Telangana

Mahbubnagar

CC/09/26

P.Balraj, S/o Buchaiah, O/c Business - Complainant(s)

Versus

Dr.G.Laxmikanth Reddy, M.S.Orthopedic Surgeon - Opp.Party(s)

Sri Y.Ravi Kumar Yadav

17 Jul 2009

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Friday the 17^th day of July, 2009

  Present:-   Sri  T. Ashok Kumar, M.A., LL.B., I  Addl. Dist. & Sessions  Judge-cum-FAC President

          Sri P.Venkateshwar Rao, B.Com. LL.B., Member

               Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member                      

C.C.NO. 26  Of   2009

Between:-

P. Balraj, S/o Buchaiah, Aged: 44 years, Occ: Business, R/o H.No.1-7-218/17, Kotha Cheruvu Road, Mahabubnagar.  

                                                                                                                                                                       … Complainant

And  

Dr. G. Laxmikanth Reddy, M.S. Orthopedic Surgeon, Shree Dhanvantri Hospital, Shetty Complex, Rajendranagar, Mahabubnagar.

                                                                                                                                                  … Opposite Party

 

 

 This C.C. coming on before us for final hearing on 3-7-2009,in the presence of Sri Y. Ravi Kumar Yadav, Advocate, Mahabubnagar for the complainant and of Sri G. Prakash Babu, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:

O R D E R

(Sri P. Venkateshwar Rao, Member)

1.        This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay a sum of Rs.3,00,000/- to the complainant towards compensation and also to pay costs of the complaint.
2.      The brief facts of the complaint are that the complainant was met with an accident on 27-9-2008 and he was shifted to opposite party hospital.  The opposite party immediately confirmed the fracture and conducted surgery and inserted rod inside the right leg and treated till  3-10-2008 and discharged the complainant with an advise to visit on   8^th and 22^nd October, 2008 for follow-up treatment and asked to undergo for physiotherapy exercise.  The complainant followed the said advice.  While doing physiotherapy exercise, the complainant experienced acute pain and observed swelling over his right leg.  The same was informed to the opposite party but he failed to attend.   The complainant approached Dr. C. Kamaraju, Orthopedic Doctor at Kamineni Hospital.  The said doctor found fault in fitting the rod by the opposite party and he told that the rod was wrongly fitted with one screw instead of fixing two screws which resulted the pain and prolonged treatment apart from other pain and sufferings.  Though the legal notice was issued by the complainant there was no response from the opposite party.  Therefore the opposite party rendered deficient services by giving treatment negligently.  As such, the opposite party is liable to pay Rs.3 lakhs towards compensation apart from costs of the proceedings.   On the other hand the rebuttal contention of the opposite party is that the procedure which was followed is being followed throughout the world and also according to the medical literature.  The opposite party has no idea about the subsequent treatment said to have been given by Dr.C.Kamaraj.  In fact during the following visits the complainant came to the opposite party hospital walking independently with the support of walker.  The opposite party has given proper, good and required treatment to the complainant, however the complainant has filed the complaint to harass the opposite party and to extract money and he has not approached the Forum with clean hands.  Therefore, there is no negligence or deficiency in service on the part of the opposite party. Thus the complaint is liable to be dismissed with costs.
3.  The complainant filed his affidavit and got marked Exs.A-1 to A-4 on his behalf.

4.  The opposite party filed his affidavit and got marked Exs.B-1 and B-2.

5.  Heard the learned counsel for both the parties at length.

6.  The point which falls for consideration is whether the complainant has proved his case of medical negligence against OP?  If so to what relief he is entitled?

7.    There is no dispute with regard to the accident, fracture and its treatment by OP and follow up treatment.  There is also no dispute with regard to issuance of legal notice by the complainant.  The only issue to be decided is whether the OP doctor was negligent in conducting the surgery and inserting the rod. The complainant averred that while subsequent treatment at Kamineni Hospital, the Orthopedic Doctor  C. Kamaraj who treated the complainant expressed his opinion that OP was so negligent in fitting the rod as he was fitted the rod with one screw instead of two screws.   The complainant relied upon Exs.A-1 to A-4 to prove his case of medical negligence against OP doctor.  Ex.A-1 is prescription of OP.  Ex.A-2 is discharge summary.  Ex.A-3 is legal notice issued by the complainant and Ex.A-4 is the acknowledgement of Ex.A-3.  There is no dispute with regard to these documents.  However these documents are not revealing any negligence in treatment given by OP doctor.  The complainant has not filed any material to prove his allegations and also not chosen to examine Dr. C. Kamaraj who said to have expressed opinion about the negligence by OP in fitting the rod.               

   To establish the allegations with regard to the surgery and wrong insertion of rod by OP has neither been challenged nor faulted by way of any expert evidence nor the complainant has shown any medical literature that what was done was not the correct approach to deal with the situation.   No evidence has been led by the complainant to show that as to what ought to have been done by OPs which was not done or what was done which ought not to have been done.   

   It is by now a settled proposition of law that in case of medical negligence onus to prove medical negligence heavily lies on the complainant.  The Hon’ble National Commission had occasion to deal with this issue in the case of Dr. Harkanwaljit Singh Saini  Vs. Gurbax Singh and another reported in CPJ 2003 (1) P.153 wherein it was held that; 6. “The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based”.  In another decision  the Hon’ble National Commission in the case of Kanhaiya Kumar Singh Vs. M/s Park Medicare and Research Centre, reported in CPJ 1999 (3) P.9 held that “The medical negligence has to be established and cannot be presumed”.

      In the recent judgment in Martin F.D’Souza Vs. Mohd.Ishfaq case reported in CPR 2009(1) page 231 (SC), the Hon’ble Supreme Court held that;

     “ A medical practitioner is not liable to be held negligent 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.  He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field…”

                                                       (Para 41)

“It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.  As Lord Clyde stated in Hunter Vs. Hanley 1955 SLT 213:

“ In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men …   The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…”                                                                                                        (para 43)

    In light of the above decisions, we hold that unless the complainant proves the medical negligence through legally acceptable evidence and through the opinion of experts and evidence of experts medical negligence cannot be inferred.

    In view of the aforesaid reasons we conclude that the complainant failed to prove the case of medical negligence against OP.  Thereby we find no merit in this complaint, accordingly we hold that the complainant is not entitled for any amount as claimed under the complaint and further this complaint is liable to be dismissed.    

8. In the result, the complaint is dismissed without costs.  

   Typed to dictation, corrected and pronounced by us in the open Forum on this the 17^th day of July, 2009.           

 

     MEMBER                            MEMBER                   PRESIDENT (FAC)     

         Appendix of evidence

       Witness examined

For complainant: Nil                                                 For opposite party:  Nil

Exhibits marked for Complainant:-

Ex.A-1:        Prescription given by OP, dt.8.10.2008.

Ex.A-2:        Discharge Summary, dt.3.10.2008.

Ex.A-3:        Legal Notice, dt.22.1.2009.

Ex.A-4:        Acknowledgment, dt.26.1.2009.

Exhibits marked for OP:-

Ex.B-1:        Photographs of right leg of the complainant (3).

Ex.B-2:        Extract from Bone Procedure.                                                                                                                     

By the Forum:   

    - Nil-

                                                                                                                                                                                                                                                                                                                PRESIDENT (FAC)

Copy to:-

1. Sri Y. Ravi Kumar Yadav, Advocate, Mahabubnagar for the complainant.
2. Sri G. Prakash Babu, Advocate, Mahabubnagar for the opposite party.