CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 1621/04
Sh. Jaipal Singh,
S/o Shiva Lal,
Const. No. 95254009, 132 BN/B, BSF,
R/o Vill & PO Basduda,
Tehsil & Distt. Rewari,
Haryana – 123102. -Complainant
Vs
1. Safdarjung Hospital,
Through Medical Superintendent,
Safdarjung Enclave,
New Delhi – 110029.
2. Dr. A.K. Singh, M.S.
Consultant Ortho. Surgeon,
Central Institute of Orthopaedics,
Safdarjung Hospital,
Safdarjung Enclave,
New Delhi – 110029. -Opposite Parties
Date of Institution: 06.12.2004 Date of Order: 19.11.2015
Coram:
Mr. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Admitted facts are that the complainant underwent a surgery at OP-1 Hospital conducted by OP-2 on 26.12.2000 on account of fracture of left thigh bone (shaft of Lt. femur) and after treatment he was discharged from OP-1 Hospital on 01.01.2011. Thereafter, complainant was again admitted to OP-1 Hospital on 22.12.2001 for surgery and the surgery for the second time was conducted on him on 8.1.2002 by OP-2.
However, according to the complainant, during first surgery on 26.12.2000, OP-2 did not put any screw on one side of the nail nor used any wire for fixing the plate which was evident from the X-ray and this act of not putting screw was a gross act of negligence on the part of OP-2. According to him, after the interlocking nailing was broken, the complainant was shifted to OP-1 Hospital on 22.12.2001 for second surgery but this time also after the second surgery the complainant had been suffering from immense local pain in his thigh which was operated upon but every time OP-2 paid no heed to his complaints and was thus negligent. He has further stated as follows:
“7. That for the aforesaid local pain in upper part of thigh which followed the second surgery done by the respondent No. 2, the complainant preferred to go for another X-ray on 19.4.04 to ascertain the factual position as he could feel nail type object inside his thigh. The X-ray report dated 19.04.2004 confirmed that needle type foreign body (a needle used for stitching during surgical procedure) is inside the thigh tissue and can be felt locally. Needless to state that the said needle was left by the respondent No. 2 while conducting surgery for the second time on 8.1.2002, and the complainant is still carrying the said needle inside his upper thigh. The complainant had complained of immense pain in the local portion of upper thigh (where the suture needle is located) after the second surgery to the respondent No. 2, but he did not bother leaving metallic needle inside the body during the surgery amount to gross negligence on the part of the respondent No. 2 and the complainant has to go for surgery for the third time for removal of this foreign body/material from his body, without any fault on his part.”
According to the complainant, this is a clear case of res ipsa loquitor as the needle left inside the thigh of the complainant during the second surgery speaks in itself about the gross negligence on the part of OP-2 and deficient services provided by OP-1. Hence, complainant has filed the present complaint for issuing direction to the OPs to pay compensation of Rs. 2 Lacs for the physical pain, mental torture and monetary loss on account of treatment, transportation and exhausting of encashable leaves along with interest @ 12% p.a. from the date of filing of the complaint till the payment is made and the cost of this complaint.
According to the OPs, complainant is not a consumer. There was no negligence on the part of the OPs in providing medical treatment to the complainant on any of the two occasions and normal procedure was adopted. It is, however, stated that after the first surgery which was successful the complainant was again referred to the OPs on 22.12.01 i.e. almost a gap of one year and that also with history of fall while walking with broken interlocking nail and fracture shaft of left femur; that the complainant was fully investigated and planned for exchange interlocking nail and bone grafting; that the complainant underwent the second surgery on 8.1.02 with interlocking nail and bone grafting successfully; that the complainant regularly followed up and he never reported of immense pain in thigh region ever. It is submitted that the complainant had taken with him all the X-ray records done before and after surgery. No X-ray record is available with the OPs to make any comment upon the same and that as per the records available and to the best knowledge of the OPs, no suture needle like foreign body was left inside the thigh as alleged by the complainant. It is further stated that the X-ray films can be manipulated and it is possible that complainant might have manipulated the films and final submission can only be made after examination of the X-ray film of the complainant. It is prayed that the complaint be dismissed.
In the rejoinder, the complainant has not denied that he was again referred to the OP on 22.12.01 i.e. almost a gap of one year with the history of fall while walking with broken interlocking nail and fracture shaft of left femur.
The complainant has filed his affidavit and also additional affidavit in evidence. On the other hand, affidavit and additional affidavit of OP-2 have been filed in evidence on behalf of OPs. Complainant has filed the discharge summary slip dated 28.7.08 issued by BSF Hospital along with additional affidavit.
Written arguments have been filed on behalf of the parties.
We have heard the counsel for the complainant and have also carefully perused the record.
Firstly, we shall discuss whether the OP-2 was negligent in performing first surgery on the complainant on 26.12.2000 and the operation was not conducted properly and due to this reason only the complainant had to go for second surgery in the OP No. 1 Hospital on 8.1.2002.
As stated hereinabove in the written statement OPs have specifically stated that on 22.12.2001, the complainant had been referred again to the OP-1 Hospital with the history of fall while walking with broken interlocking nail and fracture shaft of left femur. The complainant has not denied this fact either in the replication and has not met with this point in his two affidavits filed in evidence. In affidavits, OPs’ witness has specifically pleaded this fact. Copy of the discharge summary/slip (MRD No. 427892 dated 4.1.02) is Ex. RW1/13 in which it is specifically stated that the patient had come to the Hospital for the second time being a case of nail breakage which occurred suddenly while walking. Thus, there is abundant of evidence on the file to show that the complainant had to be got admitted to OP-1 Hospital for the second surgery NOT on account of there being some imperfection in the first surgery but ONLY because of the fact that he had suffered the injury while walking with broken interlocking nail and fracture shaft of left femur. Thus, we hold that there was no negligence or deficiency in service in performing first surgery on the complainant on 26.12.2000.
The case of the complainant is that during the second surgery one metallic needle had been left inside the body which amounts to gross negligence on the part of OP-2 for which the complainant had to go for surgery for third time for removal of this unwarranted foreign body/material from his body without any fault on his part. On the other hand, the case of the OPs in this regard is that no negligence was observed during the second surgery and the operation was successful but, however, all the X-ray records had been taken away by the complainant and, hence, without seeing the same no comments can be made. Thus, there is no specific denial of the fact that during the course of the second surgery a metallic needle had been left in the body of the complainant.
Ex. CW1/9 is the original discharge summary slip dated 28.7.2008 issued by the BSF Hospital, from a perusal of which it stands proved that the needle had been left in the body of the complainant during the previous surgery. Previous surgery i.e. second surgery had taken place on 8.1.2002. By doing the third operation at BSF Hospital, the broken needle had removed from the thigh. Thus, it is crystal clear that during the course of the second surgery on the complainant by OP-2 on 8.1.2002, a suture needle had been left in his body. The presence of metallic needle in the body of the complainant after the second surgery itself proves that there was gross negligence on the part of the OPs in performing the second surgery. In the facts and circumstances of the case discussed above, we are inclined to apply the doctrine of res ipsa loquitor to the facts of the present case so far as the second surgery done by the OP-2 in the OP-1 Hospital on 8.1.2002 is concerned.
There is no need to discuss the matter any more. However, vide their order dated 15.1.14/21.5.14, our predecessors had directed for constitution of a Medical Board and referred the matter to RML Hospital. In the report submitted vide File No. Addl. M.S(AJ)/RMLH/CC/79/1415 dated 3/5.02.2011, shadow appearing to be of a curved broken suture needle was found lying 4-5 inches away from and above the fracture site in X-ray bearing No. L-3, Sr. No.2 which was about 2 years and 3 months after the second surgery. However, the Medical Board recorded discrepancies between the clinical notings and X-ray picture taken around the same time and so the members of the Board liked to examine the patient (complainant) clinically and correlate these. Thereafter, our predecessors directed the complainant to appear before the Medical Board. Final report bearing No. Addl.M.S.(PRN)/RMLH/2014/9295 dated 20.10.2014 prepared by the Medical Board of RML Hospital, New Delhi has been filed on the record. In the said report, it is also mentioned that a needle is seen on the X-ray (No. L-3) but there is no incision scar mark present on the anterior aspect of the thigh and no separate scar mark/incision for needle removal is seen. However, the Board has concluded that no conclusive opinion can be given in this case.
As stated hereinabove, third operation was conducted at BSF Hospital which is a hospital run by the Govt. of India. Therefore, the report of the BSF Hospital cannot be ignored or brushed aside without any solid and specific reason. There is abundant of evidence on the file to show that a metallic needle was left in the thigh of the complainant by OP-2 while performing second surgery on him in OP-1 Hospital on 8.1.2002.
Here, we want to deal with another point. According to the OPs, complainant is not a consumer. Ex.RW1/12 is the original admission and discharge record (MRD 427892) issued by the OP-1 Hospital from a perusal of which it transpires that bill of Rs. 16,206/- had been raised upon the complainant. Therefore, the complainant is a consumer.
In view of the above discussion, we allow the complaint and direct OP-1 (OP-2 is stated to have retired in 2006 and who otherwise performed surgery in the discharge of his official duty though negligently) to pay Rs. 2 Lacs along with interest @ 6% p.a. to the complainant from the date of this order till the date of realisation within one month from the date of receipt of copy of this order.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL) MEMBER PRESIDENT
Announced on 19.11.15.
Case No. 1621/04
19.11.2015
Present – None
Vide our separate order of even date pronounced, the complaint is allowed and the OP-1 is directed (OP-2 is stated to have retired in 2006 and who otherwise performed surgery in the discharge of his official duty though negligently) to pay Rs. 2 Lacs along with interest @ 6% p.a. to the complainant from the date of this order till the date of realisation within one month from the date of receipt of copy of this order. Let the file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL)
MEMBER PRESIDENT
