1. Brief facts are that the complainant, Shri Satendra Kumar, sustained accidental fall at home on 14.06.2012, suffered fracture of right leg. He was admitted in Indraprastha Apollo Hospital (OP 1). Dr. Raju Vaishya (OP-2) operated him on 14.6.2012, and discharged him on 17.6.2012. Thereafter, in the year 2013, on 23.05.2013 complainant again met with an accident and suffered fracture of left leg. He was taken to OP-1 hospital, operated by OP 2 and discharged on 25.5.2013. It is alleged that complainant never recovered fully after surgery, since two years he is unable to walk freely for a long time. Both the surgeries were not successful. The complainant time and again felt late night pain. The rod inserted in right leg got bent in the year 2014. Therefore, on 9.4.2014, another operation was performed by Dr. U. K. Sadhoo at Saket City Hospital, New Delhi. Old rod from the right leg inserted by OP 1 was taken out and complainant was discharged from Saket City Hospital on 12.4.2014 in the stable condition. Again, since January, 2016, complainant is facing severe problem in left leg during walking even with the help of stick. He consulted OP-2 again and various Orthopaedic surgeons like Dr. Tandon at Apollo Hospital and other at ADIVA Super Specialty Care, but everyone suggested for re-operation of the left leg. On hearing such advice, the complainant broke down and lost the hope of better life. He was again operated in Saket City Hospital on 23.4.2016 by Dr. U. K. Sadhoo. The complainant being Chairman Managing Director of the company “Quadrant Engineering Plastic Products”, could not attend any work for four years because of repeated problems in both the legs. It caused great loss to his earning and his reputation in the market. Therefore, alleging medical negligence on the part of OP 1 and 2 , also both the opposite parties are making mockery of human life and unlawfully extracted money, the complainant filed this complaint and claimed total Rs. 1 crore towards compensation. 2. At admission stage, heard the learned counsel Mr. Manoj Kumar Garg, for the complainant. I sought certain clarifications from the counsel about the Pecuniary jurisdiction and the Cause of action in the instant case of alleged medical negligence. In the context of Cause of Action, the counsel vehemently submitted that it is a continuous cause from 17.6.2012 till 27.04.2016, it is clear from the facts mentioned in the complaint and the discharge summaries of OP-1 hospital and Saket City Hospital on file. Regarding Pecuniary jurisdiction, Counsel submitted that, the complainant is a Chairman and Managing Director of the company, he could not attend any work for four years. Therefore, he sustained huge loss of earning and his reputation in the market. On that basis complainant prayed for Rs. 1 crore from the OPs for medical negligence, towards medical expenses (operations), Rs. 20 lakhs, towards mental agony, harassment, Rs 55 lakhs and Rs. 35 lakhs towards loss of time, disruption of work, damage to reputation. 3. I have perused the four Discharge Summaries placed by the complainant on the record. History : “Patient is case of fracture shaft of femur (right) for which he was operated with ILN. Follow up shows non union of fracture with implant. Now he has been admitted for further management. Diagnosis : ‘Non-union fracture shaft of femur Right with implant in situ. The surgery performed was exchange nailing right femur (Synthes) with Bone grafting (type of Anesthesia – CSE). Patient was advised for continuous stick walking”. The 4th Discharge Summery (Annexure 4), dated 27.04.2016 from Saket City Hospital, revealed that the patient’s left leg was operated by Dr. U.K.Sadhoo, for implant removal, ORIF and Bone grafting on 23.04.2016.
4. After considering all the four discharge summaries, it clear that, complainant sustained fracture injuries to his Right leg and left leg in 2012 and 2013, respectively. On the both occasions, OP-2 operated him. Patient was discharged on 25.05.2013 in good condition. Thereafter, sometime in 2014, the patient approached Saket City Hospital wherein it was noticed bent of rod in the Right leg. It is pertinent to note that, Dr.U.K.Sadhoo diagnosed it as “non-union fracture shaft of right femur with implant” and patient was operated there. Also, after 2 years, patient’s left leg showed Non-union of fracture. It is clear from 4th Discharge Summery dated 27.4.2016; he was operated there with bone grafting. 5. Therefore, on the basis Discharge Summaries, Clinical and Surgical notes, the cause of action arose from 25.05.2013. It is not a continuous cause. After almost one year, he approached on 9.4.2014 to Saket City Hospital and took treatment. He was diagnosed as non-union of fracture. There is nothing on record to prove that patient was continuously suffering after 25.5.2013. Therefore, the complainant ought to have filed the complaint within two years from 25.05.2013. Accordingly, it is barred by limitation as under Section 24A of the Consumer Protection Act, 1986. This view dovetails from the judgment of Hon’ble Supreme Court in the V. N. Shrikhande (Dr.) vs. Anita Sena Fernandes IV (2010) CPJ 27 (SC). The observations from Para 14 and 18 are reproduced as below; “…… xxx… Section 24 A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I) (2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another (2009) 7 SCC 18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor's part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. 6. Even on merit, the “Non Union of fracture” is an accepted complication following fracture surgery. It is not medical negligence. Patient is 66 years of age, known case of CAD and HTN. Non-healing of facture depends on the health condition of the person, his age and so many other factors. As per medical text books like Campbell’s Orthopedics, Wastone Jones Fracture and Joint Injuries, the reasons for non-union are Avascular necrosis (the blood supply was interrupted by the fracture) the two ends are not apposed (that is, they are not next to each other) infection (particularly Osteomylitis) the fracture is not fixed (that is, the two ends are still mobile) soft-tissue imposition (there is muscle or ligament covering the broken ends and preventing them from touching each other) 7. From the medical record it is clear that, the OP-2 is qualified Orthopaedic surgeon. He performed close reduction and internal fixation by nailing on both fractured legs on different occasions (2012 and 2013) as per Standard procedure and practice. I do not find any deviation in the practice from OP-2. Bending of inserted rod in the long bone is not due to negligence of orthopaedic surgeon, thus blaming the OP-2 doctor is not acceptable. In Jacob Mathew’s Case (2005) 6 SCC 1, wherein it was observed by Hon’ble Supreme Court as under :-
“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, what to say of the average professional, sometimes have failures. A lawyer 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 submissions.” Similarly, In the case of Kusum Sharma Vs. Batra Hospital & others, the bench Hon’ble (2010) 3 SCC 480 by the bench comprising Hon’ble Justices Dalveer Bhandari and H S Bedi observed that, “Consumer Protection Act (CPA) should not be a "halter round the neck". Also discussed several principles to decide negligence, the relevant Para is reproduced as: “ xi. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”. 7. On the basis of foregoing discussion the complaint deserves to be dismissed at the admission stage, on the point of limitation as time barred and devoid of merit. Hence, complaint is dismissed. |
