Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 ((now section 35 of Consumer Protection Act, 2019) on the allegations that Opposite Party No.1 is a private hospital and Opposite Party No.2 Dr.Rajeev Gupta is the Managing Director of the Opposite Party No.1 hospital and Opposite Party No.2 Doctor is responsible for the act and conduct of the practice of Opposite Parties No.1 & 2. Further alleges that on 1st February, 2016 the complainant met with an accident at about 7.00 in the evening and suffered injuries on his right lower leg and he was brought to Opposite Party No.1 hospital for treatment, the same day at around 9 a.m. Opposite Parties No.1 & 2 admitted the complainant in their hospital and conducted x-ray on the right (injured) leg of the complainant and was given first aid. After conducting the x-ray, the Opposite Parties apprised that there is one fracture on tibia and Fibula each, on right lower leg and everything will be alright after nailing surgery and Opposite Party No.2 asked to deposit Rs.40,000/- out of which the brother of the complainant deposited Rs.25,000/- in advance. At that time, the Opposite Party had assured the complainant that the latter will soon be able to walk independently within a period of one month of the mail surgery. On 02.02.2016 in the early morning, all kind of medical/ biological tests were conducted on the person of complainant by the concerned staff of pathology lab, located within the hospital premises of Opposite Parties. Thereafter, at 8 am on the same day i.e. 02.02.2016, the complainant was brought to Operation Theatre on stretcher and after giving anaesthesia, nailing was done on the right lower leg of the complainant by the Opposite Parties. The complainant started suffering acute pain immediately after regaining consciousness from anaesthesia (post operatively) and he informed the hospital attendant concerned who initially gave pain killer tablet, but the pain persisted and there was no relief of any kind. The complainant again complained of acute pain in the surgical area, on which he was given voveran injection twice during the span of five hours but the pain did not stop. The complainant was then given injection by the attendant but again after regaining conscious, the complainant complained of pain. However, it was only at about 10.30 pm, Opposite Party No.2 himself came to attend the complainant on the consistent requests of the complainant and checked the operated leg by removing of bandage and found that the complainant’s operated leg developed compartment syndrome and the doctor himself got scared of the scene. He pricked the great toe of right foot of the complainant’s injured leg with pen but thee was no sensation, then he made a cut with blade in the lower part of great toe of the complainant’s right foot and found that there was no bleeding. Finding no way, the Opposite Party immediately referred him to Amandeep Hospital at Amritsar vide discharge car-cum-referred slip dated 02.02.2016 for treatment of compartment syndrome.
2. Ld.counsel for the complainant further alleges that thereafter, on reaching Amandeep Hospital at Amritsar at around 3.15 am, the doctors on emergency duty, after thorough examination, checked up the complainant and after seeing the x-ray came to the conclusion that this has happened due to the less nursing care and less post operative advice by Opposite Parties No.1 & 2. Due to the wrong treatment and careless attention given by the Opposite Parties No.1 & 2, the complainant’s operated leg developed compartment syndrome. Since the complainant was layman, he could not specify what problem was emerging on his operated leg, rather it was for the Opposite Party No.2 doctor to come and see what his patient is suffering from after surgery. Since, he did not do it for continuously 12-13 hours, the permanent damage was done to the nerves and muscles. Muscles and nerves can not bear the loss of blood supply for m0re than six hours and they die for want of oxygen to them. Exactly it happened in his case and his nerve was paralyzed due to excessive pressure and deficient oxygen, suffered due to swelling in the compartment of muscles, resulting in blockade of blood supply and eventually, non-functioning of muscles and nerves resulted in foot drop permanently. In this way, the complainant was not given proper post operative treatment by Opposite Parties No.1 & 2. It is a rare phenomena as it should not happen in post operative elective surgery. If anything happens post operatively, it is the fault in the nursing care. Opposite Parties No.1 & 2 should have suggested the complainant about the needful elevation, and active movement of the toes and should have instructed the complainant to report immediately if any severe pain is there, but despite the fact the complainant suffered acute pain continuously and he even told the attendant many a times throughout the day, but the Opposite Parties No.1 & 2 least bothered to pay any heed to the request of the complainant, except giving voveran injunction twice during the entire duration and that too, by their attendant only. No proper instructions (post-operative0 viz. Elevation of operated leg, needful movement of toes were issued by the ops twice during the entire duration and that too, by their attendant only. No proper instructions (post-operative0 viz. Elevation of operated leg, needful movement of toes were issued by the ops to the complainant. The complainant remained in Amandeep Hospital at Amritsar for quite a long period from the midnight of 02.02.2016 till 17.02.2016 and two major surgeries i.e. (i) Fasciotomy and (ii) SSG+VAC were conducted by Amandeep Hospital at Amritsar on the right lower leg of the complainant, in order to avoid amputation of right foot of the complainant which situation arose only due to the compartment syndrome. Even after conducting the above said two major surgeries, by Amandeep Hospital at Amritsar, the foot drop still present. Despite the fact of having aggressive physiotherapy, there is less improvement in dropped foot. However, the complainant suffered permanent disability from his right leg due to compartment syndrome developed in Opposite Party No.1 hospital. The disability was determined/ assessed by the Board of Directors at GGS Medical College, Faridkot vide letter no. 2016/658 dated 05.12.2016 @ 36%. In this context, Senior Medical Officer, Civil Hospital, Ferozepur, has issued the Disability Certificate bearing No. 2553 dated 16.12.2016 on account of right Foot Drop and Sensory Loss. The Opposite Parties No.1 & 2 issued three bills amounting to Rs.15,200/-, Rs.2568/- and Rs.1920/- totaling Rs.19,688/-, but no remaining bill was issued in respect of amount of Rs.25,000/- paid in advance to Opposite Parties No.1 & 2 on 01.02.2016, hence the complainant is a consumer of the Opposite Parties No.1 & 2 and has hired the services of the ops for valuable consideration. Due to the wrong treatment given by Opposite Parties No.1 & 2, the complainant has been suffering mental and physically and he suffered permanent disability, pain, mental agony, harassment and financial loss at the hands of the Opposite Parties. The complainant has also spent transportation charges, special diet, expenses for himself, as well as for attendants etc. The complainant is entitled to refund of Rs.25,000/- alongwith interest and compensation for an amount of Rs.9,25,000/- for causing compartment syndrome in the operated leg, which resulted in complainant’s permanent disability due to foot drop, harassment, mental agony and financial loss occurred at Amandeep Hospital at Amandeep Hospital at Amritsar. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Parties to refund Rs.25,000/- alongwith interest and compensation for an amount of Rs.9,25,000/- for causing compartment syndrome in the operated leg, which resulted in complainant’s permanent disability due to foot drop, harassment, mental agony and financial loss occurred at Amandeep Hospital at Amandeep Hospital at Amritsar, physiotherapy centers and on walking-aids etc. Caused to the complainant, with costs and the complainant also needs compensation on account of future medical expenses and treatment @ Rs.30,000/-.
Hence, the present complaint.
3. On notice, Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties No.1 & 2. In the present complaint, the complainant wants to blame the Opposite Parties for his own mistake and carelessness. Opposite Party No.2 doctor is the sole proprietor of Opposite Party No.1 and is qualified orthopedic surgeon and has a M.S. Orthopedics degree as conferred by Dayanand Medical College and Hospital (DMC) Ludhiana under Baba Farid university of Health Sciences, Faridkot registered with Punjab Medical Council. Opposite Party No.2 doctor has vast experience of performing thousands of operations and even treatment of the complainant was done by him with his fully competency, sincerity and faith, so Opposite Party No.2 is not in any way deficient in his service qua the complainant. On merits, it is correct that the complainant met with an accident and he had injury on his right lower leg and was brought to Opposite Party No.1 hospital, but before coming to the Opposite Party No.1 hospital, the complainant was taken to Aarti Hospital, Ferozepur which is also run by a qualified orthopedic surgeon. It is correct that the complainant was diagnosed by Opposite Party No.2 that he has fracture on Tibia and Fibula on his right lower leg and the Opposite Party No.2 doctor opined that closed interlock nailing surgery is the best and is the latest surgery for such injuries and Opposite Party No.2 explained all the complications of this kind of fracture and the treatment of such injuries. The complainant and his attendants were fully convinced with the opinion of Opposite Party No.2 and they told the Opposite Party No.2 to carry on the treatment of the complainant. It is also correct that the complainant was told by Opposite Party No.2 that approximately Rs.40,000/- will be total expenses for such treatment, but it is wrong that complainant’s brother Vikas Sachdeva deposited Rs.25,000/- in advance instead only Rs.15,200/- were deposited. Opposite Party No.2 never assured the complainant that he will soon be able to walk independently within a period of one month of nailing surgery as minimum 3 to 6 months are required for complete healing of fracture and independent walking. It is correct that at 8.00 am on 0202.2016 the complainant was brought to operation theatre and after giving spinal anesthesia, closed interlock nailing was done on fracture tibia on the right lower leg of the complainant by Opposite Party No.2 without any apparent complication and the complainant was shifted to room at about 9.00 am and at that time, there was no pain or movement in both legs of the complainant as there was affect of spinal anesthesia which normally remains for 3 to 6 hours from the surgery. At about Opposite Party No.2 went to complainant for check up and there was still no pain as well as movement on the operated leg of the complainant due to the affect of spinal anesthesia. The operated leg was elevated on a pillow i.e. was kept at the heart level. Since 9.00 am, the continuous pulse Oximeter monitoring of toes of operated leg was done which showed 97% to 98% SPO2 with normal pulse wave- meaning thereby that Oxygen and Blood supply to the operated limbs and toes was absolutely normal. At 12.30 pm, the Opposite Party No.2 again visited the complainant and at that time, the affect of anesthesia had almost gone and at that time, the complainant told that he has slight pain in the operated leg and he also disclosed that such pain is bearable. The Opposite Party No.2 checked the moveable of ankle and toes of the complainant and movement was good. Pulse Oxygen Monitoring on the toes of operated leg was continuously going on and was showing normal blood and oxygen supply. At that time, no pain killer or analgesic tablet was given, as the pain was bearable and such pain is the normal after the affect of Anesthesia is over. Opposite Party No.2 again personally went to the complainant at 3.00 pm on 02.02.2016 although nursing staff of Opposite Party No.1 was there at all the times to look after the complainant. After checking from time to time, the pain in the operated leg has decreased. At 7.00 pm the complainant told the nursing staff of Opposite Party No.1 that the pain in his operated leg has increased and nursing staff called Opposite Party No.2. On inspection, it was found that movement of ankle and toes was normal and blood & oxygen supply to operated leg on pulse oximeter was also normal. At that time, it was found that swelling on the operated leg was slightly increased than earlier, although anti-inflammatory tablet was given. Passive physiotherapy of the ankle and toes of the operated leg was done and from the said physiotherapy there was no excessive pain reported by the complainant. At this juncture at about 7.00 pm/ 7.15 pm the Opposite Party No.2 told the complainant and his attendants that he suspects some chances of compartment syndrome, which is a rare, but known complication after injury/ fracture of leg. The Opposite Party No.2 also explained as to what the compartment syndrome is i.e.which is increase in pressure in closed compartments of injured leg due to swelling in response to the fracture and soft tissue injury due to trauma. Even at that the Opposite Party No.2 was suspecting possibility of compartment syndrome and Opposite Party No.2 also observed and personally attended the complainant from 7.00 pm to 8 pm continuously. At about 8.00 pm on 02.02.2016 the complainant still complained of pain which was not decreasing in his operated leg and then Opposite Party No.2 was of the confirmed opinion that operated leg of the complainant is going into compartment syndrome and immediately, he expressed his opinion to the complainant and to his attendants and also told them the treatment of said compartment syndrome which is an operation known as ‘Fasciotomy’. In this operation, long incisions/ cuts are given into the affected leg to release pressure of all the closed compartments of the leg. When Opposite Party No.2 told the complainant regarding need of the treatment of ‘Fasciotomy Surgery’ the complainant started complaining that he never told them about the said ‘Fasciotomy Surgery’ at the time of his admission and started misbehaving with the Opposite Party who tried his level best to let the complainant and his attendants understand that no doctor can anticipate this kind of complication in any injury- may be minor and ‘Fasciotomy’ is required in very few of the cases. It is also mentioned here that Opposite Party No.2 is fully competent and experienced in such like operations i.e. ‘Fasciotomy’ and such operation was necessary on urgent basis for the problem of the complainant, but the complainant as well as his attendants told Opposite Party No.2 that they do not want to get ‘Fasciotomy Surgery’ done from him and that they want to shift the complainant to some other hospital. In fact, the Opposite Party No.2 repeatedly advised the complainant and his attendants about the need for urgent ‘Fasciotomy Surgery’ But the complainant and his attendants refused for ‘Fasciotomy’ and even refused to give it in writing that they do not want to get ‘Fasciotomy Surgery’ from the Opposite Party and told that they want to shift the complainant to Amandeep Hospital at Amritsar and forced the Opposite Party No.2 to refer the patient to said Amandeep Hospital at Amritsar. Even at that time, the complainant and his attendants were again explained that delay in ‘Fasciotomy’ treatment might led to complication, but they were not listening to the advice and opinion of Opposite Party No.2 and took the complainant from hospital of Opposite Parties. Even at the time of shifting, the complainant had normal ankle and toe movements of the operation leg, SPO2 on the toes on pulse Oximeter was showing 98% oxygen saturation, slight blunting of sensation on dorsum of right foot was there. It is further mentioned that there was no occasion for the Opposite Party to tell the complainant about the compartment syndrome before 8.00 pm as there is no reliable device/ machine available to check the compartment pressure. It is only a clinical diagnosis by the doctor. There was no delay of 12/13 hours of making diagnosis of compartment syndrome. Moreover, when the complainant was shifted from Opposite Party hospital, there was no paralysis of the toes/ foot/ foot drop. All other allegations made by the complainant are totally wrong and specifically denied and it is, therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.
4. Opposite Party No.3 appeared separately through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.3 and from the allegations in the complaint no deficiency in service is made out. Moreover, as per the terms and conditions of the policy, the Opposite Parties No.1 and 2 have should have informed the Opposite Party No.3. Moreover, the Opposite Party No.3 is liable to indemnify the Opposite Parties No.1 and 2 if they have acted with utmost care and devotion to the medical profession and has treated the patient as per rules of the medical practice, so the complainant against answering Opposite Party is not maintainable and the same deserves dismissal. On merits, Opposite Party No.3 took up almost the same and similar plea as taken up by them in the preliminary objections and hence, the complainant is liable to be dismissed.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CW1/A, affidavit of Dr.Kamal Kant Ex.CW2/1 alongwith copies of documents Ex.C1 to Ex.C11 and closed his evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 & 2 also tendered into evidence affidavit of Dr.Rajiv Gupta Ex.OP1,2/1 alongwith copies of documents Ex.Ops1,2/2 to Ex.Ops1,2/21. Similarly, Opposite Party No.3 tendered into evidence the affidavit of Sh.Ashok Kumar Jindal Ex.OP3/1 alongwith copy of document Ex.OP3/2 and thereafter closed their respective evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that Opposite Party No.1 is a private hospital and Opposite Party No.2 Dr.Rajeev Gupta is the Managing Director of the Opposite Party No.1 hospital and Opposite Party No.2 Doctor is responsible for the act and conduct of the practice of Opposite Parties No.1 & 2. Further alleges that on 1st February, 2016 the complainant met with an accident at about 7.00 in the evening and suffered injuries on his right lower leg and he was brought to Opposite Party No.1 hospital for treatment, the same day at around 9 a.m. Opposite Parties No.1 & 2 admitted the complainant in their hospital and conducted x-ray on the right (injured) leg of the complainant and was given first aid. After conducting the x-ray, the Opposite Parties apprised that there is one fracture on tibia and Fibula each, on right lower leg and everything will be alright after nailing surgery and Opposite Party No.2 asked to deposit Rs.40,000/- out of which the brother of the complainant deposited Rs.25,000/- in advance. At that time, the Opposite Party had assured the complainant that the latter will soon be able to walk independently within a period of one month of the mail surgery. On 02.02.2016 in the early morning, all kind of medical/ biological tests were conducted on the person of complainant by the concerned staff of pathology lab, located within the hospital premises of Opposite Parties. Thereafter, at 8 am on the same day i.e. 02.02.2016, the complainant was brought to Operation Theatre on stretcher and after giving anaesthesia, nailing was done on the right lower leg of the complainant by the Opposite Parties. The complainant started suffering acute pain immediately after regaining consciousness from anaesthesia (post operatively) and he informed the hospital attendant concerned who initially gave pain killer tablet, but the pain persisted and there was no relief of any kind. The complainant again complained of acute pain in the surgical area, on which he was given voveran injection twice during the span of five hours but the pain did not stop. The complainant was then given injection by the attendant but again after regaining conscious, the complainant complained of pain. However, it was only at about 10.30 pm, Opposite Party No.2 himself came to attend the complainant on the consistent requests of the complainant and checked the operated leg by removing of bandage and found that the complainant’s operated leg developed compartment syndrome and the doctor himself got scared of the scene. He pricked the great toe of right foot of the complainant’s injured leg with pen but there was no sensation, then he made a cut with blade in the lower part of great toe of the complainant’s right foot and found that there was no bleeding. Finding no way, the Opposite Party immediately referred him to Amandeep Hospital at Amritsar vide discharge car-cum-referred slip dated 02.02.2016 for treatment of compartment syndrome. Further contended that thereafter, on reaching Amandeep Hospital at Amritsar at around 3.15 am, the doctors on emergency duty, after thorough examination, checked up the complainant and after seeing the x-ray came to the conclusion that this has happened due to the less nursing care and less post operative advice by Opposite Parties No.1 & 2. Due to the wrong treatment and careless attention given by the Opposite Parties No.1 & 2, the complainant’s operated leg developed compartment syndrome. Since the complainant was layman, he could not specify what problem was emerging on his operated leg, rather it was for Opposite Party No.2 doctor to come and see what his patient is suffering from after surgery. Since, he did not do it for continuously 12-13 hours, the permanent damage was done to the nerves and muscles. Muscles and nerves can not bear the loss of blood supply for more than six hours and they die for want of oxygen to them. Exactly it happened in his case and his nerve was paralyzed due to excessive pressure and deficient oxygen, suffered due to swelling in the compartment of muscles, resulting in blockade of blood supply and eventually, non-functioning of muscles and nerves resulted in foot drop permanently. In this way, the complainant was not given proper post operative treatment by Opposite Parties No.1 & 2. It is a rare phenomena as it should not happen in post operative elective surgery. If anything happens post operatively, it is the fault in the nursing care. Opposite Parties No.1 & 2 should have suggested the complainant about the needful elevation, and active movement of the toes and should have instructed the complainant to report immediately if any severe pain is there, but despite the fact the complainant suffered acute pain continuously and he even told the attendant many a times throughout the day, but the Opposite Parties No.1 & 2 least bothered to pay any heed to the request of the complainant, except giving voveran injunction twice during the entire duration and that too, by their attendant only. No proper instructions (post-operative) viz. Elevation of operated leg, needful movement of toes were issued by the ops twice during the entire duration and that too, by their attendant only. No proper instructions (post-operative0 viz. Elevation of operated leg, needful movement of toes were issued by the ops to the complainant. The complainant remained in Amandeep Hospital at Amritsar for quite a long period from the midnight of 02.02.2016 till 17.02.2016 and two major surgeries i.e. (i) Fasciotomy and (ii) SSG+VAC were conducted by Amandeep Hospital at Amritsar on the right lower leg of the complainant, in order to avoid amputation of right foot of the complainant which situation arose only due to the compartment syndrome. Even after conducting the above said two major surgeries, by Amandeep Hospital at Amritsar, the foot drop still present. Despite the fact of having aggressive physiotherapy, there is less improvement in dropped foot. However, the complainant suffered permanent disability from his right leg due to compartment syndrome developed in Opposite Party No.1 hospital. The disability was determined/ assessed by the Board of Directors at GGS medical College, Faridkot vide letter no. 2016/658 dated 05.12.2016 @ 36%. In this context, Senior Medical Officer, Civil Hospital, Ferozepur, has issued the Disability Certificate bearing No. 2553 dated 16.012.2016 on account of right Foot Drop and Sensory Loss. The Opposite Parties No.1 & 2 issued three bills amounting to Rs.15,200/-, Rs.2568/- and Rs.1920/- totaling Rs.19,688/-, but no remaining bill was issued in respect of amount of Rs.25,000/- paid in advance to Opposite Parties No.1 & 2 on 01.02.2016, hence the complainant is a consumer of the Opposite Parties No.1 & 2 and has hired the services of the Opposite Parties for valuable consideration. Due to the wrong treatment given by Opposite Parties No.1 & 2, the complainant has been suffering mental and physically and he suffered permanent disability, pain, mental agony, harassment and financial loss at the hands of the Opposite Parties. The complainant has also spent transportation charges, special diet, expenses for himself, as well as for attendants etc. The complainant is entitled to refund of Rs.25,000/- alongwith interest and compensation for an amount of Rs.9,25,000/- for causing compartment syndrome in the operated leg, which resulted in complainant’s permanent disability due to foot drop, harassment, mental agony and financial loss occurred at Amandeep Hospital at Amandeep Hospital at Amritsar and as such, there is deficiency in service on the part of Opposite Parties No.1 & 2.
9. On the other hand, ld.counsel for Opposite Parties No.1 & 2 has repelled the aforesaid contention of the ld.counsel for the complainant and submitted that the written reply filed by Opposite Parties No.1 & 2 be treated as part and parcel of written submissions of the answering Opposite Parties and prays that there is no deficiency in service on the part of the Opposite Parties. Further contended that Opposite Party No.2-Doctor is fully competent and experienced in such like operations i.e. ‘Fasciotomy’ and such operation was necessary on urgent basis for the problem of the complainant, but the complainant as well as his attendants told Opposite Party No.2 that they do not want to get ‘Fasciotomy Surgery’ done from him and that they want to shift the complainant to some other hospital. In fact, the Opposite Party No.2 repeatedly advised the complainant and his attendants about the need for urgent ‘Fasciotomy Surgery’ But the complainant and his attendants refused for ‘Fasciotomy’ and even refused to give it in writing that they do not want to get ‘Fasciotomy Surgery’ from the Opposite Party and told that they want to shift the complainant to Amandeep Hospital at Amritsar and forced the Opposite Party No.2 to refer the patient to said Amandeep Hospital at Amritsar. Even at that time, the complainant and his attendants were again explained that delay in ‘Fasciotomy’ treatment might led to complication, but they were not listening to the advice and opinion of Opposite Party No.2 and took the complainant from hospital of Opposite Parties. Even at the time of shifting, the complainant had normal ankle and toe movements of the operation leg, SPO2 on the toes on pulse Oximeter was showing 98% oxygen saturation, slight blunting of sensation on dorsum of right foot was there. It is further mentioned that there was no occasion for the Opposite Party to tell the complainant about the compartment syndrome before 8.00 pm as there is no reliable device/ machine available to check the compartment pressure. It is only a clinical diagnosis by the doctor. There was no delay of 12/13 hours of making diagnosis of compartment syndrome. Moreover, when the complainant was shifted from Opposite Party hospital, there was no paralysis of the toes/ foot/ foot drop and there is no lapse on the part of the answering Opposite Party-doctor.
10. It is not disputed that the on 1st February, 2016 the complainant met with an accident at about 7.00 in the evening and suffered injuries on his right lower leg and he was brought to Opposite Party No.1 hospital for treatment, the same day at around 9 a.m. Opposite Parties No.1 & 2 admitted the complainant in their hospital and conducted x-ray on the right (injured) leg of the complainant and was given first aid. After conducting the x-ray, the Opposite Parties apprised that there is one fracture on tibia and Fibula each, on right lower leg. It is also not disputed that on 02.02.2016 in the early morning, all kind of medical/ biological tests were conducted on the person of complainant by the concerned staff of pathology lab, located within the hospital premises of Opposite Parties. Thereafter, at 8 am on the same day i.e. 02.02.2016, the complainant was brought to Operation Theatre on stretcher and after giving anaesthesia, nailing was done on the right lower leg of the complainant by the Opposite Parties. The complainant started suffering acute pain immediately after regaining consciousness from anaesthesia (post operatively) and he informed the hospital attendant concerned who initially gave pain killer tablet, but the pain persisted and there was no relief of any kind. The complainant again complained of acute pain in the surgical area, on which he was given voveran injection twice during the span of five hours but the pain did not stop. The complainant was then given injection by the attendant but again after regaining conscious, the complainant complained of pain. However, it was only at about 10.30 pm, Opposite Party No.2 himself came to attend the complainant on the consistent requests of the complainant and checked the operated leg by removing of bandage and found that the complainant’s operated leg developed compartment syndrome and the doctor himself got scared of the scene. He pricked the great toe of right foot of the complainant’s injured leg with pen but there was no sensation, then he made a cut with blade in the lower part of great toe of the complainant’s right foot and found that there was no bleeding. Finding no way, the Opposite Party immediately referred him to Amandeep Hospital at Amritsar vide discharge car-cum-referred slip dated 02.02.2016 for treatment of compartment syndrome. The case of the complainant is that due to the wrong treatment and careless attention given by the Opposite Parties No.1 & 2, the complainant’s operated leg developed compartment syndrome. Since the complainant was layman, he could not specify what problem was emerging on his operated leg, rather it was for the Opposite Party No.2 doctor to come and see what his patient is suffering from after surgery. Since, he did not do it for continuously 12-13 hours, the permanent damage was done to the nerves and muscles. Muscles and nerves can not bear the loss of blood supply for more than six hours and they die for want of oxygen to them. On the other hand, the Opposite Party doctor denied all the aforesaid allegations made by the complainant on the ground that there was no lapse on their part and they tried their best as per his experience to do the needful and lastly on the persistence, he referred the patient to Amandeep Hospital at Amritsar.
11. Now the question arises as to whether Opposite Parties No.1 & 2 have been negligent in the instant case or not?. In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court of India as follows:-
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
12. The question of medical negligence also came up for hearing before the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. 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.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. 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.
In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital & Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-
"A Doctor is not 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"...(See page 122 placitum `B' of the report)
18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care (See page 122, placitum `A' of the report).”
13. Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the patient in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 & 2 can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 & 2 during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 & 2 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 & 2. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered view that the complainant has miserably failed to prove any negligence on the part of the Opposite Parties No.1 & 2 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 & 2. There is absolutely no force in the complaint and the same requires to be dismissed.
14. Hence, keeping in view the facts and circumstances of the case as well as supra judgements of Hon’ble Supreme Court of India, we find no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Member in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 14.12.2021.
