BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.240 of 2017
Date of Instt. 20.07.2017
Date of Decision:08.02.2022
Rajesh Kumar aged 46 yrs s/o Sh. Kailash Chand r/o 900 D Type 1 Rail Coach Factory, Township Hussainpur, Kapurthala.
..........Complainant
Versus
1. Sacred Heart Hospital, Maqsudan, G. T. Road, Jalandhar, through its Administration Head, Sister Gracy.
2. Dr. Davinder Singh Lall, Arthroscopic and Joint Replacement Surgeon at Sacred Heart Hospital, Maqsudan, G. T. Road, Jalandhar; now c/o Lall’s Orthocare Centre, adjoining F. C. Sondhi Factory (Protos), Janta Colony, Jalandhar.
3. Dr. Rajan Vig, MBBS, DNB Ortho, Sacred Heart Hospital, Maqsudan, G. T. Road, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. Karan Kalia, Adv. Counsel for the Complainant.
Sh. Y. V. Rishi, Adv. Counsel for the OPs No.1 & 3.
Sh. Anil Kalia, Adv. Counsel for the OP No.2.
Order
Dr. Harveen Bhardwaj(President)
1. The instant complaint has been filed by the complainant, wherein he has alleged thaton 03.10.2012 his minor son namely Sidharth fell at school and hurt his left forearm. Thereafter, the complainant immediately took his son to the OP No.1 as the RCF Kapurthala provides for the medical aid/treatment/facilities for their staff/employees and their families at the hospital of OP No.1. That the OP No.2 who was working as Arthrosopic and Joint Replacement Surgeon with OP No.1 at that time examined the son of the complainant on 03.10.2012. An X-ray of the left forearm clearly showed a fracture on the bone of Sidharth. The OP No.2 got the son of the complainant admitted in the hospital on 04.10.2012 he operated Sidharth and had applied POP on the left forearm of Sidharth. The complainant was advised to come back after a month for re-examination of the plaster of the forearm of Sidharth by OP No.2. That after a month on 05.11.2012, the complainant took his son for re-examination and for removal of POP to the OP No.1 and complained about severe pain in the left forearm of Sidharth. At that time, the OP No.2 removed the POP and advised to get the X-ray done again to see the situation/position of the fractured bone. The report of X-ray dated 05.11.2012 clearly showed no improvement in the fractured bone of Sidharth. The fractured bone was not joined in proper form. Rather the fractured bone had formed a curve and had dislocated/moved the other bone from the joint in the left forearm. When the complainant complained to the OP No.2 about the improper joint, curved bone and the dislocated bone at this the OP No.2 said to the complainant that the curved bone and the dislocated bone will get fine in some time. Not only this, the OP No.2 advised the complainant to take to give pain killers to his son. On the advice of the OP No.2, the complainant used to give medicines as per the directions in the hope that the arm of his son get completely fine in some time. That when there was no improvement in the condition of the complainant’s son, the complainant again took his son to the hospital of OP No.1, where he was again got admitted on 15.05.2013.OP No. 2 had advised the complainant that in order to fix the curve/bend in the bone of Sidharth, he will perform a surgery in which he will cut the bent bone from the middle and then insert a plate in the bone of left forearm which will support the fractured bone and will help the bone to rejoin in its correct form and that the bend/curve will be cured. The complainant agreed to this advice of OP no.2 in the hope that the curved bone will come to its original shape. The operation for inserting the plates in the left forearm of Sidharth was performed by OP no.2 on 16/5/2013. That on 17.05.2013, the x - ray clearly showed that six holes were drilled in the fractured bone of the left forearm, but the complainant was shocked and surprised to see that instead of inserting plates, the OP No.2 had inserted a rod in the fractured bone. The OP no.2 advised the complainant that now there was no requirement to insert and affix the plates to give the support to the fractured bone, as the rod affixed in the forearm will support and fix the fractured bone to its original shape. Sidharth was discharged from the hospital of OP No. 1 on 18/5/2013 and was advised to get an x-ray after one month. As advised, the x-ray was taken by OP No.1. The said x-ray did not reveal any improvement in the fractured bone of Sidharth. After 2 months i.e. July, 2013 the Opposite Party No.2 removed the rod from the fractured bone. After the removal of the rod, as there was no support to the fractured bone, the said fractured bone again got disfigured and got a curveand the other supporting bone was again pushed from its original position by the curved bone. That when there was no improvement in the condition of the left forearm of Sidharth, then on 27.07.2013, the complainant visited Vasal Hospital Pvt. Ltd., Jalandhar to get his son examined for a better treatment. After going through the history of the case and after examining Sidharth, the concerned Doctor at Vasal Hospital advised the complainant to get the surgery of the left forearm of his son at the age of fifteen years. The same is mentioned in the report as "Surgery at 15 yrs". That even after all these surgeries, there was no improvement in the condition of the left arm of Sidharth. Rather he was suffering from continues pain in the left forearm. After the period of 3-4 months, the complainant was shocked to notice that there was no improvement in the deformity in the left forearm of Sidharth. The deformity was clear from the joint of the elbow of the left forearm. At this the complainant again took his son to the OPNo.1, wherein he complained about the said deformity and the continuous unbearable pain being suffered by his son. That the OP No.1 and 2 advised the complainant that this time they will insert a plate in the fractured bone and assured the complainant that the deformed bone will get back in propershape and the other dislocated bone from the joint in the forearm will come back to its original position. On this the complainant had shown to the Opposite parties the report/discharge summary dated 27.07.2013 of Vasal Hospital Pvt. Ltd. Jalandhar, wherein a surgery was advised at the age of fifteen years. The son of the complainant at that time was nine years old and had already undergone two surgeries performed by OPs. Even then, the OPs assured and advised the complainant that this time they will insert a plate in the fractured bone and assured the complainant that the deformed bone will get back in proper shape and the other dislocated bone from the joint in the forearm will come back to its original position. That on this assurance, the complainant again got admitted his son with the OP No.1 on 29.09.2013. A third operation was performed on Sidharth by the OP No.2 on 01.10.2013, wherein a plate was inserted in the fractured bone of the left forearm of Sidhtarth. The OP No.2 advised the complainant to come after a month for re-examination. Thereafter, Sidharth was discharged from the hospital of OP No.1 on 03.10.2013. That an x-ray dated 15.11.2013 was taken at the hospital of OP No.1, which clearly showed that there improvement in the fractured bone, rather the position got worse. The fractured bone had joined in a deformed manner as the OP no.2 had inserted the plate in the curved bone,without getting the said curved bone in the straight position. Not only this, but the deformed born also pushed the other supporting bone in the forearm, which was dislocated from the elbow joint. This caused the forearm to be disfigured. When the complainant inquired from OP No.2 the reason and cause of the curved bone, the OP No.2 assured the complainant that within 2-3 years, the curved bone will come in its proper position and the dislocated bone will also come in its original position and that the complainant need not worry about it. That even thereafter the son of the complainant used to feelsevere pain in his left forearm. The complainant approached the opposite party on 19.04.2014 wherein an x-ray was done on the forearm of Sidharth, which clearly shows a disfigured arm, wherein the supporting bone has been pushed and dislocated from the elbow thus causing a disfiguration in the forearm. That on 31.05.2015 the complainant got examined his son from Dr. Mukesh Jain, MS (Orthopaedic Surgeon), Muzaffarnagar, UP. The said doctor after examining the son of the complainant and after going through the entire record and case history had given his opinion that "Neglected radial head dislocation" and advised "Surgery after 3 yrs".That on 30.05.2017, when the son of the complainant got severe pain in the left forearm, the complainant took his son to the OP No.2 at his clinic where an x-ray dated 30.05.2017 was shown to the OP No.2 which revealed that the bone has started to grow around the plate which was inserted by the OP No. 2. At this the OP No.2 advised the complainant for removal of the plates through surgery. The same is mentioned in the report dated 31.05.2017 as "advice-plate-removal". That on 15.06.2017 son of the complainant was got admitted in the hospital OP No.1 for the removal of the plates in the forearm by surgery. On 16.06.2017 the surgery was performed by OP No.3 and the plates were removed from the left forearm of Sidharth. The son of the complainant was prescribed medicines and the complainant was assured that the surgery was successful. When the complainant complained to the opposite parties about the curve in the arm/disfigured forearm from the elbow joint of Sidharth, at this the OP did not give any satisfactory answer and advised Sidharth to take medicine for 15 days. The son of the complainant was discharged from the hospital on 17.06.2017. That on the advice of the OPs, the son of the complainant took medicines for 15 days and got an x-ray on 03.07.2017. The complainant was shocked to notice that the x-ray dated 03.07.2017 clearly revealed that the fractured bone of the left forearm had not been joined in a proper way/straight way. Rather the bone had been disfigured and had formed a curve. Not only this, the curved/disfigured bone had put pressure on the other supporting bone of the left forearm and had pushed the supporting from the elbow joint. This disfiguration of the fractured bone due to gross medical negligence can clearly be seen in the x-ray dated 03.07.2017. That the son of the complainant was a very bright and intelligent student and used to get very good marks and rank in the school.But after the prolonged and continues ill treatment/mistreatment by the OPs and due to the gross medical negligence of the OPs, the son of the complainant suffered mental and physical harassment over a prolonged period of time which eventually showed in his school grades as the school grades of Sidharth dropped drastically. That due to the wrong and ill treatment of the OPs No.1 and 2 on the son of the complainant, the son of the complainant for a single fractured bone had to undergo 4 surgeries on 04.10.2012, 16.05.2013, 01.10.2013 and 16.06.2017. Not only this, the son of the complainant isstill to undergo one more surgery to remove the dislocated radial head in the year 2018. That due to the wrong and ill treatment of the OPs No.1 and 2 on the son of the complainant, the son of the complainant is left with a bend/curve in his left forearm due to which he is unable to perform regular activities and movements, cannot participate in physical sports, cannot lift heavy weights, feels a pain in the left forearm at anytime, will not get selected in the police or the army in future and suffered mental harassment which resulted in sudden drop in his grades in the school. That the complainant had to visit the OPs No.1 and 2 to get his son treated for more than 20 times for which he had to hire a private vehicle every time from RCF, Kapurthala to Sacred Hospital, Jalandhar. Every visit used to cost the complainant a sum of Rs.3000/-approximately. The complainant also had to purchase medicines for the treatment of his son which amounted to Rs.50,000/- approximately. That the act of the OPs No.1 and 2 regarding the gross medical negligence in treating the complainant’s son amounts to deficiency in service on the part of the OP and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs No.1 and 2 be directed to pay a sum of Rs.18,00,000/- as compensation for gross medical negligence in treating the son of the complainant which resulted in the left forearm of the complainant to be disfigured and further OPs No.1 and 2 be directed to pay Rs.55,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 3 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the complainant has not approached this Commission with clean hands. He has presented a distorted and twisted version of facts and has deliberately withheld true vital facts. The complainant with malafide intentions concocted a false story and attributed absolutely false allegations against the OPs. The fact is that the son of the complainant was admitted in OP No.1 on 03.10.2012 with broken arm which was not splinted properly by the source from where he has got first aid. His X-ray showed fracture of ulna bone in left forearm. The forearm, which is below the elbow joint, has two bones, namely radius. As per treatment of choice for fractured ulna without any displacement, plaster application was done and he was admitted for one day in hospital and discharged on 04.10.2012. Reference may be had to Cambell’s Operative Orthopaedics Twelfth Edition Vol.2 Page 1380 and Chapter No.36 which says that most montaggia fracture in children can be treated with closed methods mean plaster application. It is absolutely wrong and vehemently denied that OPs operated the left forearm of Patient on 04.10.2012. On 05.10.2012 on re-examination and as per X-ray report it was observed that the bone has united in acceptable angulation as such there was proper improvement in the recovery of patient and accordingly, the plaster was removed from the said forearm. It is absolutely wrong and denied that on 05.11.2012 and thereafter patient complainant sever pain in the said forearm. Accordingly, the treatment with plaster was continued after again explaining the prognosis to the parents. It is important to mention here that the patient was asked to come for regular follow up aafter every month, or earlier if there is any problem. But after 7 months, on 15.05.2013 he visited for reexamination and X-ray was taken. It was observed from X-ray report that angulation in bone was found to be increased and it was not remodeled so a corrective osteotomy was advised and prognosis was explained to parents of the patient and they after understanding the same agreed for corrective osteotomy. It is further submitted that the complainant brought the patient for re-examination before the OPs in August, 2013, when it was noticed that the nail which was inserted by OPs by operation on 17.05.2013 was missing for which no satisfactory explanation was given by the complainant. It is pertinent to note that complainant has produced discharge slip of Vasal Hospital, Jalandhar which shows that he was admitted there and has taken consultation from other doctors. Even the discharge slip of Vasal Hospital did not mention about the presence or absence of nail in the said forearm in their discharge slip. It is further averred that the treatment taken by complainant almost after four years from OP No.3 under OP No.1 does not in any manner show any negligence or deficiency on their part. The patient has not come to the OPs on 31.05.2017 as follow up treatment. It is further averred that the complaint is absolutely time barred. That the complainant had dragged the OPs into unnecessary, uncalled and unwarranted litigation with ulterior motive to extract money from the Prescription slip. That the present complaint is not maintainable in as much as there is no negligence nor any deficiency in service nor any unfair trade practice on the part of the OPs. The present complaint is neither maintainable on law nor on facts and complaint is liable to be dismissed. On merits, it is admitted that the son of the complainant was admitted in OP No.1 on 03.10.2012 with broken arm and discharged on 04.10.2012 and further it is also admitted that the complainant brought his son for re-examination before the OPs in August, 2013, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complaint is barred by limitation. The complaint is baseless, not supported by any medical/expert evidence of the alleged negligence on the part of the OP No.2. It is malafide also, and has been filed to malign and blackmail the answering OP. On merits, it is admitted that the son of the complainant was brought to OP No.2, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-30 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel for the OPs No.1 & 3 tendered into evidence affidavit of Dr. Lyla Jose, Authorized Representative of OP No.1 as Ex.OP1/Aalongwith some document Ex.OP1/1 to Ex.OP1/3 and closed the evidence.
6. The counsel for the OP No.2 tendered into evidence affidavit of Dr. Davinder Singh Lall as Ex.OP2/Aalongwith Annexure-I and other documents Ex.OP2/1 & Ex.OP2/2 and closed the evidence.
7. We have heard thelearned counsel for the respective parties and have also gone through thecase file as well as written arguments submitted by the counsel for the OPs No.1 & 3 very minutely.
8. The Ld. Counsel for the complainant submitted that there is a negligence and deficiency in service on the part of the doctor i.e. OP No.2, who was working as an Arthroscopic and Joint Replacement Surgeon with OP No.1 at the relevant time. The son of the complainant, who was minor at that time, fell in school on 03.10.2012 and his left forearm was hurt. The son of the complainant was taken to RCF Kapurthala, where he was given first aid and then he was referred to OP No.1. The son of the complainant was admitted in the OP No.1 and on 04.10.2012, POP was applied and he was discharged from the hospital on 04.10.2012. He went to the hospital on 05.11.2012 for reexamination. The X-ray was got conducted, which showed no improvement and the bone of the son of the complainant had found a curve. On inquiry, he was informed that the bone is fine and the curved bone shall be fine within some time. It has been argued by the Ld. Counsel for the complainant that since there was no improvement in the condition of his son, he was again taken to OP No.1 and was got admitted on 15.05.2013, where the rod instead of plate was inserted in the bone of left arm on 16.05.2013 and his son was discharged on 18.05.2013. He has further submitted that in the month of July 2013, OP No.2 removed the rod from the bone and there was no support to the bone, which disfigured the arm of the son of the complainant. Then he went to Vasal Hospital on 27.07.2013, where the doctor advised the complainant to get the surgery after 15 years. Number of surgeries was conducted by the OPs, but there was no improvement rather there was a deformity in the joint of the elbow of the left forearm of the son of the complainant. Again on 29.09.2013 third operation was conducted on his son and plate was inserted in the fractured bone. On 15.11.2013, the X-ray was conducted, which shows no improvement in the bone. On feeling severe pain in the bone, the complainant visited the OP on 19.04.2014, wherein again X-ray was conducted which showed that supporting bone has been pushed and dislocated from the elbow. On 31.05.2015, the complainant got examined his son from Dr. Mukesh Jain Muzaffarnagar, U. P., where he was advised surgery after 3 years. In the year 2017, when a severe pain was felt by the son of the complainant, he was advised for the removal of the plate and on 16.06.2017, the surgery was performed by OP No.3 and the plate was removed. Despite all the regular visits and follow-ups, the forearm of son of the complainant has been disfigured and the same has not been joined in a proper way. The bone had formed a curve. All this happened due to medical negligence by the doctor OP No.2 and the other OPs, which has led the son of the complainant to go through a Trauma and mental and physical harassment. Request has been made to accept the complaint.
9. The Ld. Counsel for the OP No.1 has admitted about the visit of the son of the complainant to the hospital and his admission in the hospital. It has been argued that no surgical operation was done. The treatment was purely as per the medical literature. He has relied upon Cambell’s Operative Orthopaedics Volume Two by S. Terry Canale and James H. Beaty in Part XI Fractures and Dislocation in Children page 1380, where it is stated that “Most Moteggia fractures in children can be treated by closed methods”. He has further argued that on 05.11.2012, when the son of the complainant visited the OPs, it was observed that the fractured bone has united in acceptable angulation. He has referred page No.1380 9th line from bottom in Ex.OP2/1, in which it has been written that“Recommendations for treatment are based on the age of the patient and the severity of the deformity: (1) in children 6 to 10 years…….. (2) in children 6 to 10 years, correction of deformities of 20 degrees or more should be attempted and (3) in children 5 years and younger, no correction is necessary because remodeling most likely will restore correct anatomy and function”. The plaster was removed. There was no negligenceon the part of the OPs, rather there was a negligence on the part of the complainant himself. He did not come to get check up as follow up treatment as advised by the doctor, but came for re-examination after five months i.e. on 15.05.2013 as there was increased angulation of the bone. The nail was inserted in the best interest of the patient as the setting of the bones with nail was found to be better in the case of the children. He has further argued that when the son of the complainant was brought in September 2013, the nail was found missing and the nail could not be removed without surgical operation, which was never done by the OPs. The complainant did not give proper reply and he had concealed the fact that he got treatment from Vasal Hospital in July 2013, where the nail was removed. Since, there was no support to the bone therefore, the son of the complainant suffered deformity in the bone. He has further submitted that again plate was inserted as per standard medical literature by OP No.2 on 01.10.2013 and last he came for follow up on 15.11.2013. Thereafter, he did not take any treatment from OP No.1 as OP No.2 had left the hospital.
10. The Ld. Counsel on behalf of the OP No.3 has submitted that the OP No.3 has removed the implanted plate only in June 2017, after admission. He has further submitted that except this, there is no role of OP No.3. The OPs No.1 & 3 are not vicariously liable unless and until the primary liability of OP No.2 is established. He has relied upon a case titled as “Medical Superintendent ESI Hospital Vs. Ram Avadh Pal”. He has further submitted that there was no complaint about the mismanagement of OP No.1 in the treatment of the complainant’s son in the OP No.1.
11. The Ld. Counsel for the OP No.2 has argued that there is no medical negligence on the part of the doctor. He is a qualified doctor. The OP No.2 treated the son of the complainant as per the standard method required under the medical field as per condition of the son of the complainant. The OP No.2 is in no manner deficient or negligent. There is no document on the record to show that any doctor or any expert has ever stated that the treatment given by OP No.2 was wrong. Though the complainant has filed on record the certificates or slips from the doctor, but the proper treatment given by any of the doctor has not been filed on the record. No expert has ever given his opinion that the treatment given by the OP No.2 was wrong or bad. The problem with the son of the complainant occurred only when he diverted the treatment and got treatment from other hospital. There is no document on the record filed by the complainant to show that the nail was removed from the bone of the complainant by OP No.2 in the OP No.1. The treatment given to the son of the complainant was as per the Cambell’s Operative Orthopaedics Volume Two by S. Terry Canale and James H. Beaty in Part XI Fractures and Dislocation in Children page 1380, where it is stated that “Most Moteggia fractures in children can be treated by closed methods”. The complainant never followed up the treatment as advised by the doctor. He has relied upon the case titled as“Om ParkashVs. Nidhi Bansal” in 2015 Vol. IV CPJ 21. He has also relied upon in a case titled as“Sukdev Gill Vs. Rotary Eye Hospital”. He has relied upon the judgment decided by the Hon’ble Punjab State Consumer Commission in case titled as “Mukhtiar Singh Vs. M/s Delta Heart Centre Pvt. Ltd. &Ors.”, another case decided by the Hon’ble Supreme Court titled as “Dr. Harish Kumar Khurana Vs. Joginder Singh”. The case decided by the National Consumer Disputes Redressal Commission titled as “Shah Hospital and others Vs. Diljeet Kaur and anr”. He has also relied upon 2019 Vol II RCR Civil 300 and request has been made to dismiss the complaint.
12. This fact is admitted that the son of the complainant was admitted in the OP No.1 due to hurt in left forearm and it has been also admitted that he was given treatment by OP No.2, whenever the complainant visited the OP No.2 for re-examination or for his treatment. It is also admitted that initially POP was put on the left forearm of the son of the complainant and thereafter nail was inserted when the need was felt. The complainant has filed number of documents to show the admission and treatment of the son of the complainant in OP No.1 and from OP No.2. It is also admitted that OP No.3 removed the plate in June 2017. The complainant has also filed on record the copies of the X-ray to show that due to medical negligence of the doctor i.e. OP No.2, the deformity occurred in the left forearm of the son of the complainant.
13. Before coming to the controversy as to whether there was any medical negligence on the part of the OPs in the treatment of the son of the complainant or not, it is necessary to understand what does medical negligence mean. It has been held by the Hon’ble Supreme Court in a case titled as “Vinod Jain Vs. Santokba Durlabhji Memorial Hospital”, that in cases of medical negligence, the liability of the doctor will come only, if either the doctor did not possess requisite skills professes to have been possessed by him and he did not exercise with reasonable competence in given case, skill which he possesses. The medical negligence has been defined by the Hon’ble Supreme Court, in a case titled as
“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, which is as under:-
“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.” In the present case, this is not the case of the complainant that the OP No.2 was not having required skills. He was an Orthopedics Surgeon and was specialized in Arthroscopic and joint replacement. The OPs have referred Cambell’s Operative Orthopaedics Volume Two by S. Terry Canale and James H. Beaty in Part XI Fractures and Dislocation in Children page 1380, where it is stated that “Most Moteggia fractures in children can be treated by closed methods”. As per submission of the OPs the proper procedure as mentioned in the above medical literature has been followed.
13. The complainant has filed on record the documents showing the admission of the son of the complainant, age of the son of the complainant and the treatment given by the doctor. The complainant was admitted on 03.10.2012 and was discharged on 04.10.2012. As per record after one month the bone was united in acceptable angulation. The complainant has alleged that the nail was inserted in the left forearm of his son wrongly, as he was told that plate is to be inserted. As per record, after five months there was increased angulation of bone. As per OPs Osteotomy of ulna was required for angulation deformity. The OP No.2 has alleged that on 15.05.2013 intramedullary nail was inserted for perfect alignment as per Ex.C-19 as it was the best treatment for the son of the complainant. It has been held by Hon’ble Supreme Court in case titled as “Kusum Sharma and others Vs. Batra Hospital” in 2010 (2) CLT 282 (SC) has held as under:
“negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill competence, merely because 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. Medical Practitioner would be liable only when his conduct fell below that of the standards of a reasonable competent practitioner in his filed.”
14. There is nothing on the record to show that inserting nail is unacceptable to medical profession. The OP No.2 has denied that he has ever removed the nail from the left forearm of the son of the complainant, whereas the complainant has alleged that the nail was removed by the OP No.2 in July, 2013, but he has not produced on record any document to show that the son of the complainant was ever admitted in the hospital of OP No.1 or visited OP No.1 for any treatment in the month of July, 2013. This means till June 2013 he was fine and there was no check up. Perusal of the record shows that there is a document Ex.C-11, which shows that the son of the complainant Sidharth was admitted in Vasal Hospital Pvt. Ltd. Jalandhar. He was discharged on 27.07.2013 i.e in the month of July. It has been mentioned in this prescription that earlier treatment was taken from Sacred Heart Hospital. No document is there on the record to show that the son of the complainant was ever admitted in the hospital/OP No.1 and he was ever operated upon in the month of July, 2013 in OP No.1, when the nail was allegedly removed by the OP No.2, rather the complainant himself has admitted that in the month of July, 2013 there was no rod in his arm. As per submission of the counsel for the OPs, the nail cannot be removed without the surgical operation and the patient was never admitted in their hospital as per record. This contention finds weight as removal of rod from the arm is not possible without any surgical operation. It is not removable without surgery. The submission of the counsel for the OPs is that the nail was removed by the doctor of some other hospital. It is proved that the son of the complainant was got admitted in Vasal Hospital in July, 2013 as per Ex.C-13. As per the medical literature, filed on record by the OPs Ex.OP1/1 for the post-operative care, it is required that after intramedullary pin fixation, the cast is removed after six weeks. The pins are extracted at six months or longer. It has been mentioned further that angulation of less than 20 degrees in young children usually remodels satisfactorily. In Ex.OP1/1 and Ex.OP1/2, the detail procedure has been given to be taken into account while performing the surgery of any fractured arm and closed intramedullary nailing and the post-operative care. As per the record furnished by the complainant as well as the OPs, it has not come into picture that the proper procedure or care was not taken while treating the child. The deformity in the joint of elbow of the left forearm occurred because the support given to the bone by way of nail was got removed. Since the implanted nail was already removed, therefore to safeguard the interest of Sidharth, the operation was conducted on 01.10.2013 and the plate was inserted in the fractured bone of left arm of Sidharth. As per record, the complainant did not visit the OPs from 15.06.2013 to September 2013 rather got treatment from Vasal Hospital as per Ex.C-11. The necessary care is required to be received even after the post-operation. During the period given by the doctor, the patient is to go through the transition care which requires different level of medical care even outside the hospital after the operation. The appropriate and correct follow up as per instructions of the doctor can help to make assessment of the problem, if any, suffered by the patient and the doctor can take steps to correct and rectify that problem, but in the present case, the complainant did not visit the doctor for three months rather visited different hospitals during this period.
15. The complainant has produced on record the prescription of Joshi Super Speciality & Multi Speciality Hospital Ex.C-29 and Ex.C-30, of Vardhman Trauma & Laparoscopy Centre Ex.C-12, in which it has been mentioned that neglected radial head dislocation advised surgery after three years, but no date has been mentioned in this Ex.C-12. Ex.C-29 and Ex.C-30 are of 23.11.2019 and surgery was advised, but till date no surgery has got been done by the complainant. All these prescriptions nowhere show that any doctor has declared that the deformity is due to the negligence of the doctor. It has been held by Hon’ble National Consumer Disputes Redressal Commission, in case II (2018) CPJ 447 (NC), titled as “Sukhdev Gill Vs. Rotary Eye Hospital & Ors.”, which is as under:-
“Prescription slips of different hospitals pursued – None of these doctors mentioned that Retina Detachment (RD) was due to negligence or carelessness during squint correction surgery performed by OP3.”
“Merely because patient did not respond favourably to treatment, cannot be a ground to fasten liability upon medical professional – Negligence not proved.”
It has been observed by the Hon’ble Supreme Court, in Civil Appeal No.7380 of 2009, case titled as “Dr. Harish Kumar Khurana Vs. Joginder Singh & Ors”, which is as under:-
“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.”
It has been the Hon’ble Supreme Court in Consumer Protection Judgments-2022 (I), in case titled as “Bombay Hospital & Medical Research Centre Vs. Usha Jaiswal & Ors” that “in post-operative complications doctor cannot be held liable for medical negligence by applying doctrine of res ipsa loquitur for reason that patient has not favorably responded to treatment given by doctor or surgery has failed. Simple lack of care, error of judgment or accident, is not proof of negligence on part of medical professional. The Commission ought not to presume that allegations in Complaint are inviolable truth even though they remained unsupported by any evidence. Sufficient material or evidence should be available before adjudicating authority to arrive at conclusion that death is due to medical negligence.”
16. In the present complaint, there is no evidence or expert opinion on record to prove the alleged medical negligence except the affidavit of the complainant. There is nothing on the record to prove that if the OP No.2 was deficient or negligent in service. As per record and medical literature proper and reasonable care was taken. There is nothing on the record to conclude that any standard of care was lacking.
17. As per the law laid down by the Hon’ble Supreme Court 2015 Vol.III Civil Court Cases 557 that the hospital is vicarious liable for the acts of its doctor, but the hospital can be held liable only if the medical negligence of the medical practitioner is proved. It has been held by the Hon’ble National Consumer Commission, in a case titled as “Medical Superintendent ESI Hospital Vs. Ram Avadh Pal", which is as under:-
“Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, the vicarious liability on the State cannot be imposed.”
18. In the present case, the complainant has failed to prove the medical negligence of the OP No.2. Since the medical negligence of OP No.2 is not proved, therefore as per the law laid down by the Hon’ble National Commission, the hospital cannot be held liable. There are no allegations of any medical negligence against OP No.3. The allegations against him are only that he removed the plates on 16.06.2017. Thus, in view of the above detailed discussion, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
19. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr.Harveen Bhardwaj
08.02.2022 Member President
