Haryana

Karnal

06/2013

Sumer Chand S/o Shri Dharampal - Complainant(s)

Versus

Dr. Vinod Kumar, Ortho Surgeon, General Hospita - Opp.Party(s)

R.K. Sharma

16 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No. 06 of 2013

                                                             Date of instt. 04.01.2013

                                                               Date of decision:16.09.2016

 

Sumer Chand son of Shri Dharampal, aged 48 years, caste Lohar, resident of House no.344, Peepalwali Gali no.3, Basant Vihar, Karnal, Tehsil and District Karnal.

 

                                                                         ……..Complainant.

                                                Versus

Dr. Vinod Kumar, Ortho Surgeon, General Hospital, Karnal.

 

                                                                                 …………Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri R.K. Sharma Advocate for complainant.

                    Shri G.P.Singh Advocate for opposite party.

                                     

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he met with an accident at Yamuna Nagar on 6.4.2010 and suffered left hip fracture. For treatment of the said fracture, he went to General Hospital, Karnal on 8.4.2010 and met opposite party, who after thorough examination told that operation would be conducted on left hip and steel plate would be inserted, but an amount of Rs.5000/- will have to be deposited for that purpose. He accordingly gave the amount to the opposite party and thereafter operation on left hip was conducted. He acted as per the advice of opposite party, but there was severe pain in his left hip despite operation. He complained to the opposite party, who assured that after change of medicines he would be fine within few days, however, uptil 20.11.2010 there was no improvement in the pain. So, he again met opposite party on 22.11.2010 and after examination, the opposite party told that the previous operation was not successful, therefore, another operation will have to be conducted. He was asked to deposit Rs.5000/- for inserting the steel plate and conducting operation. On 8.12.2010, the opposite party again conducted operation and inserted a steel plate in the left hip, but the said operation was also not successful as there was severe pain in his left hip. Thereafter, he again met the opposite party and complained about the pain, but the opposite party expressed his inability to give proper treatment as the condition of the injuries was out of control. The opposite party asked him to get his treatment in some other hospital. Thereafter, he went to Shri Hari Hospital, Karnal for further treatment and after getting treatment from there, he felt some relief and found that opposite party was negligent due to which he could not recover and had to suffer a lot. Due to negligence of opposite party, he remained on bed for a long time and could not walk properly. Thus, acts and conduct of the opposite party amounted to deficiency in service, mal practice and unfair trade practice, which caused him mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite party, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that the complainant has no locus standi and cause of action to file the complaint and that the complaint is bad for non-joinder of the State of Haryana as party.

                   On merits, it has been submitted that the complainant was admitted in Trauma Centre of Civil Hospital Karnal with the history of fall. He was admitted to the Orthopaedic ward and was diagnosed to be suffering from Fracture Neck of Femur Bone of the left side. He was operated upon on 16.3.2009 with 3 lag screws to unite the femur neck fracture. He was again admitted to Civil Hospital Karnal on 4.2.2010. On examination it was found that there was non-union of fracture neck femur. Dynamic Hip Screw(DHS) with valgus osteotomy operation was performed on 6.2.2010. The complainant deposited Rs.5000/-in the hospital as he opted for surgical package no.1203 according to which a patient has to deposit a sum of Rs.5000/- with the hospital authorities and all the pre-operative as well as post-operative medicines and intra operative medicines are given to him free of cost, besides, that no amount is charged towards bed charges, anesthesia and medical care. All these facilities are provided free of cost as per the said package. However, the patient had to purchase implant from the market at his own cost. At the time of his first operation, which was conducted on 16.3.2009, the complainant was charged only Rs.140/-by the hospital against valid receipt no.457/45685 dated 30.3.2009. He had gone for a special surgical package at the time of his second operation, therefore, an amount of Rs.5000/- was charged as per Government Policy. It has further been pleaded that the femur neck fracture is a very problematic fracture and incidents of non-union of such fracture are very high especially in the patients of young and middle age group. The reason for the high rate of non-union despite operation is inherent in the very nature of the fracture. Infact, because of injury to the retinacular vessels to the femoral head, there is avascular necrosis which leads to non-union of the fracture. Femoral neck fracture is often labeled as unsolved fracture. Damage done to the vascular supply of the femoral head is a result of the injury itself and consequences of this are out of control of the surgeon. The blood supply to the femoral head from the capsular vessel running in retinaculae  close to the bone is often cut off by the fracture. If, this happens, some avasular necrosis of the femoral bone is inevitable posing failure or non-union and often giving rise to a pain full degenerative arthritis. The documents attached by the complainant indicate that he was treated at Shri Hari Hospital by way of conservative treatment i.e. with antibiotic as well as pain killers. Neither diagnosis was prepared nor any  invasive treatment was given to the complainant. The allegations regarding negligence or unfair trade practice have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex. C2 to C14 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of opposite party Ex.O1 has only been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The complainant had suffered Fracture Neck of Femur Bone of the left side. He was operated upon by opposite party in Civil Hospital Karnal with 3 lag screws to unite the femur neck fracture, but the fracture did not unite, therefore, he was operated again by the opposite party with Dynamic Hip Screw with valgus osteotomy. It has been alleged by the complainant that the operation were not successful and he continued to suffer with severe pain in his left hip, therefore, he got further treatment from Shri Hari Hospital, Karnal and felt some relief. It has further been alleged that the opposite party was negligent  in performing operations, due to which he could not recover and had to remain on bed for long time.

7.                In case of medical negligence, the specific allegations regarding negligence on the part of the doctor have to be proved and the onus of which lies on the complainant. A professional charged with the negligence is to show that he acted in accordance with general and approved practice. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. The doctor has discretion in choosing treatment which he proposes to give to the patient, but such discretion is relatively ampler in cases of emergency. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1 considered as to what constitute medical negligence and laid down as under:-

          “Negligence is the breach of a duty caused 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.

          2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptance to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

          3. A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

          4. The test for determining medical negligence as laid down in Bolam’s case (1957) 1 W.L.R. 582, 586 holds good in its applicability in India.”

          5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

          6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be rea as qualified by the word ’grossly.’

          7. 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. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

          8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service or determining per se the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

 

In Jacob Mathew (supra) the three Judge Bench of Hon’ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halspbury’s laws of England (4^th Edition Vol.30 para 35) as follows:

          “35. The practitioner must bring to his task 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way.”

 

8.                In Martin F. D’Souza Versus Mohd. Ishfaq 1(2009) CPJ 32 (SC),  Hon’ble Supreme Court observed as under:-

          “From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”

          “When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyers cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

          “Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.”

 

9.              In Revision Petition no.1311 of 2013 titled Rajiv Navath Versus Dr. Shajahan Yoosaf Sahib and others’ (NC), Hon’ble National Commission held as under:-

          “12. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Honorable Supreme Court of India and by several orders of this Commission. In the Bolam’s case (Bolam Vs. frien Hospital Management Committee (1957) 1 WLR 582. The locus classicus of the test for the standard of care in law, required of  doctor, developed from this landmark case. Mr. Justice McNair, in his direction to the jury, said:

          (a doctor) is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting if the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view”.

 

10.              In S.N. Singh (DR.) Versus Devendra Singh & Anr. III( 2011) CPJ 390 (NC),  Hon’ble National Commission while relying upon the judgment of Hon’ble Supreme Court and held as under:-

          “17. In C.P. Sreekumar (Dr.) MS (Ortho) Vs. S. Ramanujam, II(2009) CPJ 48 (SC)=(2009) 7SCC 130, the Supreme Court held that bald statement of the complainant cannot be accepted to reach conclusion that the Doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending Doctors and frequent interference by Courts could be a dangerous proposition as it would prevent Doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer.”

 

11.              Hon’ble National Commission in Mohd. Abrar Versus Dr. Ashok Desai and others, 2011 CTJ 613 (CP) (NCDRC) has observed as under:-

          “ The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practioner and there was clear material available to foresee the injury.”

 

12.              It is well settled principle of law that a physician cannot assure the patient of full recovery in every case.  A surgeon cannot guarantee that the result of surgery would invariably be successful, much less to the extent of 100% for the person operated upon. The only assurance, which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. A medical practitioner cannot be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment, in choosing one reasonable course of treatment, in preference to another. A medical practioner would be liable, only where his conduct fell below that of the standards of a reasonably  competent practioner of such field.

12.              The complainant had suffered fracture neck of femur bone of the left side. He was operated upon twice by the opposite party for uniting the fracture, but the fracture did not unite and he allegedly continue to suffer pain. The onus was upon the complainant to prove as to how the opposite party was negligent while performing the said operations.

13.              During the course of arguments learned counsel for the opposite party produced the copy of Medical Literature regarding fracture and joint injuries. While discussing the management of intracapsular fractures of the femoral neck, it has been observed that the patients can be arbitrarily divided into three age groups in which the treatment required, the complications likely to occur, and  the prognosis will vary considerably. These groups are :

1.       Fractures in the elderly (over 70 years of age).

2.       Fractures in the young and middle aged.

3.       Fractures in children.

 

          Each group has its own problems, but it must be remembered that there is one factor common to them all the danger of injury to the retinacular vessels with avascular necrosis of the femoral head. This can sometimes be the cause of non-union of the fracture whatever method is used for immobilization and even in cases where union has occurred late avascular change in the weight bearing segment of the femoral head can result in a stiff and painful joint. It is not without reason that the injury has been labelled the unsolved fracture. Damage done to the vascular supply of the femoral head as a result of the injury itself and the consequences of this are quite out of the control of the surgeon. The blood supply to the femoral head from capsular vessels running in retinaculae close to the bone is often cut off by the fracture. If, this happens some avascular necrosis of the femoral head is inevitable, causing delayed or non-union, and often giving rise to a painful degenerative arthritis within a few years. Thus, despite all operative skills, a perfect functional result from the nailing operation cannot always be secured and occurs in only about two thirds of the cases, whichever appliance is used.

13.              From the above observations regarding treatment of intracapsular fractures it is emphatically clear that delayed or non-union and often giving rise to a painful degenerative arthritis are common and out of control of the surgeon. Complainant has led no evidence worth the name on record, which may show any act of medical negligence or deficiency in service on the part of the opposite party. Mere fact that he was having severe pain in his left hip despite two operations performed by the opposite party, does not lead to the conclusion that the opposite party was negligent in performing the operations. There is no dispute about the fact that the opposite party is a qualified Orthopedic Surgeon. He adopted the known procedures while conducting both the operations for fracture neck of left femur of the complainant. Under such circumstances, we have no hesitation in observing that the opposite party had done whatever best could be possible for uniting the fracture neck of femur left hip of the complainant and the complainant has altogether failed to prove that there was any negligence or deficiency in service on the part of the opposite party.

14.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 16.09.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member