DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No. 155/2010

Ex. Subedar Amar Singh

S/o Late Shri Chajju Ram

R/o Village – Paiga

PO & Distt.-Mohindergarh

Haryana.

At present in Delhi

….Complainant

Versus

Orthonova Hospital

C-5/29, SDA Main IIT Gate

New Delhi-110016.

Dr. H.V. Nagar

C-5/29, SDA Main IIT Gate

New Delhi-110016.

Dr. Saurabh Moda

Sr. Consultant

C-5/29, SDA Main IIT Gate

New Delhi-110016.

        ….Opposite Parties

 Date of Institution    :12.03.2010    

 Date of Order            :30.06.2022      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The complainant has filed the present complaint, seeking a compensation of Rs. 15 Lakhs, payment of legal charges on account of alleged medical negligence on the parts of OPs.  OP-1 is Orthonova Hospital, OP-2 is Dr. H.V. Nagar and OP-3 is Dr. Saurabh Moda working as Senior Consultant with OP-1.

Complainant is Ex-Subedar, retired from the Army and he was met with a accident on 21.11.2007.  the complainant was taken to Base Hospital Delhi Cantt for left shoulder fracture and dislocation.  He was admitted to OP-1 Hospital on 28.11.2007 and was operated on 30.11.2007 for left shoulder dislocation and steel plate was placed to support the bone.  It is stated by the complainant that since then the complainant developed acute pain yet he was discharged on 1.12.2007.  It is alleged by the complainant that this despite his and his brother’s requests, the complainant was discharged and the pus drain pipe was removed from the left shoulder of the complainant. The complainant visited OP-1 Hospital on 11.12.2007 since he was in acute pain but OP-3 gave him some medicines and advised the complainant to stay home.  Further it is stated by the complainant that on 14.12.2007 pus oozed out from his shoulder when he informed the matter to OP-3, he called the complainant for examination and the complainant was again operated on 17.12.2007 and discharged on 19.12.2007 even when the swelling, pus and pain was present. It is the complainant’s allegation that even at home the pus kept discharging along with acute pain.

When his pain became unbearable he was taken to Sethi Hospital, Model Town, Gurgaon for treatment.  There he was admitted from 22.12.2007 and discharged on 15.01.2008.  The complainant states that he spent Rs. 58,000/- which is further stated by the complainant, during hospitalization there was no pain or pus but the pus started forming again after April 2008.  Thereafter the complainant approached Poja Hospital , Narnaul, Haryana and again visited OP-1 Hospital, on 03.09.2008 as outdoor patient wherein he was prescribed some antibiotics by OP-2 i.e. Dr. H. V Nagar but there was no relief.  Further, on 11.9.2008 the complainant went to Prakash Hospital Noida, for treatment where he was admitted on the same day and steel plate was removed on 13.09.2008 and he was discharged on 15.09.2008.  The complainant again reported to the same hospital on 15.11.2008 and again on 06.03.2008 and discharged on 18.03.2008. Complainant states that the said Hospital advised that the pus formation will stop in its own course.  It is stated by the complainant even at the time of filing the present complaint, he was being treated as outdoor patient at Sainik Orthopedic Hospital, Khetri, Rajasthan.

It is the case of the complainant that he has had to undergo all this physical and mental pain on account of negligence of OP-1 and OP-2.  It is also stated by the complainant that he has an inhibition that there was negligence on the part of OP-3 i.e. Dr. Saurabh Moda and casual attitude of OP-3 towards the treatment of the complainant.  It is also stated by the complainant that though the hospital has charged yet doctors are not bothered about the treatment and the drain pipe was removed without consulting him. It is also stated that OPs were least bothered about the physical pain, pus and mental agony which the complainant was suffering.

Reply has been filed on behalf of OP-1 wherein preliminary objections has been taken. It is stated that a doctor or a hospital cannot be said to be guilty of negligence merely because a medical procedure fails or a risk inherent in a medical procedure manifests itself.  Similarly, a doctor can be said to be guilty of negligence only if he commits such an error, which   no doctor of reasonable competence will commit.  It is necessary to bear in mind that medicine is an inexact science and the mere failure of a medical process cannot be presumptive of negligence on the part of the doctor.

It is further stated that mere development of a risk associated with the condition cannot be said to be indicative of Medical negligence.  It is submitted that the respondents did not commit any error much less an error, which no doctor of reasonable competent will commit. It is also stated that the allegations made in the complaint do not disclose the commission of any error in the treatment given to the complainant much less any error, which no doctor of reasonable competence will commit. 

It is also stated that the complainant has taken treatment at Sethi Hospital, Gurgaon, Pooja Hospital, Narnaul, Parkash Hospital, Noida and Sainik Orthopaedic Hosptial Khetri.  The complainant has also stated that he underwent a surgical procedure at Parkash Hospital, Noida and despite the said procedure, he is having pus discharge.  It is submitted that OP-1 hospital cannot be held responsible in any manner whatsoever for any consequences arising from the treatment obtained and operative procedure undergone at other hospitals.

It is further stated that during the surgery performed on the complainant at OP-1 hospital, a plate was inserted to support the bone and that the said plate was removed at Parkash Hospital, Noida.  Though the complainant has not produced the relevant records, obviously, the said plate was removed fro some infection.  It is submitted that in an orthopedic procedure, whenever a foreign body is put inside, there are chances of infection.  The risk of infection is inherent in the procedure and cannot be done away despite due care and caution.  Mostly such infections are difficult to eradicate despite use of potent antibiotics.

The OP has denied that at the time of the complainant’s discharge on 1.12.2007 pus was coming out from the operative site.  It is submitted that the said allegation is incorrect and contrary to records.  No pus was coming out at the time of discharge of the complainant.  OP-1 follows the policy of keeping patients in the hospital for only such time as is necessary having regard to their condition.  At the time the complainant was discharged, there was no circumstance warranting his further stay in the hospital.  It is also denied that at that time the complainant was having pain.  Since there was no pus discharge, the removal of drain pipe placed was also warranted.

It is also stated that the complainant was admitted in the Orthonova Hospital on 28.11.2007 with the complaint of pain, swelling on the left shoulder and hip for seven days.  He was diagnosed to have a fracture dislocation of left humerus.  The complainant was admitted for surgery.  Surgery in the from of Open reduction Internal Fixation with Bone Grafting was done.  The complainant was discharged from the Hospital on 01.12.2007 after his condition improved and the operating surgeon was of the opinion that further hospitalisation was not required.

The complainant again visited OP-1Hospital on 15.12.2007.  It was found that there was an infection in the implant.  Such infection can be on account of a variety of factors such as earlier lingering infection and poor hygiene.  The complainant underwent an operative procedure – Athotromy of the left shoulder and soft tissue repair on 17.12.2007.  The complainant was put on strong antibiotics and after his condition improved, he was discharged on 19.12.2007.

It is also stated that on both occasions the complainant was treated at OP-1hospital by Dr. Saurabh Moda, who is a Senior Orthopedic Surgeon.  The treatment given to the complainant was as per standard medical practice and there was no error in the line of treatment.

It is further stated that complainant had recurrent infection and ultimately the implant had to be removed. It is submitted that the infection is not attributable to any negligence in the treatment but is a risk inherent in the procedure, which cannot be done away with due care and caution.

It is further stated that displaced fractures of the proximal humerus are difficult to manage, and numerous complications have been reported after both open and closed treatment.  One of the many complications that arises is that of infection, also referred to as Osteomyelitis, which is a bone infection caused by bacteria or other germs.  Osteomyelitis can occur after any operation on bone, but especially after implanting foreign material for internal fixation of fractures (metal nails, plate and screws) or joint replacement (plastic, ceramic, metal and acrylic cement. It is further stated that there remains a significant failure rate in the treatment of bone infections despite advances in antibiotic therapy, therefore making Osteomyelitis a great challenge to any orthopedic surgeon.  Unfortunately, there has been an increase in resistant bacterial strains which has further increased the inherent risk associated with Osteomyelitis in the treatment if displaced fractures of proximal humerus.

It is also stated that the allegations made against the respondent are baseless and no expert medical opinion is adduced in support and it is a well settled principle of law that the cases of medical negligence cannot be decided in absence of an expert medical opinion.

The OP has also denied that the attitude of the hospital was casual.  It is denied that operating doctors only care about money and new patients.  It is denied that there was continuing pus formation when the complainant was discharged.  It is also denied that the respondents were not bothered about the complainant’s condition.

Reply by OP-3 has stated that the complaint is wholly vexatious and frivolous in nature and is other liable to be rejected since it does not disclose any tenable cause of action against the answering OP. It is also stated that the complainant intends to extract illegal gain by exerting pressure on the opposite party No. 3 i.e. Dr. Saurabh Moda.  The complaint is motivated for unjust enrichment and it is without any merit.

 is also stated that there is no deficiency in service or carelessness on the part of above named Opposite Party i.e. Dr. Saurabh Moda.  In this regard it is submitted that in accordance with the judgment of the Hon’ble Supreme Court of India in “Consumer Unity & Trust Vs. C.M.D.”. reported in 1991 Vol. (1) CPJ 1 SC, the instant complaint is not maintainable.  In the said judgment the Hon’ble Supreme Court of India has held that where there is no deficiency of service or negligence on the part of Opposite Parties, then any loss etc. which is caused to the consumer, the Opposite party cannot be held liable for the same.

It is further stated that Dr. Saurabh Moda is not negligent as he possessed the requisite skill (Being orthopedic surgeon) and he exercised reasonable care/competence in the given case.

On merits OP-3 has mostly denied the facts as being false, fake and frivolous based on concocted facts. It is stated that Dr. Saurabh Moda examined his patient Amar Singh, the complainant, on 11.12.2007 and gave medicines as required and advises rest for him.  Then on the complaint of ‘Pus’ he was asked to visit the Hospital on 15.12.2007 and was admitted to the Hospital and was operated again on 17.12.2007 and was discharged on 19.12.2007. Thus, Dr. Saurabh Moda always gave proper care and attention when ever required and asked by the patient to the best of his professional knowledge and experience.  It is further pertinent to mention here that pain, swelling & pus do not end immediately with operation. That the pain, swelling and pus will reduce gradually and will come to end after sometime.

It is further stated that complainant was referred by the Base Hospital Delhi Cantt. which is an Army Hospital.  An Army Hospital will never refer its Soldier to a Hospital or Dr. which does not enjoy a good reputation.

It is seen from the record of the case that all the OPs were proceeded ex-parte and there after OP-1 and 3 were allowed to take part in the proceedings after the Hon’ble State Commission vide its order dated 06.12.2012 & 12.08.2014 set aside the ex-parte proceedings against these two OPs.

The complainant has filed his evidence and written arguments. Evidence has also been filed by OP-3 as well as written arguments.  OP-2 continued to be ex-parte.  OP-1 has though participated in the proceedings but his right to file evidence was closed on 15.9.2015 and thereafter he has not filed his written arguments though he was permitted to file them. 

It is seen from the record that discharge summaries of OP-1 Hospital on record wherein his discharge summary categorically records “course in the hospital uneventful” and is signed by Dr. Rakesh who is a Senior Resident of OP-3 and the Medical Superintendent, Dr. (Maj) Rakesh Kr. Gupta.  The Second discharge summary dated 19.12.2007 gives little history of the complainant and therein it is recorded that he was referred from Army Hospital to OP-1.  Various documents of admission and hospitalization at Sethi Hospital have also been filed by the complainant.  The complainant has also filed final bill and one discharge summary of Parkash Hospital and has also filed emergency information report of ECHS Poly Clinic, Gurgaon dated 2.01.2008.  It is also seen from the record of the case that the present complaint was instituted on 12.3.2010 and vide order dated 19.4.2010, an expert medical opinion was sought by the order of this Commission from the Medical Board, Safdarjung Hospital. The same was provided on 25.8.2010 and the report of the Chairman, Central Standing Medical Board mostly covers the medical history of the complainant starting from 30.11.2007 till 20.1.2008 and further states that “on examination today the would is healed, the fracture is clinically united there is no pus discharge and the shoulder movements are restricted”. It does not indict any hospital or doctor.

          After carefully going through all the documents filed by the parties, this Commission is of the opinion that though the complainant had to undergo a lot of trouble relating to his injury on the left shoulder yet as can be observed from the material on record no medical negligence can be attributed to either OP-1 or OP-3.  The complainant has not discharged the initial burden of proving medical negligence. In this regard, reliance is placed on the decision of Hon'ble Supreme Court in the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhanaka, 2009 INDLAW SC 1047 in which it is held as follows:

“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

The complainant has not been able to prove any negligence on the part of the OPs, it is difficult to pinpoint any negligence towards any of the hospital especially OP-1 as the same treatment was carried out by the other hospitals where the complainant was admitted later yet he did not get any relief. 

The Hon’ble Supreme Court in Jacob Mathew v. State of Punjab and Anr  (2005) 6 SCC 1 has dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional.

Hon’ble SC in Dr. (Mrs.) Chanda Rani Akhouri & Ors. Versus Dr. M.A. Methusethupathi & Ors. Civil Appeal No(S).6507 Of 2009 decided on 20.04.22 has stated

“In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

The present case, seems to be at the complainant’s body rejecting the foreign parts placed in his body and ultimately when those were removed, his wound got healed, as is evident from the report of Medical Board of Safdarjung Hospital therefore, the complaint is dismissed without any costs.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.