swelling, deformity, unable to weight bear on left lower limb x 6 months on 14.11.2016. The cause for this was non union of fracture. Certain fractures patterns and sites in the body are prone to non union of fractures and this distal tibia. There was breakage of plate because of non union. The cause of breakage of plate might be due to early weight bearing by the patient. Every implant can break if the fracture gone into non union.

12.              These doctors have seen the pre and post operative x-ray films conducted by the opposite party doctor of the legs of the complainant prior to surgery and after the surgery and also medical record of the complainant regarding the treatment given by opposite party in his hospital and after investigating these records, both the doctors gave their opinion that opposite party has gave right treatment and affixed the metallic plates properly and accurately. As per medical guidelines, there is no negligence on the part of opposite parties in conducting the surgery of the complainant. These both doctors stated in their evidence that the complainant was not care about the medical advice gave by the doctors and did not follow the instructions of the doctors even after his re-operation. Even Dr. Harpal Singh Sethi stated that the complainant admitted in their hospital on 02.03.2017 for reoperation of right leg and discharged on 09.03.2017 and after operation he again admitted for second time on 20.04.2017 as his osteotomy had prematurely healed and before complete correction of the deformity. The reason of second hospitalization and operation was needed as he did not follow the advise in totality and the same has been documented on the out- patient card given to the patient. The reason for the same is due to complainant's negligence or inability to follow the instruction of the doctor. As per the injury suffered by the complainant in those cases, the patient was advised not to put weight for atleast 12 weeks or signs of fracture union after operation, whichever is later. Even Dr. Harpreet Singh Gill, Sr. Consultant, SPS Hospital also stated that as per medical opinion the patient was required to follow up with doctor for atleast six months after the surgery, but the complainant made follow visits with him only for about three months. So, the reason for the complications arrived in the case of the complainant and for re-operation of the complainant is only due to the his own negligence and ignoring the medical advice of doctors and early weigh bearing against the medical advise of doctors. He argued that complainant failed to prove his case that there is no negligence on the part of doctors. It is for the complainant to prove the negligence of opposite party by adducing cogent evidence and opinion and in the absence of cogent evidence against the opposite party, he cannot be held as negligent. They have done their best treatment, which is available to the complainant. The complainant has not proved his case by any expert medical evidence and by mere allegations of medical negligence it cannot be proved. In his support he put reliance on the citation Usashi Mukherjee & anr. Vs Coal India Ltd. and ors. 2010 (1) Consumer Law Today, 136, in a case of Medical Negligence, it was observed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that "medical negligence-Burden of proof- the onus to prove medical negligence lies largely on the claimant – the onus can be discharged by leading cogent evidence – a mere averment in complaint which is denied by the other side cannot be said to be evidence by which case of complainant can be said to be proved – it is the obligation of the complainant to provide the facta probanda as well as the facts probantia". He further put reliance on the citation 2014 (3) Consumer Law Today, 9 titled as Vijay Dutt Vs Dr. R.D. Nagpal & others whereas Our Hon'ble National Commission, New Delhi observed that "Consumer Protection Act, 1986, Section 2 (1) (g) – Medical Negligence – doctors cannot give a warranty of the perfection of their skill or a guarantee of cure and if the doctor has adopted the right course of treatment and if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured". He further put reliance in citation 2010 (2) Consumer Law Today, 282 (SC) titled Kusum Sharma & ors. Vs Batra Hospital & Medical Research Centre & Ors, whereas Our Hon'ble Apex Court laid down Basic principles regarding medical negligence which are reproduced as under:-

                   "On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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 where 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 conductive 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.

                   In para no. 90 our Hon'ble Apex Court has observed that As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind".

13.              From the above discussion and after appreciation the evidence produced by both the parties and statements of Dr. Harpal Singh Sethi, Professor, Department of Orthopedic, Dayanand Medical College and Hospital and Dr.Harpreet Singh Gill, Sr. Consultant, SPS Hospital, Ludhiana, we come to the conclusion that opposite parties done the right treatment, which was possible at the time with his full skill and there is no negligence on the part of doctors. We are fully convinced with counsel for opposite parties. We found no merit in the present complaint and the same is hereby dismissed with not order as to cost. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 23.08.2017.

 

                                       (Bhupinder Kaur)         (Vinod Bala)        (Ajit Aggarwal)

                                           Member                       Member                President