Haryana

Ambala

CC/327/2019

Sanjay Kumar - Complainant(s)

Versus

Mahandiratta Hospital - Opp.Party(s)

Raman Kumar Sharma

21 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	327 of 2019
Date of Institution	:	11.10.2019
Date of decision	:	21.11.2022

Sanjay Kumar son of Sh. Madho Ram r/o H. no. 109, Parshuram Nagar, Ambala City.

          ……. Complainant.

                                                Versus

1. Mehandiratta Hospital, through Dr. R.K. Mehandiratta, M.B.B.S., D. Orth. M.S.  (Orth), Manali House, Near Prem Nagar, Ambala City.

 

2. Dr. R.K. Mehandiratta, M.B.B.S., D.Orth. M.S. (Orth), Manali House, Near Prem Nagar, Ambala City (Given up due to death report).

 

3. Dr. Mukesh Kumar, DNB (Orthopedic), Mehandiratta Hospital, Manali House, Near Prem Nagar, Ambala City.

 

4. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan, Jhandewalan Ext. New Delhi-110055, through its Error and Omission Medical Establishment of M/s Mehandiratta Hospital OP-1 vide Policy No. 272200/48/2019/7883 effective from 06.08.2018 to 05.08.2018

                                                                                   ….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Raman Kumar, Advocate, counsel for the complainant.

                    Shri S.S. Garg, Advocate, counsel for OPs No.1 and 3.

                    OP No.2 already given up.                                                                         Ms. Suraj Rashmi Sharma, Advocate, counsel for OP No.4.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

                   (i) To pay Rs.5,000,00/-, as compensation to the complainant.  

                (ii) To return Rs.70,000/- received by OPs No.1 to 3 for treatment       

             (ii) To pay Rs.55,000/-, as litigation expenses.

2.             Brief facts of the case are that the complainant had suffered injuries due to the skidding of motor cycle on the road on 13.10.2018, as a result of which, he was taken to the OP No.1 Hospital, where he was attended by Dr. Mukesh Kumar DNB (Orthopedic). On diagnose, the complainant was found with the following injuries:-

• Fracture of shaft former right leg.
• S/p TeNs CESING right leg
• Terumi.

          The complainant was surgically operated upon on 13.10.2018 and a NAIL was inserted in the right leg and was also plastered at the place of fracture. He was discharged on 17.10.2018 and was advised to visit the hospital after five days i.e. on 22.10.2018. On 22.10.2018 the complainant visited the hospital and complained of severe pain in his right leg after operation. The complainant was advised to visit the hospital on 27.10.2016. The complainant during this period continuously complained of pain in his right leg however, he bear the pain with the hope that the same would be relieved. The complainant was further advised to visit after fifteen days i.e. on 10.11.2018, but the pain in his right leg remained the same but every time, he was consoled that he will mitigate soon. During the period when he complained of the pain in his right leg, no X-ray was done by the OPs No.1 to 3. The complainant visited the Hospital, a number of times, with the complain of pain in his right leg but no steps were taken by OPs No.1 to 3 to relieve him from the pain.  When the complainant did not feel any relief, therefore he visited the Civil Hospital Ambala City on 25.2.2019 where the doctor-Vijay Kumar Bansal, (Ortho.) Civil Hospital, Ambala City saw the X-rays and advised "corrective surgery as fixing steel plates with screws on the broken bones" as there was delayed union of the broken portion and there was a gap between the both ends of the broken bone. Thereafter on 28.5.2019 the complainant visited Govt. Medical College Hospital, Chandigarh for the second opinion of the doctor, who told that there was no recovery and there was a major gap between both ends of the bone and that there was no change after the operation conducted by OPs No.1 to 3. The complainant, on 30.5.2019, visited Landmark Hospital, Chandigarh for diagnose and advise. While visiting the Landmark Hospital, the complainant carried all the record of treatment and X-ray and found that there was no change after operation conducted by OPs No.1 to 3 and the gap between both ends of fracture bone was the same and further told that the treatment given by OPs No.1 to 3 was not proper. The doctor of Landmark Hospital, Chandigarh conducted a fresh operation and removed the Nails wrongly inserted by OPs No.1 to 3 and fixed plates with the screws by joining the both ends of fractured tone after four hour's operation: and thereafter he was discharged on 3.6.2019. The complainant is still visiting the Landmark Hospital, Chandigarh and after the operation done by the doctors of Landmark Hospital, Chandigarh, the complainant is feeling alright. The OPs No.1 to 3 did not give proper treatment and also dealt with the case negligently and continued to advise the complainant to visit the hospital time and again.  Legal Notice was also served upon OPs No.1 to 3 on 3.7.2019 through his advocate, to pay compensation for medical negligence to the complainant but to no avail. Hence this complaint.

3.           Upon notice, the OPs No.1 and 3 appeared and filed written version and raised preliminary objections with regard to maintainability and cause of action etc.  On merits, while admitting the fact that treatment of nailing in the fractured bone of leg of the complainant was given to the complainant, it has been stated that OPs No.2 and 3 are well-qualified and reputed doctors, with substantial good will and experience of long standing successful medical practice. The complainant was a known case of bilateral poliotic limb. He sustained bad injury due to his own negligence who was riding as a pillion rider person with poliotic leg. He was also having bilateral deformed bones, including both femurs. The treatment option was explained to the patient & his attendant with pros and cons of each procedure. The treatment given to the patient for the deformed bone in poliotic limb with narrow medullary canal was adequate. The complication of non-union & malunion was expected to be high in such cases.  Delayed union is complication of poliotic limb & bone and no Doctor can guarantee 100% result. Every complication and recurrence is not negligence. Rest of the averments of the complainant were denied by OPs No.1 & 3 and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant had given up the OP No.2 through his statement recorded on 15.01.2020. Accordingly, he was given up vide order dated 15.01.2020 by this Commission.
5.           Upon notice, OP No.4 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and has suppressed true and material facts etc. On merits, it has been stated that OP No.4 is not liable to pay any claim, as OPs No.1 to 3 failed to intimate any claim within a period of 90 days from the date on which they had notice of litigation and as such there has been a blatant breach of the terms and conditions of the policy rendering the claim as inadmissible. The operation/surgery on the leg of the complainant was successfully completed with due diligence and care by the OPs No.1 to 3 as per settled medical procedures and due course was followed afterwards, for recovery of the complainant. Proper advices were tendered to the complainant alongwith regular follow ups to the hospital. The complainant has averred that the doctors at Civil Hospital advised corrective surgery as fixing steel plates with screws on the broken bones, whereas, no averment has been made where the doctor at Civil Hospital enunciated that there has been any negligence or any deficiency in service on the part of OPs No.1 to 3. The negligence if any was on the part of the complainant himself who miserably failed to follow the precautions after the surgery requiring complete bed rest. There has been no such evidence adduced by the complainant which shows that the doctors at Landmark Hospital Chandigarh stated that there was negligence on the part of OPs No.1 to 3. The complainant himself created the alleged post operation complications, if any, by visiting numerous hospitals and seeking medical opinions from various doctors. It is this conduct of the complainant which led him to believe and comprehend that there was negligence on the part of OPs No.1 to 3. Rest of the averments of the complainant were denied by the OPs No.4 prayed for dismissal of the present complaint with costs.
6.            Learned counsel for the complainant tendered affidavit of complainant as Annexure C-1 alongwith documents as Annexure CA to CT and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs No.1 and 3 tendered affidavit of Dr.Mukesh Kumar of OP-Hospital-Mehandiratta Hospital as Annexure RW1/A alongwith documents as Annexure R-1 to R-4 colly. and closed the evidence on behalf of OPs No.1 and 3. Learned counsel for OP No.4 tendered affidavit of Ashish Bhatnagar, Divisional Manager, Divisional Office Oriental Insurance Company, Ambala Cantt. as Annexure RW4/A alongwith documents as Annexure RA-OP-4/A to RC OP-4/C and closed the evidence on behalf of OP No.4.
7.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1,3 & 4 and carefully gone through the case file and also gone through the written arguments filed by the complainant.

8.           Learned counsel for the complainant submitted that OPs No.1 to 3 were negligent in providing treatment to the complainant,  because instead of  fixing plates on the fractured bone of the complainant, a wrong treatment of inserting nail in the said fractured bone was given, which resulted into lot of physical pain, harassment and financial loss to the complainant and it was only after getting the right treatment from Landmark Hospital, that the complainant get rid out  of the immense pain, suffered by him, at the hands of OPs No.1 to 3. In support of his contention, the learned counsel for the complainant has placed reliance on the judgment of the Hon’ble Supreme Court of India, New Delhi, in the case of V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., Vol. III, (2010) CPJ 1 (SC) and also on the judgment dated 01.11.2012, passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Pragathi Hospitals and Anr. Vs. Kumari Shirisha Madhuri and Ors.
9.           On the other hand, learned counsel for OPs No.1 and 3 submitted that the OPs No.1 to 3 had given treatment to the complainant, as per the medical norms.  As per the literature even falls and subsequent fractures are common in poliomyelitis patients, which are difficult to manage and cause considerable morbidity and since the complainant was also suffering from polio, as such, his fractured bone might not have respond, as of a common man. No evidence has been placed on record by the complainant to prove that there was any medical negligence on the part of the OPs No.1 to 3.  In support of his contention, the learned counsel for the OPs No.1 and 3 has placed reliance on the judgment passed by the Hon’ble Apex Court in the case of Dr. Harish Kumar Khurana Vs. Joginder Singh & Others, 14 (2021) SCC Online SC 673.
10.           Learned counsel for OP No.4 submitted that no claim is payable by it, as OPs No.1 to 3 failed to file any claim within 90 days of filing complaint by the complainant. She further submitted that no evidence has been placed on record by the complainant to prove that there was any medical negligence on the part of OPs No.1 to 3.
11.           The only short question which falls for consideration in this case is, as to whether, OPs No.1 and 3 could be held to be negligent in adopting one of the procedures of inserting the nail in the fractured bone of right leg of the complainant, instead of fixing plates with screw to join both ends of the said fractured bone or not? It may be stated here that it is not in dispute that the leg of the complainant, which suffered fracture due to accident was suffering from  bilateral poliotic limb. It is significant to mention here that we have gone through the literature-“Comprehensive review of challenges associated with management of lower limb fractures in poliomyelitis patients”, Annexure R-3 colly. which has been endorsed by the expert Doctors of Department of Orthopedics, PGIMER, Dr.Ram Manohar Lohia Hospital, New Delhi and found that it has been  clearly mentioned therein that  “Falls and subsequent fractures are common in poliomyelitis patients, which are difficult to manage and cause considerable morbidity”. It has been further mentioned therein that there is limited published literature pertaining to fractures and their management in polio patients and no such review article to address such injuries; that it is difficult to achieve pre-injury ambulatory status in these patients after fracture; that fracture fixation in polio patients is a challenging job as the bones of the affected limb are often hypoplastic, deformed, osteoporotic, together with paralyzed and less vascularized muscle envelope. It is further significant to note that in this literature, two lines of treatment in respect of fracture of bone of a polio patient has been given. However, the first line of treatment has been mentioned as inserting of intramedullary nails in the fractured bones; and second is locking plates.
12.           Thus, in our considered opinion, if OPs No.1 to 3 who have admittedly adopted the first line of treatment of inserting the intramedullary nails  in the fractured bone of  leg of the complainant, which was done in accordance with the medical literature referred to above, it cannot be said that there was any medical negligence on their part. However, unfortunately, if the said procedure of inserting the intramedullary nails was not successful and the complainant had to get  fixed plates with screws for joining the said fractured bone at Land Mark Hospital, Chandigarh, in that event also we cannot hold that OPs No.1 to 3 were negligent because we cannot ignore the contents of the literature referred to above,  to the effect that falls and subsequent fractures are common in poliomyelitis patients, which are difficult to manage and cause considerable morbidity; that it is difficult to achieve pre-injury ambulatory status in these patients after fracture; and that fracture fixation in polio patients is a challenging job as the bones of the affected limb are often hypoplastic, deformed, osteoporotic, together with paralyzed and less vascularized muscle envelope.
13.           At the same time, the complainant had led no evidence  of experts to prove the alleged medical negligence on the part of OPs No.1 to 3 except his own affidavit. The experts could have proved if any of the doctors in the OPs Hospital providing treatment to the complainant were deficient or negligent in service or they adopted wrong line of treatment. A perusal of the medical record produced in respect of the OPs Hospital, which is in line with the literature, does not show any omission in the manner of treatment. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures. In the case of Dr. Harish Kumar Khurana v. Joginder Singh & Others (Supra), the Hon’ble Supreme Court has held as under:-   

“11. …….. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. The learned counsel has also referred to the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent. xxx xxx xxx 14. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence…..”

 

14.           In Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, also, it was clearly held that a doctor cannot  be held as guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. 
15.           In view of peculiar facts and circumstances of this case, we are of the considered view that the complainant has failed to prove any medical negligence on the part of OPs No.1 to 3 and any deficiency in service on the part of OP No.4. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.        

 

Announced:- 21.11.2022.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President