Delhi

StateCommission

A/08/239

INDRAPRASTHA APOLLO HOSPITAL - Complainant(s)

Versus

SHRI. MUKESH KUMAR RATHORE - Opp.Party(s)

17 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 17.09.2019

Date of Decision : 01.10.2019

FIRST APPEAL NO.239/2008

In the matter of:

 

Indraprastha Apollo Hospital,

Sarita Vihar, Delhi Mathura Road,

New Delhi.                                                    ………Appellant

 

Versus

 

1. Shri Mukesh Kumar Rathore,

S/o. Late Shri Budha Ram Rathore,

R/o. 102, Engineers Enclave,

Pitampura, Delhi.

 

2. Dr. Chander Shekhar,

Sr. Consultant Orthopedic Surgery,

Indraprastha Apollo Hospital,

Sarita Vihar, Delhi Mathura Road,

New Delhi-110044.            ……..Respondents

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. By this common order I shall be deciding two appeals bearing no.539/08 titled as Indraprastha Apollo Hospital vs. Mukesh Kumar Rathore, FA No.238/08 Dr. S. Chander Shekhar vs. Mukesh Kumar Rathore as they arise out of same order dated 07.02.08 passed in same complaint no.51/07. Appellant of appeal no.FA-239/08 was OP-1 before the District Forum and appellant of FA No.238/08 was OP-2 before the District Forum.
2. The facts recited in impugned order are that on 01.08.06 at about 9.30 p.m. the complainant was going with his son in Travera car from Delhi to Jammu. He met with an accident near Mukarian, Pathankot, Punjab. He was taken to government hospital named the Punjab Health System Corporation,  Bhangra from where he was taken to Satguru Pratap Singh Apollo Hospital. He was given first aid. On 02.08.06 he was admitted in OP-1 hospital, under treatment of OP-2. OP-2 suggested some tests which were  conducted. After getting the report and examining the complainant, head injury with laceration of forehead and fracture, lower third right humerus without any  neurological deficit with suspected ACL tear right knee were found. OP-2 advised plantation of nail rod in the lower third right humerus. He advised operation. Operation was done. Complainant remained in hospital of OP-1 till 07.08.06. He was discharged with recommendation remarks that patient was in stable condition. After discharge he  was regularly suffering from painful heel fat pad syndrome. He informed the same to the OPs but no response was given. When he did not find any relief, he contacted Dr, Sanjeev Rustagi who was a Senior Orthopaedic Surgeon & Arthroscopist at Paschimi Hospital, B-17, New Multan Nagar, New Delhi. After examining the complainant had given certain prescription but complainant did not get relief in the injury. Dr. Sanjeev Rustagi advised a fresh x-ray of his injury/ fracture. On 15.11.06 he got x-ray done from Sachdeva Diagnostic, Saraswati Vihar, Pitampura, Delhi. After examining and seeing the x-ray report the Doctor had advised for removal of the plate and re-implantation with nail/ plate and bone grafting. It was clarified that fracture was not operated properly and bone had not joined properly. Therefore OP-2 and OP-1 were negligent in performing their duties.
3. Complainant was again operated at Sri Balaji Action Medical Institute, Paschim Vihar, New Delhi. He was discharged on 04.12.06. He was still undergoing treatment of that hospital. He had to pay Rs.1,00,000/- to Op-1, to spend  Rs.2,50,000/- on account of travelling, had to pay Rs.2,60,000/- to Sri Balaji Action Medical Institute. He had to abstain from business for about four months. He claimed Rs.3 lakhs as compensation on account of sheer negligence on the part of OPs.
4. OP-1 filed a WS contending that a doctor can be said to be guilty of  said negligence if he had not acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art. Opinions of the medical practitioner differ from doctor to doctor. Medical Profession is such that there may be more than one course of treatment which may be advisable for the treatment of the patient but the same may not suit and recommended by the other doctor. OP-2 is skilled doctor and proper mannered. He had got wide and varied experience and is fully competent in the field of joint replacement surgery etc. He is specialist in joint replacement, traumatology, bone tumer surgery and arthroscopic surgery. He had completed his degree of Master of Surgery (Ortho) in 1985 and had been a senior consultant and orthopaedic surgeon for the last more than 10 years with OP-1. He enjoys a good repudiation and goodwill in his field. Union of the bones and ultimate success of surgery is not a matter on which any operative surgeon can give a guarantee. If some hones had not joined properly the doctor can not be held to be negligent. The complainant had not  produced any papers with regard to the treatment  given to him by Dr. Sanjeev Rustagi.
5. OP-2 filed separate WS. He pleaded that complainant could claim compensation from MACT and from  medicare TPA services. The complainant was patient  of diabetes mellitus. After carrying  out all required investigations, tests etc. and informed written consent, the complaint was operated upon by him. The complainant was discharged on 07.08.06 in perfectly stable condition. There was no negligence whatsoever in the treatment.
6. After going through the material on record and hearing arguments, District Forum passed impugned order allowing the complaint and awarding Rs.2 lakhs for loss on account of non attending the business ,compensation of Rs.2 lakhs for travelling for four months and Rs.5,000/- as litigation expenses. The OPs were also directed to pay Rs.1,10,000/- spent by complainant in Op-1 hospital and Rs.2,50,000/- paid by him in Sri Balaji Action Medical institute. In all the OPs were directed to pay Rs.7,75,000/-.
7. During arguments in appeal counsel for the appellant submitted that District Forum did not appreciate the facts properly. When the complainant/ respondent came to appellant hospital, his reports showed head injury with laceration of forehead and closed fracture, lower third right humerus without any neurological  deficit with suspected ACL tear right knee. But complainant came forward with the allegations that he was regularly suffering from painful heel fat pad syndrome which had nothing to do with the head injury with laceration of forehead injury.
8. The counsel for appellant also submitted that according to para-12 of the complaint, the complainant was operated at Sri Balaji Action Medical Institute , Paschim Vihar, New Delhi for ORIF with BG. The complainant did not explain how said operation was related to the head injury with laceration of forehead injury.
9. The counsel for appellant also submitted that District Forum erroneously  distinguished the decision of Hon’ble Bombay High Court in Philips India Ltd. vs. Kunju Punnu AIR 1975 Bombay 306 on the ground that said case pertained to compensation on the principles of the torts and compensation on account of negligence of doctor. According to District Forum the complainant had not claimed any compensation under law of tort. Therefore law laid down by High Court of Bombay was not applicable to the facts and circumstances of the present case.
10. I am pained to see the approach of District Forum. Consumer Protection Act was enacted in 1986. Prior to that cases of negligence of doctor used to be dealt under the law of torts. Consumer Protection Act has done nothing new. It has codified the law of torts. Viewed from that angle there is no escape from the conclusion that law laid down by High Court of Bombay was very much applicable.. The Bombay High Court observed that it is not required in discharge of duty of care that doctor used the highest degree of skills. Even deviation from normal professional service is not necessarily  evidence of negligence. Mere mistaken  diagnosis is not necessarily a negligent diagnosis. A practitioner can be held liable if his diagnosis is so probably wrong to prove negligence, that is to say, if his mistake is of such  a nature and absence of reasonable skill and care on his part, regard being had to ordinary level of the skill in the profession.
11. The District Forum went on to distinguish decision of Hon’ble SC in Jacob Mathew vs. State of Punjab  III (2005) CPJ 9 on the same line of reasoning that case referred to medical negligence in case of tort. As stated earlier the complainant in the instant case has not sought  any compensation under the law of tort.
12. The District Forum noticed that defence taken by the OP was totally contradictory. On the one hand the OP submitted that fracture of the complainant was already closed by the previous hospital where the complainant was admitted. On the other hand the OPs were submitting that communited  fragment  was fixed with two legs and nine hole neutralisation plate which was applied on the posterior surface of the humerus and  a stable fixation was achieved.
13. Counsel  for the appellant submitted that closed fracture was of head injury with laceration of forehead and fracture,  and not of legs.
14. The law laid down by NC in Vasudeva P. Kamath (Dr.) vs. Vishwanath III (2007) CPJ 102 relied upon by District Forum was not applicable. The reason being that there after removal of POP cast, no clinical examination was done.  
15. The counsel for appellant relied upon decision of NC in Leela Devi vs. Shatrughan Ram (Dr.) IV (2012) CPJ 194. It was observed in the said case that skill of medical practitioners differ from doctor to doctor. Very nature of profession is such that there may be more than one course of treatment which may be  advisable for treating a patient and negligence cannot be attributed  to a doctor so long as he is performing his duty to best of his ability and with due care and caution. In the said case there was a fracture in left arm for which surgery was performed. Pain persisted. Second surgery performed. The complaint was dismissed by State Commission as well as by NC holding that the respondent was a  well qualified orthopaedic doctor and had after due consideration including proper diagnoisis and using his best professional judgement conducted a conservative surgery which involved fitting the screws and plating which in majority of cases result in union of bone joints. This is what was done by OP-2 of the present case.
16. The counsel for the appellant also relied upon decision of NC in Baljit Singh vs. Kumar Hospital II (2017) CPJ 314. In that case as per expert report, the screws along with plate had already been fixed. However plates and screws were found to have loosened, it was held that there could be many reasons for loosening of crews, namely, some accident or failure on part of patient to follow medical advice given by Orthopaedic Surgeon at time of discharge.
17. Reliance has also been placed on recent decision of Hon’ble Supreme Court in Dr. S.K. Jhunjhunwala vs. Dhanwanti Kumar AIR 2018 SC 4625. It was held in the said case that no medical evidence of any expert was adduced by respondent no.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventional surgery) except raising the issue of non giving of express consent. The order passed by NC allowing relief to the respondent was set aside.
18. Last but not the least I may mention that as per page-60 of the bunch of appeal in FA No.229/08, the complainant filled up a form for reimbursement of expenses from Insurance Company. The complainant never disclosed in the complaint that he was insured or that he had received any compensation from Insurance Company. During arguments in appeal the complainant  half heartedly  admitted that he received some compensation from Insurance Company but didn’t remember how did he receive.
19. On analogical grounds reliance may be placed on decision of NC in A.B. Motors Pvt. Ltd. vs. Admiral Impacts (P) Ltd. II (2010) CPJ 317. In that case  it was held that after claim from insurance, balance amount can not be recovered from  the dealer.
20. The counsel for appellant urged that as per aforesaid form at page-60 of the file of appeal no.239/08, the complainant had given x-ray to TPA for claiming amount from Insurance Company. That being so neither the complainant was in possession of  the x-ray to show any deficiency nor the complainant filed the x-ray before the District Forum. Thus District Forum could not return a finding of negligence or deficiency on the part of OP.
21. For the fore going reasons I find that the impugned order cannot be sustained. The appea;ls are accepted, impugned order is set aside and the complaint is dismissed.
22. Copy of order be sent to both the parties free of cost.
23. One copy of the order be sent to District Forum for information.
24. One copy of the order be placed on file of FA No.238/2008.
25. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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