DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 493 of 27-10-2010

Decided on : 15-07-2011

Angrej Singh aged about 32 years S/o Jeet Singh R/o Village Desu Jodha, Tehsil Dabwali, District Sirsa (Haryana).

Versus

1. Gurdev Hospital, through its Proprietor Dr. Gurdev Singh, Near Nrankari Bhawan, Ganesha Basti, G.T. Road, Bathinda.

2. The New India Assurance Company Limited, Grover Building, Near Post Office Chowk, Malout, District Mukatsar.

..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Angrej Singh, counsel for the complainant.

For the Opposite parties : Sh. Sandeep Baghla, counsel for the opposite party No. 1.

Sh. Sunder Gupta, counsel for opposite

party No. 2.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that he was brought for medical treatment to opposite party No. 1 by his family members as his right leg was injured from the upper side in the accident. After charging admission fee and examining the complainant, the opposite party No. 1 told him that his right acetabulum has got fractured. After admitting the complainant in the hospital, the party No. 1 alongwith other treatment started giving a skin traction to his left leg instead of right leg. The complainant was suffering from continuous pain in his right leg, but the opposite did not care. When the complainant, his brother Veer Singh and other family members asked the opposite party No. 1 about the traction put to left leg instead of right leg, he replied that he is a doctor and he knew what has to be done. The opposite party No. 1 got signed some blank papers from the complainant, his brother Veer Singh and family. The opposite party No. 1 discharged the complainant from his hospital on 02-05-2009 after charging due bills and prescribed some medicines and advised rest at home. The opposite party No. 1 asked the complainant to visit him again after 21 days and accordingly complainant visited him on 23-05-2009 and told him that problem was still increasing despite following instructions of opposite party No. 1. The complainant again went to opposite party No. 1 on 9-6-2010 as per his advice for check-up, but the opposite party with malafide intention on the prescription slip that the patient was not brought to him on that day. The condition of the right leg of the complainant became worst and ultimately be came permanently handicapped on account of negligent wrong and poor treatment of opposite party No. 1 as his right leg has became shortened in length, thinner and weakened than before and handicapped medical certificate of 40% disability has been issued to him by the competent authorised doctors on 4-8-2010. The complainant was a young healthy person but today his health condition has become very poor as he is unable to stand or bend or sit or even work properly for a long time due to above said disability. The complainant has brought the said matter in the knowledge of opposite party No 1 and despite his repeated requests, he has not compensated the complainant. Hence, he has filed the present complaint.

2. The opposite party No. 1 has filed separate written reply and pleaded that complainant had approached opposite party No. 1 on 26-04-2009 complaining of pain in the pelvic region with a history of fall on the flooring tile. After clinical examination, the complainant was referred for X-ray of pelvic region. The X-ray showed fracture in the right acetabulum and there was also a wound over the left ilium. The opposite party No. 1 advised the complainant for skin traction or surgery for the treatment of the said fracture. The complainant and his attendants were reluctant for surgery and accordingly, he and his brother Veer Singh had consented for the skin traction. The skin traction was attached to the right leg of the complainant. The complainant was also given antibiotic injection Tapic 4.5 gm IV 12 hourly and injection Amikacin 500 mg 12 hourly and the complainant was continued with the traction and the same treatment followed upto 2-5-2009 and he was discharged in satisfactory condition. He was advised bed rest as it was required for curing the said fracture and injury. The complainant was also advised Tab. Calvinate Forte and B-Complex for the healing of the fracture. The complainant visited the opposite party No. 1 on 8-5-2009 complaining of pain and opposite party No. 1 added the Tab. Diclofenac with Tizanidine for the pain relief and relaxation of muscle and tramadol (paracetamol). On 23-05-2009, the complainant visited the opposite party No. 1 by walking and opposite party No. 1 specifically mentioned on the prescription slip that he was not following the bed rest and was advised for CT Scan. On 9-6-2009, the complainant did not visit the opposite party No. 1 but his relatives came and complained of pain and accordingly, opposite party No. 1 advised the medicine to the relative of the complainant. The opposite party No. 1 had treated the complainant conservatively in accordance with the medical norms. It has been pleaded that after 9-6-2009, the complainant alongwith a few mischievous elements had approached opposite party No. 1 on 15-6-2009 and had tried to create nuisance and disturb the atmosphere at the hospital on the pretext that his pain was not subsiding and with an intention to blackmail the opposite party No. 1. The opposite party No. 1 had duly explained that the treatment given by him is correct and as per accepted medical norms and the pain was suffered by the complainant due to not following the instructions of bed rest and he had also admitted the same. Accordingly, with the intervention of respectables, the matter was unanimously resolved and the complainant voluntarily vide affidvit dated 15-06-2009 had duly acknowledged his own fault in not following the instructions of opposite party No. 1. Now, the complainant after a lapse of about 1-1/2 year by concealing these material and record has filed the present complaint. The opposite party No. 1 has further pleaded that he had attached the skin traction to the right leg and not to the left leg. He denied that any blank papers were got signed from the complainant or his attendants. The opposite party No. 1 has pleaded that he has performed his duty as a medical practitioner with due diligence, reasonable and proper care, skill and as per the experience available with him. He has adopted standard and accepted medical procedure to treat and cure the complainant in the circumstances. He is MS (Orthopaedic) and has performed numerous Orthopaedic cases and surgeries within his vast experience of 19 years to the utter satisfaction of the patients.

3. The opposite party No. 2 in its separate written reply pleaded that Doctor Professional Indemnity Policy No. 360603/36/2008/34/00000093 effective from 20-12-2008 to 19-10-2009 issued to opposite party No. 1 is a contract of insurance to indemnify the insured regarding the legal liability/award/order. The opposite party No. 2 has taken objection that complaint should not be entertained unless the complainant produces prima facie evidence and in this regard, he has taken support of law laid down by the Hon'ble Supreme in the case Jacob Mathew Vs. State of Punjab decided on 5-8-2005. Although Insurance Company is not liable to pay any compensation to the complainant nor opposite party No. 1 has caused any negligence in treatment of the complainant, yet if this Forum comes to the conclusion that the opposite party No. 1 is liable in any manner, then liability of opposite party No. 2 to indemnify the insured for any one year is Rs. 15.00 Lacs and for any one accident is Rs. 5,00,000/- less compulsory excess clause.

4. Parties have led evidence in support of their pleadings.

5. Arguments heard and written submissions submitted by the parties perused.

6. These are undisputed facts between the parties that complainant met with an accident and due to severe pain in his leg, his relative brought him to opposite party No. 1. The opposite party No. 1 referred him for X-ray. The X-ray showed fracture in the right acetabulum and there was also a wound over the left ilium.

7. The learned counsel for the complainant argued that complainant was suffering from pain to his right leg whereas the opposite party No. 1 started skin traction to the left leg. The complainant remained in the hospital of opposite party No. 1 from 26-04-2009 till 2-5-2009 and thereafter also despite repeated visits of the complainant to the opposite party No. 1 and following his instructions, his pain did not subsidize. Due to wrong and negligent treatment of opposite party No. 1, the complainant has become handicapped and a medical certificate of 40% disability has been issued to the complainant by competent authorised doctors.

8. On the other hand, the learned counsel for opposite party No. 1 submitted that when the complainant approached him on 26-4-2009 with complaint of pain in pelvic region, he was referred for X-ray of pelvic region. The X-ray showed fracture in the right acetabulum and a wound over the left ilium. The opposite party No. 1 advised the complainant for skin traction or surgery for the treatment of the said fracture. The complainant and his attendants were interested to get cured the problem with conservative treatment. The consent letter has been duly signed by the brother of the complainant namely Veer Singh which has been produced by the complainant himself vide Ex. C-4 on the file. The complainant has not followed the instructions given by the complainant and did not take complete bed rest due to which his pain did not subsidize and this fact has been admitted by the complainant vide Ex. R-6, original of which has been produced by him before this Forum. As no surgery was performed by opposite party No. 1, there was no question of shortening of leg as alleged by the complainant.

9. A perusal of Ex. C-3 Indoor file of opposite party No. 1 shows admission of the complainant on 26-04-2009 and date of discharge as 2-5-2009. Ex. C-5 is the consent form signed by Veer Singh, brother of the complainant for getting treatment from opposite party No. 1. A perusal Ex. C-2 prescription slip dated 2/5/2009 reveals that at the back of this slip against the date 23/5/2009 a remark has been given “Non compliance..” and against the date 9/6 it has been mentioned “Pt not brought”. The complainant has alleged that due to the negligent treatment of opposite party No. 1, the complainant has become handicapped and for this, he has referred disability certificate Ex. C-29. A perusal of Ex. C-29 reveals that on 7-10-2009 a Handicapped Medical Certificate of the complainant has been signed by Orthopaedic Surgeon, Civil Hospital, Bathinda, but above the signatures a Note has been given “Case of Injury (R) hip dated 26 April, 2009. X-ray shows - #Acetabulum ® with union in progress – Physiotherapy – Back after six months”. However at the corner of this certificate a note has also been given while overwriting the printed matter to the effect “.......disability is forty percent 40%”, but this note bears no stamp.. Hence, this certificate cannot be relied upon.

10. On the other hand, the version of the opposite party No. 1 is that since the attendants of the complainant were reluctant for surgery, the conservative treatment was given to him but due to his own negligence in not following the instructions i.e. not taking bed rest, his pain continued. A perusal of record reveals that prior to this complaint, the complainant had no complaint with regard to the treatment or during the period he remained admitted with the opposite party No. 1. The pain in his leg remained continue as he did not take bed rest and this fact has been admitted by him vide his affidavit Ex. R-6, the original of which has been produced before this Forum and marked as “Annexure 'A”. The English version of the said affidavit is reproduced as under :-

    “I, Angrej Singh S/o Jeet Singh R/o Village Desu Jodha , Tehsil Dabwali, District Sirsa (Haryana), hereby give my affidavit as under :-

    1. That on 26-04-2009 I suffered fracture in the acetabulum the treatment of which was taken by me from Dr. Gurdev Singh Hospital, Bathinda and doctor had advised me for bed rest.

    2. That due to not taking rest, my acetabulum, started paining so , I visited another doctor who gave me wrong advise that the treatment given to me was not proper. I met Dr. Gurdev Singh and he apprised me that proper treatment has been given to me but the pain started due to not taking bed rest.

    3. That my acetabulum, is paining due to not taking rest and there is no negligence of Dr. Gurdev Singh.”

    The said affidavit has been duly attested by Sh. Vijay Kumar, Advocate & Notary. The said Sh. Vijay Kumar has also furnished affidavit Ex. R-5 in this regard which reads as under :-

    “.....That on 15-06-2009 Angrej Singh son of Jeet Singh resident of V. Desu Jodha had come present before the deponent alongwith Gursewak Singh son of Ajaib Singh, Jasbir Singh son of Darshan Singh and Daljit Singh son of Lachman Singh and had brought an affidavit suffered by Angrej Singh. The contents of the affidavit were read over and explained by the deponent to Angrej Singh in presence of aforesaid persons and Angrej Singh after admitting the contents of the affidavit to be true and correct had signed the affidavit in presence of the deponent as well as in presence of aforesaid witnesses. Angrej Singh was identified by Jasvir Singh son of Darshan Singh.

    3. The deponent had also endorsed his stamp and signatures on the affidavit attesting the execution of the said affidavit by Angrej Singh. The said attestation of affidavit was also entered at Sr. No. 1041 in the register maintained by the deponent and the said entry was also signed by Angrej Singh”

    The photocopy of aforesaid register has been produced on file as Ex. R-5. The complainant has not mentioned about this affidavit in his complaint as well as in his any document. The complainant has not produced on file any expert evidence to prove that the treatment given by opposite party No. 1 was against medical ethics whereas opposite party No. 1 has produced on file affidavits of Dr. Kailash Goyal, M.S. (Orthopedic), DM, Bone & Joint Hospital, Bathinda and Dr. Amrit Gupta, M.S. (Orthopedic), Gupta Hospital, Power House Road, Bathinda Ex. R-7 & Ex. R-8 respectively wherein they have deposed that in case of fracture in the acetabulum, there are 2 recognised procedures for the curing of the same as per medical norms i.e. skin traction and surgery. The skin traction is the conservative and effective mode of treatment in case of fracture to acetabulum but for the recovery and the healing of the fracture it is required that the patient should take permanent bed rest for a period of atleast 60 days and in case if the patient ignores to follow the instruction of the bed rest, then the process of recovery and healing of the fracture prolongs and may even add to further complication. They have also deposed that in the present case, as per medical record perused by them, the patient Angrej Singh had not followed the instructions of opposite party, Dr. Gurdev Singh for taking bed rest and in such like circumstances the fault lies with the patient and is himself negligent for not following the instructions of the treating doctor. The complainant is relying on disability certificate Ex. C-29 which is invalid in the eyes of law in the absence of any stamp. Moreover, the complainant has not followed the instructions and did not take bed rest, hence the problem, if any, from which he is suffering is due to his own fault and opposite party No. 1, who is a qualified person in this field, cannot be blamed for that as he himself has admitted vide his aforesaid affidavit that he has not taken bed rest. The support can be sought from the observations of the Hon'ble National Commission, New Delhi in the cases :-

    i) 2010 (1) CPR 49(NC) Suresh Jain Vs. Dr. Mukesh Jain and Others wherein it has been held :-

    “Doctors cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors”.

    ii) 2009 (2) CPR 295 (NC) Master Nitish Sethi & Ors., Vs. Dr. Naresh Trehan & Ors. Wherein it has been held :-

    “Allegation that heart massage was done by untrained and unqualified doctors was unsubstantiated by any material on record – Ops rendered treatment based on known medical text procedures – Allegations made by complainant were not substantiated by any evidence – Mere allegations apprehensions, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to be conclude that there is deficiency in service or negligence on part of opposite parties – No deficiency in service or negligence found on part of opposite parties – complaint having no merit, dismissed”

    The Hon'ble Supreme Court has made the matter crystal clear and settled the law in the following titled cases :-

    (i) Titled 2009(1) CPR 231 (SC) Martin F. D'Souza Vs. Mohd. Ishfaq :-

    “....(ii) Medical Negligence – 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.”

(ii) Titled 2010(2) RCR (Civil) 161 Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others – wherein it has been held that :-

“......7. 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.”

(iii) Titled 2005(3) RCR (Criminal) 836 Jacob Mathew Vs. State of Punjab & Anr., wherein it has been held :-

“ ....(3) No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the

 

 

professional reputation of the person is at stake.

(4) A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”

11. The objection taken by the learned counsel for opposite parties that before issuing any notice to doctor for medical negligence, an expert opinion is required, is devoid of merit in view of the law laid down by Hon'ble Supreme Court in case titled V. Kishan Rao Versus Nikhil Super Speciality Hospital & Another Civil Appeal No.2641 of 2010 (Arising out of SLP (C) No.15084/2009) D/d 08.03.2010 RCR (2) 2010 wherein it has been held:-

“(A) Consumer Protection Act, 1986, Sections 23 and 3 – Medical negligence – Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of doctor – It is not required to have expert evidence in all cases of Medical negligence.

(H)(i) An expert witness in a given case normally discharges two functions – The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man – The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence.

(H)(ii) In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. (1988) 2 SCC 602,(1990) 3 SCC 682 relied”

12. With utmost regard and humility to the authorities relied upon by the complainant, they are distinguishable on facts.

13. Thus, keeping in view the facts, circumstances and the record produced on file by the parties, this Forum is of the considered view that the opposite party No. 1 has acted in accordance with practice accepted as per proper by responsible body of medical man skilled in that particular art while treating the complainant. Hence, complainant has failed to establish medical negligence/deficiency in service on the part of opposite parties. Accordingly complaint being devoid of merits, is dismissed. Parties are left to bear their own costs.

14. A copy of this order be sent to the parties concerned free of cost

and the file be consigned to record.

Pronounced :

15-07-2011 (Vikramjit Kaur Soni)

President

( Amarjeet Paul)

Member