The present consumer complaint was first put-up before the Forum for statutory adjudication as CC # 430/2015 and was partly allowed on 08.12.2016 ordering the opposite party 1 and 2 (Orthopedic Surgeon and Treating Hospital) to pay Rs.3,00,000/- each to the complainant as compensation besides to pay him Rs. 5,000/- each as cost of litigation. Having felt aggrieved, both the opposite parties preferred appeal # 169 of 2017 before the honorable State Consumer Commission, Chandigarh; who did allow the appeal by setting aside the forum’s impugned orders and remanded the complaint back for deciding it afresh in the light of the additional evidence as sought out to be produced by the litigants and the said order was reaffirmed by our ld. predecessor vide order dated Ist June, 2018 and both the opposite parties again preferred appeal no.500 of 2018 before the Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, who remanded the present complaint with the directions to the parties through their counsels to appear before the District Commission on 22.12.2020.

2.       Deepak Kumar complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to make the payment of Rs.8,00,000/- as compensation on account of mental tension, physical agony, harassment and suffering from acute pain etc. Opposite parties be further directed to pay Rs.2,69,790/- being spent by him on his treatment, due to the sheer negligence of the opposite parties alongwith Rs.20,000/- as litigation expenses, in the interest of justice.

3.      The case of the complainant in brief is that he is skilled mechanic of ATM machines. Unfortunately he met with road accident on 2.2.2015 at Pathankot and his two bones of right leg were fractured. He was shifted to the opposite party no.1 Hospital by his parents. Thereafter the opposite party no.2 who is serving as M.B.B.S. M.S. (Ortho) in the Hospital of the opposite party no.1 made thorough check up and thereafter opposite party no.2 told his parents that for providing proper treatment to him, there is need of insertion of Steel Road in his right leg and for this purpose, he has to undergo for operation. He further told that he would charge a sum of Rs.60,000/- from them and after the said operation the patient will become perfectly well. They deposited Rs.60,000/- with the opposite parties and opposite party conducted the operation on 3.2.2015 and complainant was discharged on 5.2.2015 from the hospital. After the insertion of the said Steel Rod in his right leg the complainant started feeling some pain in the leg and also started feeling some problem of breathlessness. He contacted the opposite party no.2 and got him aware about the said problems but opposite party no.2 told that he should not be worried about it as the said problems would be rectified with the passage of time if he will take the medicines regularly. But on 17.2.2015 he started feeling acute pain in his leg and serious breathlessness as such he was again admitted in the Hospital of the opposite party no.1 where the opposite party no.2 started his treatment and 1 Unit of Blood was transfused into his body. Thereafter the opposite party no.2 referred him to Star Pathology Lab, Dr.Ashneet M.D. Pathology D.M.C. (Ludhiana) for conducting Tests and he gave his blood for Test on 18.2.2015 and after getting reports of Tests, it came into the notice that there was some serious problem and infection in his body. The complainant has further pleaded that on 19.2.2015 he was referred to D.M.C. Ludhiana and the doctors of D.M.C. Ludhiana, diagnosed as “ EIGHTEEN DAYS OF OLD FRACTURE MID SHAFT TIBIA RIGHT SIDE WITH INFECTED METAL WORK (INTRAMEDULLARY INTERLOCKING NAIL) IN SITU WITH DISCHARGING SINUS” The doctor of the D.M.C. Ludhiana Hospital has clearly stated that the opposite party no.2 has done the operation in negligent manner and put the Steel Rod in his right leg, which was tied with rust, just after few days of its insertion and the said Rod was also oversize. They further advised for removal of the said Rod. Ultimately on 23.2.2015 an operation was done, whereby the defected rusted Rod was removed and they have inserted Anti Biotic Rod. Even they have also given in its report “Removal of Metal Work and Stabilization of Fracture with External Fixation Across leg and insertion of Antibiotic Rod”. He had earlier spent Rs.60,000/- on his treatment in the Hospital of the opposite parties where the opposite parties had done wrong operation and remained negligent in their work. He also remained bed ridden for long period and he  also suffered acute pain due to wrong diagnose and operation and he was compelled to spent another amount of Rs.2,69,790/- in the D.M.C. Hospital Ludhiana due to wrong operation. Due to the illegal act of the opposite parties, he suffered huge monetary loss and suffered mental and physical agony from the hands of the opposite parties. Thus, there is deficiency in service on the part of the opposite parties. A legal notice dated 3.9.2015 was served through his counsel to the opposite parties but they failed to give any reply of the said notice. Hence this complaint.

4.        Notice of the complaint was issued to opposite parties. Opposite party no.1 and 2 appeared through their counsel and filed their joint written reply by taking the preliminary objections that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law; the complainant has filed this complaint with false allegations of negligence in the Hon’ble Forum; no cause of action arose against the opposite party in this case, no negligence or deficiency in services has been made and the present complaint is totally false, fabricated, wrong and baseless. On merits, it was submitted that the patient Deepak Kumar met with a serious road traffic accident on 2.2.2015, which was responsible for the breaking of the bones. The patient had sustained fracture in mid shaft right leg tibia and fibula bones. The patient was operated on 3.02.2015. Opposite party used ISO approved Pitkar branded nail for intra medullary nailing. The opposite party did IMN with distal locking. Post operative period were uneventful. First post operative dressing was dry on 5.2.2015 hence the patient was discharged on 5.2.2015. On 16.2.2015 third dressing was done where the patient had a slight discharged with history of fever and anemia. On 17.2.2015 the patient was readmitted with raised WBC counts for which antibiotics were started and a blood transfusion was given after which the patient started feeling better. Then the opposite parties got test done from the star path lab for reconfirmation. As raised WBC did not correlate with the patient symptomatology so opposite parties referred the patient to a physician Dr.Manish Goyal who diagnosed that it was leukemoid reaction and the same will be alright within 2 days. The patient also had occult blood positive in the stool and a peripheral blood report showed haemolysis causing anemia due to sepsis. Opposite party stated that any implant insertion is like foreign body insertion and sometimes the patient’s body would not accept this foreign material inserted that does not mean there was any negligence on the part of the treating doctor. The patient was advised removal of the implant, but the patient refused. Reactions to foreign material in the implanted nails are a known complication and not negligence. Patient party got panicky hence the patient was referred to DMC where all initial blood tests were found normal. No doctor at DMC Ludhiana pointed out any negligence on the part of the opposite parties. No doctor at DMC Ludhiana pointed out any removal of rusted rod put by the opposite parties. It was a normal foreign body reaction with sometimes forces medical fraternity to remove the rod and put external fixators same was done with this patient by DMC Ludhiana not because of negligence by the opposite party but because of the peculiar nature of the patient’s body not able to carry forward the metal rod inserted. No doctor at DMC Ludhiana pointed out that the rod was rusted, over sized and hence needed removal. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.

5.      Opposite party 3 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable against the opposite party and is not liable to pay compensation to the complainant as under the terms and conditions of the Professional Indemnity Dr.(other) Policy the insured opposite party no.1 and 2 did not give written intimation to the company regarding the present claim filed by the complainant against the opposite party no.1 and 2 nor other required document i.e. Medical treatment record of the complainant, Admission and Discharge Certificate of the complainant etc. supplied by the opposite party no.1 and 2 to the insurance company. Hence in absence of the required documents, the insurance company is not in a position to investigate the matter and to give the proper and complete reply of the complaint. Hence, the present complaint is liable to be dismissed on this ground only. The policy in question is the reimbursement benefit policy for the insured i.e. Mahesh Mahajan Multi Specialty Hospital, if any omission or negligence is committed by the opposite party no.1 during the treatment of the complainant, even in that case, the insurance company is not liable to pay the claim until it is covered under the term and conditions of the policy. Hence, the liability of the insurance company is fastened only subject to the terms and conditions of the policy.

6.      Complainant tendered into evidence his own affidavit Ex.C1 and affidavit   of Dr.Gurpreet Singh Goyal Ex.CX and discharge summary Ex.CX/1A, alongwith other documents Ex.C2 to Ex.C200 and closed the evidence.

7.     Opposite party no.1 & 2 tendered into evidence affidavit of Dr.Mahesh Mahajan and Dr.Munish Mahajan Ex.OP-1,2/1, alongwith other documents Ex.OP-1,2/2 to Ex.OP-1,2/11 and closed the evidence.

8.      Counsel for the opposite party no.3 tendered into evidence affidavit of Sh.Satish Kumar Sharma Assistant Manager Ex.OP-3/1, alongwith other document Ex.OP-3/2 and closed the evidence.

9.       We have carefully gone through the pleadings of counsels for the parties; written arguments and oral arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.

10.    The case was received back by remand from the Hon’ble State Commission, Pb. Chandigarh vide order dated 11.11.2020 with the direction to pass fresh detailed order on merits, after considering the evidence and other material placed on record as directed in the order dated 3.10.2017 by the Hon’ble State Commission, Pb. Chandigarh parties were directed to appear before this Commission on 22.12.2020.

11.      In compliance of the order of the Hon’ble State Commission, Chandigarh, we have carefully examined all the documents/evidence produced on record and have also heard and perused the arguments put forth by the Ld. Counsels of both the parties.

12.     The ld.counsel for the complainant in order to prove his allegations has placed reliance on documents Ex.C-18 i.e. discharge summary dated 27.2.2015 (where the complainant received corrective surgery treatment) which reads as under:-

Diagnosis as:-

“ Eighteen days of old fracture mid shaft Tibia right side with  infected metal work( Intra-medullary interlocking nail) in SITU with discharging SINUS” and again under the head: Operation done on 23.2.2015, “Removal of metal work and stabilization of fracture with external fixator across leg and insertion of antibiotic rod”

The complainant has also placed on record the discharge summary i.e. Ex.C-144 and Ex.C-145 dated 22.10.2015 reasons for admission were:-

“Follow up case of eight month old non-united fracture shaft of               tibia right side with external fixator in place and RABC in SITU”

Procedure performed: on 21.10.2015

“Readjustment of external fixator and bone grafting of non-union site with corticocancellous graft harvested from IPSI lateral inner table of ILIAC Crest.”

Hospital Course: “Satisfactory patient was taken up for surgery after initial investigations and PAC clearance RABC removal was attempted but in view of iatrogenic trauma intraoperatively consultation with Dr.M.Yamin was done and it was decided to leave RABC in SITU post operative period was uneventful. Check X Ray was satisfactory, regular ASDS and physiotherapy were done. Now the patient is being discharged in stable and afebrile condition with sutures in SITU.”

13.      The main allegation of the complainant is that the opposite party No.1 and 2 performed the operation in a negligent manner and inserted the steel rod in his right leg, which was tied with rust and was also oversized. For deciding the case of medical negligence, it is to be seen what ought to have been done which has not been done and what has been done which ought not to have been done. Complainant has alleged that the operation was conducted by the opposite parties in a negligent manner and the steel rod was inserted in his leg. But nowhere it has been mentioned that which rod was to be inserted and the same was not inserted resulting into negligence in conducting the operation.        The complainant has failed to produce any expert witness report on the file to prove any medical negligence on the part of the opposite party. Even no doctor of DMC, Ludhiana pointed out any negligence on the part of the opposite parties. No doctor at DMC, Ludhiana pointed out the removal of rusted rod put by the opposite parties. It was a normal foreign body reaction which sometimes forces medical fraternity to remove the rod and put external fixators and the same was done with this patient by DMC, Ludhiana not because of negligence by the opposite party but because of the peculiar nature of the patient’s body, not able to carry forward the metal rod inserted.  

14.        In order  to prove the fact that the opposite parties were not negligence in providing the treatment to the complainant, ld.counsel for opposite parties produced some extracts of book, “CAMPBELL’S OPERATIVE ORTHOPAEDICS Volume III by S.Terry Canale at page no.2757” which reads as under:-

INTRAMEDULLARY FIXATION:- “ Locked intramedullary nailing    currently is considered the treatment of choice for most types I, II and IIIA open and closed tibial shaft fractures (Fig. 51-26) and is especially useful for segmental and bilateral tibial fractures. Intramedullary nailing preserves the soft tissue sleeve around the fracture site and allows early motion of the adjacent joints.”

Hence, from the above mentioned medical literature, it can be well ascertained that the procedure adopted by the opposite party for the treatment of the complainant was the standard treatment-even as per the medical literature. Hence, an assertion of the complainant that standard procedure was not adopted by the opposite party does not have any leg to stand.

15.      So far as the point of infection in the leg of the complainant is concerned, ld.counsel for the opposite party has also argued that the infection rates are higher in patients undergoing operative fixation of fractures compared with other orthopedic procedures. Admittedly, operation for fixation of fracture on leg of the complainant was conducted and after some days infection appeared in the wound. Infection rates are higher even as per medical literature under the Heading:- “Impact of infection on Fracture Fixture” as mentioned in the book, Common Complications in Orthopedics by James H. Calandruccio Benjamin J.Grear and others” Orthopedic Clinics of North America, Page No.359 and 360 relevant portion of the extract is reproduced as under:-

“The risk of surgical site infection after operative fixation of  fractures is  variable depending on the location and severity of the injury. The infection rate in closed injuries varies depending on type of injury. Rates of infection after intramedullary nailing femoral shaft fractures ranges from o% to 2.7%”

16.    We have perused the entire material on record inter alia the treatment record of the hospital where the patient took treatment. We have also perused the medical literature produced by the opposite parties no.1 and 2. The doctors of the DMC Ludhiana have neither commented upon any medical negligence on the part of the opposite parties nor pointed out that the rod inserted in the leg of the complainant was rusted or oversized. Moreover, opposite party no.2 is a qualified reputed Orthopedic Surgeon and treated the patient as per the standard of practice. The ld.counsel for opposite parties no.1 and 2 have placed reliance upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, Circuit Bench, Hyderabad in case “HEIRS OF THE DECEASED NARASIMHA REDDY & OTHERS VERSUS MANAGING IDRECTOR, ROHINI HOSPITAL AND ANOTHER 2005(2)CLT”  Medical negligence- A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art- It is for the expert doctor to decide what type of treatment should be given and to decide whether the operation should be performed or not- The duty of the Doctor or a hospital is expected to take reasonable care in administration of the treatment- They cannot be condemned in case of misadventure”

17.        We would like to quote the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case “V.P.Sharma & Ors Versus G.S.Kochar & Ors  Vol.I (NC)259,  10. The Hon’ble Supreme Court in its several judgments elaborately discussed on the issue what constitute medical negligence. It is apt to recollect the words of the then Hon’ble Chief Justice of India, when he said in Jacob Mathew’s case (2005) SSC (Crl) 1369 which reads as under:

“The subject of negligence in the context of medical profession necessarily calls    for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”

      It was further observed that: “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.” In the instant case, we do not find any negligence during treatment of the patient, thus blaming the doctor and hospital is not correct.

18.   The doctor is not liable for negligence if he performs his duty with reasonableness and with due care and the mode of treatment/skill differ from doctor to doctor. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, the Hon’ble Supreme Court held that:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

 In the instant case, from the entire evidence on record,   (including        inter alia the DMC, MCI decisions) it does not appear that the OP did not perform his duties to the best of his expertise.

19.     In the present case, the complainant has failed to conclusively establish deficiency/negligence on the part of the treating doctor/the hospital.

20.     As an upshot aforesaid discussions, it is fully proved that the opposite parties no.1 and 2 treated the complainant to the best of their expertise. The opposite party no.1 and 2 are not liable for negligence in performing their duties, as they have performed their duties with reasonableness and with due care. One of the standard procedure was adopted for treating the complainant and thus blaming the doctor and hospital is not correct. Hence, the complaint filed by complainant is liable to be dismissed and is dismissed accordingly with no order as to costs.

21.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                     

              (Neelam Gupta)

                                                                               President   

Announced:                                                   (Harvimal Dogra)

March 19, 2021                                                         Member

*MK*