Haryana

Yamunanagar

CC/984/2011

Gian Chand S/o Panna Lal - Complainant(s)

Versus

Goel Hospital - Opp.Party(s)

Mukesh garg

08 Jan 2015

ORDER

ORDER

 

                        Brief facts leading to the institution of the present complaint are that the complainant met with an accident on 20.9.2010 and sustained bodily injuries upon his right arm & elbow resulting into fracture of the same and thus he contacted OP No.2 for his medical treatment who advised an operation and assured that after conducting operation, complainant would be OK and accordingly as per assurance of Op No.2, the complainant got himself admitted in the hospital i.e. OP No.1 and OP No.2 started his medical treatment and he was duly operated by OP No.2. The complainant remained admitted in the hospital from 20.9.2010 to 29.9.2010 and at the time of discharge, the OP No.2 assured that the operation remained successful and advised him to get the post operation treatment regularly. OP No.2 doctor fixed the nails to cure the right arm & elbow of the complainant and the complainant paid an amount of Rs. 50,000/- to the OP pertaining to medical treatment and operation charges. It has been further alleged in the complaint that as per advise of OP doctor, the complainant continuously visited the hospital for post operation medical treatment and all the times complaint was made to Op No.2 with regard to the stiffness in the right arm & elbow which was not working freely and the complainant was not in a position to move the said right arm elbow in straight way and there was also regular pain after the operation in the said right arm & elbow and this fact was brought to the notice of OP No.2 who conducted the X-ray on 22.2.2011, 6.5.2011 and 18.7.2011 which proves that the said right arm and elbow was not working properly, having stiffness and found in bend condition but inspite of that the OP doctor was not able to cure the complainant and as such there is a gross negligence in the medical treatment given by the OP doctor.  Moreover, the OP doctor did not give the medical treatment as per medical norms, guidelines and jurisprudence, due to which the complainant is suffering mental agony, harassment as well as financial losses. In the end, complainant has prayed for issuing a direction to the OPs to  pay a sum of Rs. 50,000/- duly charged by the OP doctor towards operation charges, medicines and special diets etc. and also to pay compensation and damages to the tune of Rs. 2,00,000/- due to the negligent act and deficient services rendered to the complainant and also to pay a sum of Rs. 11000/- towards legal and incidental charges.  

2.                     Upon notice, OPs appeared and filed their written statement separately. OPs No.1& 2 filed written statement jointly and raised preliminary objections that the present complaint is wholly misconceived, groundless, false, frivolous, vexatious and scurrilous which is not sustainable in the eyes of law as the same is cooked up and has been filed without justified reason/cause against the OPs just to harass, defame and extort money from them. No specific and justified allegations with regard to negligence or deficiency in providing services, has been made by the complainant against the answering OPs and the complainant has totally failed to explain as to how the OP was negligent, hence the complaint being based on non specific, unscientific and laymen conjectures & surmises, is liable to be dismissed.  This complaint is bad for non joinder and mis-joinder of necessary parties as the OP is insured with United India Insurance Company ltd. 54^th Janpath, Connaught Place, New Delhi through its professional indemnity policy No. 040100/46/10/35/00001036 effective from 27.5.2010 to 26.5.2011.  Therefore, the insurer is a necessary party in the complaint and the same is liable to be dismissed on this score alone. On merits, it has been urged that the answering OP is a qualified and reputed doctor (Orthopaedic Surgeon) having qualifications MBBS, M.S. (Orthopaedic Surgery) duly registered/ licensed with State Branch of Medical Council of India. The answering OP passed MBBS in 1979 and then passed M.S.(Orthopaedic) in 1983 from Medical College Rohtak and had worked as Orthopaedic Surgeon in Civil Hospital, Yamuna Nagar for eight years between 1983 to 1990 and at present is having experience of 28 years after passing his post graduation in the concerned fraternity of medical science and he had not only been treating these types of cases ( case in question of complainant) but had also been managing and treating more serious cases. The patient was got admitted on 20.9.2010 in emergency in the hospital of answering OP. He was advised operation of his right elbow and accordingly as per the need of the situation and the ailment, surgical line of treatment in form of operation with fixation of fracture site with help of Intra Medullary Nails & K-wires was decided and advised to the complainant that all pros and cons alongwith possible alternative line of treatments and prognosis were discussed/explained to the complainant & his attendant Sh. Raj Kumar. After getting verbal consent from the complainant and his attendant Raj Kumar about to opt for surgical treatment mentioned above, a well informed written consent was got signed from the patient/complainant & his attendant Raj Kumar. Thereafter patient was hospitalized and routine investigations, necessary prior to PAC (Pre-Anaesthetic Clearnace), were performed. Dr. K.C. Garg ( Anaesthesioligist ) made PAC and gave Anaesthesia to the patient when the desired surgical procedure was performed by the OP in his hospital’s well equipped/properly sterilized operation theatre, on dated 21.9.2010 and wound debridement fixation of fracture both bone forearm with intra medullary nails and fixation of fracture of lower end humerus with K-wires and repair of Ulnar nerve and extensor muscles were done. The requisite medications were given to the patient throughout the period of hospitalization, while all medications were brought by the complainant himself from the Chemist Shop. The patient had no post operative complications and was discharged on dated 29.9.2010 to be followed later on as OPD patient. Patient was handed over the discharge ticket and all X-ray Films and requisite medicines were prescribed over it which were supposed to be taken by the patient at home. It was also declared by the complainant in writing and signed by him that “he was fully satisfied with the service provided at hospital as the treatment was carried out satisfactorily”.  The diagnosis of disease and institution of particular line of treatment or medicine to be used under a particular set of circumstances and prevailing conditions and also any error of judgment either in diagnosis or treatment, if any, can not be termed as negligence on the part of the OP treating doctor. The complainant was x-rayed and routine blood investigations were done and was diagnosed as a case of # side sweep injury right forearm and elbow. In detail, he had fracture of both bones forearm (compound and comminuted) with supra condylar fracture lower end of humerus with ulnar  nerve injury with cutting of extensor muscles of right forearm. There was a lacerated wound of size 15” x 5” over the posterior aspect of right elbow and forearms through which the broken pieces of bone were coming out. This fact finds mentioned in the MLR issued by Civil Hospital, Sadhaura. The patient was got admitted on 20.9.2010 in emergency in the hospital of OP and was advised operation of his right elbow and accordingly as per need of situation and the ailment surgical line of treatment in form of operation with fixation of fracture site with help of intra modullary nails and K-wires was decided and advised to the complainant.   That no damage, disability/deformity resulted to the complainant in this case rather the complainant failed to submit any evidence/certificate in this regard and to support his allegations which he has made against the OP in this complaint.  No specific, scientific and justified allegation in regard to negligence or deficiency in providing services, has been made by the complainant against the OP doctor and the complainant has totally failed to explain the vital questions, like “As to how the respondent/OP was negligent? At which/what stage of treatment the OP was negligent.? What the OP was supposed to do, which he did not do? What the OP was not supposed to do? What he did. What were other lines of treatment? Hence this complaint is based on non specific, unscientific, untrue and layman conjectures & surmises and is liable to be dismissed.

3.                     OP No.3 filed written statement wherein it was admitted that the OP No.2 Dr. Mahavir Goel, Goel Hospital Sawanpuri, Yamuna Nagar Road, Jagadhri, District Yamuna Nagar was insured with the answering OP during the period from 27.5.2010 to 26.5.2011  when the patient Gian Chand was treated by Op No.2 on 20.9.2010 and the standard terms and conditions with its exclusion clause of the policy are applicable in the present case and answering OP accepts the written statement of OP No.2 in totality and the same be considered as its written statement. It has been prayed that the complainant is not entitled to get any alleged amount of compensation in view of the above facts and circumstances of the case.

4.                     To prove his case, counsel for the complainant has tendered into evidence affidavit of complainant as Annexure CX and documents as Annexures C-1 to C-25 and closed evidence on behalf of complainant whereas on the other hand, counsel for OPs No.1& 2 has tendered affidavit of OP No.2 as Annexure RX, and documents as Annexures R-1 to R-13 and closed the evidence on their behalf. Counsel for OP No.3 also tendered affidavit of Shri Om Parkash Sr. Divisional Manager as Annexure R3/X and documents as Annexure R3/1 and closed the evidence on behalf of OP No.3.

5.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file. Learned counsel for the complainant argued that the OP doctor had operated to complainant and he remained admitted in hospital from 20.9.2010 to 29.9.2010 and was told at the time of discharge that the operation was successful and advised him to get the post operation treatment regularly.  As per advise of OP doctor he continuously visited the Hospital for post operation  medical treatment and all the times he made complaint to OP No.2 with regard to the stiffness in the right arm and elbow which was not working freely and the complainant was not in a position to open the said right arm elbow in straightway and there was regular pain after the operation in the said right arm and elbow. OP No.2 conducted the X-rays on 22.2.2011, 06.05.2011 and 18.7.2011 which proves that the said right arm and elbow is not working in proper way, having stiffness and found in bend condition but inspite of that the OP doctor was not able to cure the complainant and as such there is a gross negligence in the medical treatment given by OP doctor.

6.                     On the other hand, counsel for OPs No.1&2 argued that the patient was properly examined, investigated, diagnosed and treated by the treating doctor as per prescribed norms of medical practice which are mentioned in the text books and journals of the subject concerned without deviating from the normal prescribed line of treatment. Moreover, the complainant has also failed to explain as to how the treating doctor was negligent, at which/what stage of treatment? What the OP was supposed to do which he did not do? What the OP was not supposed to do, what he did. What were other lines of treatment? and has drawn the attention of this Forum towards the case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as G. Ravender Rao & Others Versus Ghulam Dastagir & Others, 2013 (1) CLT page 594, wherein it has been held that “the appellants, who are well qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well equipped laboratory-Held, there is no medical negligence or deficiency in service in the treatment of patient.

                        Learned counsel for OPs No.1& 2 further relied upon the judgment delivered by the National Commission in consumer case titled as Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, IV (2007) CPJ page 64 (NC) wherein it has been held that “Treatment given contrary to established medical norms not proved-Expert evidence or medical literature in support of allegations not produced on record-Complaint dismissed-Appeal against order dismissed. Learned counsel for the OPs No.1& 2 further relied upon the judgment delivered by the Hon’ble Supreme Court in case titled as Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, 1(2010) CPJ page 29 (SC) wherein it has been held that doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence-Medical negligence not proved in view of settled principles of medical negligence. No relief entitled. Learned counsel for the OPs No.1&2 further relied upon the case law titled as V. Bhavani Vs. Dr. S.Siva Subramaniam, 1(2013) CPJ page 584 (NC) wherein it has been held that respondent, a well qualified doctor, used his best professional judgment and required medical skills to diagnose appellant’s illness and thereafter conducted required surgery and also took due post operative care, including referring her to higher medical institution when it was considered necessary-Negligence not proved. Learned counsel for OPs No.1&2 further relied upon another case law titled as N. Krishna Reddy Vs. Christian Medical College & Hospital, 2007 (2) CPR page 260 (NC) wherein it has been held that “Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the hospital and doctors”.

7.                     From the facts narrated above, it is established that the complainant has failed to prove medical negligence on the part of OP No.2 doctor qua his treatment/ operation of his right arm & elbow by tendering any documentary evidence or expert opinion in support of his case whereas the specific burden to prove or show “As to what should have been done by the OP doctor which was not done or what was done, which should not have been done” was upon the complainant”.   Besides it, from the perusal of document Annexure R-6 tendered by OPs No.1 & 2 in their evidence, it is proved that the complainant was fully satisfied with the services provided by OP hospital at the time of discharge. So, in these circumstances, we are unable to hold that OP No.2 was ever negligent or deficient in providing proper medical services to the complainant as alleged in the complaint. Further, the authorities G. Ravender Rao & Others Versus Ghulam Dastagir & Others, Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, Kusam Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, V. Bhavani Vs. Dr. S.Siva Subramaniam and N. Krishna Reddy Vs. Christian Medical College & Hospital, (supra) tendered by counsel for OPs No.1 & 2 are fully applicable in the present case. Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance. 

Announced: 08/01/2015