BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

                                     FORUM, BHIWANI.

                                                          Complaint case no.        :  215 of 2015

                                                          Date of Institution         :  31.07.2015

                                                          Date of decision   :  27.02.2020

Parveen Kumar son of Sh.Krishan Lal resident of village Kahnaur, Tehsil Kalanaur District Rohtak.

    ……. Complainant.

                                                          Vs.

1.Dr.Ranvir Panghal, Ranvir Hospital, Meham Road, Bhiwani (Haryana).

2.Dr.Sanjeev Mandola, C/O Ranvir Hospital, Meham Road, Bhiwani (Haryana).

3.United India Insurance Company Limited, Zoo Road, Bhiwani bearing policy No.1112022715P10120468 w.e.f. 12.10.2015 to 11.10.2016.

 ….…. Opposite Parties.

Before:        Sh. Nagender Singh, President,

Sh. Shriniwas Khundia, Member.

Present:       Sh. Vijay Ranga, Advocate  for complainant.

                   Sh. R.K.Verma, Advocate for Opposite parties.

ORDER:

                   In nutshell, brief facts of the present complaint are that the  complainant met with an accident on 12.06.2015 and sustained injuries on his left hand,therefore, he visited the opposite party No.1,who after X-ray examination, applied plaster on the hand of the complainant and also gave some medicines by charging Rs.3,000/-. There was no relief in the pain, therefore, on 19.06.2015, the complainant again visited the opposite party No.1 but the opposite party No.1 did not attend him, therefore, the complainant visited Neel Kanth, Ultrasound/X-ray Centre and got conducted X-ray and came to know that the plaster was missed at the point of fracture. On 20.06.2015, the complainant visited opposite party No.1 but asked for this  but he failed to give satisfactory reply.  On 20.06.2015, the complainant visited Civil Hospital, Bhiwani where he came to know that due to leaving the fractured area the pain started increasing with swelling.  The doctors had applied plaster on Meta Carpal Bone of the complainant and advised rest for 45 days.  Due to carelessness and professional negligency on the part of opposite party No.1, the complainant has suffered mental agony, harassment, pain, suffering and financial loss. Hence, this complaint.

2.                          On notice, opposite parties appeared and filed their separate replies. Opposite party No.1 in its reply has taken preliminary objections such as cause of action, locus standi, maintainability, jurisdiction, non-joinder of necessary parties and concealment of material facts from this Forum. It has been further submitted that the complainant had visited opposite party No.2 in emergency (OPD emergency No.1763) with history of road side accident on 12.06.2015. The opposite party No.2 advised him X-ray and found suspected fracture lower and radius and no bonny injury on foot, therefore, he gave POP splint for first aid and gave him medication for pain control and swelling with advise to report in routine OPD in the next morning for further evaluation and definite treatment. The complainant had paid Rs.500/- as emergency fee and did not pay the plaster fee. No medicine was sold to the complainant. Thereafter, the complainant had never visited the opposite party No.2. There is no medical negligency on the part of answering opposite party. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                                      Opposite parties No.2 & 3 in their separate replies have taken more or less the same grounds as taken by opposite party No.1. Both these opposite  parties have controverted the grounds taken by the complainant and prayed that there is no deficiency in service on the part of opposite parties and even as per medical guidelines there no medical negligence on the part of opposite parties No.1 & 2.  Lastly, prayer for dismissal of the complaint has been made.

3.                To prove his version complainant tendered his affidavit as Ex.PW1/A and documents Annexure C1 to Annexure C9 and close the                          evidence on 25.04.2019. On the other hand, counsel for opposite parties has tendered document Annexure R1and closed his evidence on 22.10.2019.

4.                We have heard learned counsel for the parties and carefully gone through the case file besides written submissions submitted on behalf of the opposite parties.

5.                The complainant has come with the plea that he received injuries in road side accident on 12.06.2015 and therefore, he had visited opposite party No.1 where the opposite party No.2 had treated and also applied POP after conducting the X-ray besides medications but due to increasing of pain and swelling he again visited the opposite party No.2 on 19.06.2015 but he was not attended by him, therefore, he visited the Neel Kanth Ultrasound/X-ray Centre and got conducted X-ray and came to know that the plaster was missed at the point of plaster. After that he had visited the General Hospital on 20.06.2015 where the doctor had opined that the plaster has not been applied on the fractured area and further made a new plaster on the Meta Carpal Bone and advised rest for 45 days.  It has been further argued that due to professional/medical negligency on the part of opposite party No.2 he has suffered pain, mental agony and harassment.

6.                          On the other hand the opposite party No.2 has come with the plea that the complainant came with the history of road side accident on 12.06.2015, at around midnight with OPD emergency No.1763 and after examining him injuries were found on wrist and foot. X-ray was advised on suspected fracture lower and radius and no bonny injury was found on foot. The opposite party No.2 gave POP splint for first aid and gave him medication for pain control and swelling and advised to report in routine OPD in next morning for further evaluation and treatment. It has been further pleaded that the complainant had never visited the opposite parties No.1 & 2 thereafter.

7.                          Undisputedly, due to injuries sustained by the complainant in road side accident, the complainant had visited the opposite party No.1 where the opposite party No.2 had treated him and applied POP besides medications as is evident through document Annexure C1.  It is admitted fact by opposite party No.2 that due to suspected fracture x-ray was done besides medications.  The opposite party No.2 has specifically mentioned in the written statement that as per medical terminology and medical literature there was no medical negligence on its part rather the complainant had not visited him for routine OPD and further evaluation as the POP splint for first aid and medications were given to him for pain control and swelling. The plea taken by the opposite party No.2 is not plausible because had the complainant not remained in continuous pain and swelling on fractured area he would not have visited Neelkanth Ultrasound and x-ray centre on 19.06.2015 and further General Hospital on 20.06.2015 for further treatment and the plea of the complainant that he had visited the opposite  party No.2 on 19.06.2015 is quite believable.  The plea of the complainant that the opposite party No.2 has left the fractured area and applied the plaster on other area is also found support from the x-ray film Annexure C5 clicked by Neel Kanth  Ultrasound and x-ray centre, Bhiwani as from bare eyes it can be easily seen that the fracture area has been left by the attended doctor/opposite party No.2.  The plea of the opposite party No.2 that the POP splint for first aid was given to the complainant is also appears to be made in order to fill the lacuna as well as to meet out the excuse of medical/professional negligency. For the sake of arguments, if we presume that it was a first aid POP splint, in that eventuality, the fractured area should have also been covered but the same was left without applying the fracture on the same.  No doubt the opposite party No.2 had moved an application for sending the file to Chief Medical Officer/Medical Officer General Hospital, Bhiwani on 04.09.2018 for expert opinion but this Forum had dismissed the application on 10.01.2019 with observation that the application had been filed just to linger on the proceedings as the opposite party No.2 had not filed the written statement for a longer period as it had firstly appeared through his counsel before this Forum on 31.05.2016.  The act and conduct of opposite party No.2 clearly reveals that he was very well aware about the medical negligency and waited for a longer period for moving the application for expert opinion.  Moreover, the plea of taking expert opinion from the Chief Medical Officer/Medical Officer, General Hospital, Bhiwani can also be rejected on the ground that the complainant had visited the General Hospital on 20.06.2015 and also obtained further treatment from it Annexure C7 to Annexure C9.  Further, it is worth-while to mention here that keeping in view the technical nature of the medical profession, negligent acts of omission or commission need to be verified by fellow doctors who hardly ever support the patient. Besides, victims fear that reporting cases of malpractice will deny them treatment in future. Even in the present case when the opposite party No. 2 have not even bother to attend the complainant, therefore, at this stage the opposite party no. 2 cannot raise a plea that there is no expert opinion. Normally, the liability of a doctor arises not when the patient has suffered any injury/problem but when the injury/problem has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury/problem suffered by a patient. He/she is liable for only those that are a consequence of a breach of his/her duty. Moreover, no expert opinion is required in all medical negligence cases. The opposite party No. 2, at this stage, cannot escape from his liability by saying that the complainant has never visited after giving POP splint first aid. On this point reliance can be taken from judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself”. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. Law laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another (supra), wherein claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. In the present case res ipsa loquitur principle is applied. Hon’ble National Commission in case title as Tarun Thakore vs. Dr. Noshir M. Shroff (OOP No. 2015/2000 dated 24-09-2002) made some observation about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment. In the present case, the complainant has established that due to medical negligency on the part of opposite party No.2, he has suffered pain, suffering and mental agony etc.

8.                          We have perused the document Annexure R1 i.e. Professional Indemnity Doctors Policy. The period of the policy is 12.10.2015 to 11.10.2016, but as per the version of the complainant and opposite party No.2, the incident took place on 12.06.2015, meaning thereby that, this policy does not cover the indemnity of the negligent doctor because the policy was obtained after the treatment given to the complainant.

9.                             In view of the above facts and circumstances, we hereby allow the present complaint against the opposite party No.2 only and the opposite parties No.1 & 3 are exonerated from the allegations leveled against them by the complainant. Therefore, the opposite party No.2 is directed to pay a sum of Rs.50,000/- as compensation for mental agony, harassment, illness, pain and sufferings besides Rs. 5,000/- as cost of litigation within 30 days, failing which, the awarded amount would carry 9 % interest from the date of filing of complaint till its realization. Copy of this order be supplied to both the parties free of costs.  File be consigned after due compliance.

Announced in open Forum.

Dated: - 27.02.2020               

                                      (Shriniwas Khundia)           (Nagender Singh)

                                                Member                         President,

                                                                     District Consumer Disputes

                                                                     Redressal Forum, Bhiwani.