APPEARED AT THE TIME OF ARGUMENTS

For the Complainant        :         Mr. Rabin Majumder, Advocate along

with complainant in person

For the OPs No. 1 to 4     :         Ms. Prachiti Deshpande, Advocate for

Dr. R. R. Deshpande, Advocate

PRONOUNCED ON: 07^th February,  2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

The arguments in this complaint were heard on 11.07.2019 and passed the following Order:

Heard arguments from both the sides for about 3 ½ hours, of which about 3 hours were by the learned counsel for the complainant.

Perused the material on record. 

The complaint is dismissed.

Reasoned judgement to follow.

In pursuance to the said Order, reasons are as follow:

Complaint:

1.       In the month of June 1997, Mr. Hiwraj Kamble (H. N. Kamble) the complainant (hereinafter referred to as the ‘patient’) noticed a swelling and pain on his right knee. He initially felt it as a minor one, but as the problem continued, on 09.10.1997, he consulted an Orthopaedic surgeon Dr. Jagdish Agroya at his Agroya Hospital, Latur.  X-rays of the right knee joint (antero-posterior and lateral view) were taken and it revealed ‘a lytic lesion’ in the right knee joint. Dr. Arogya advised biopsy from the lesion to ascertain the diagnosis. Thereafter, on 15.10.1997 the patient approached Dr. G. A. Hajgude an Orthopaedic surgeon at Hajgude Accident Hospital, at Latur. Patient showed the 1^st X-Ray report to Dr. Hajgude. Another X-ray of the lateral view of the right knee joint was taken by Dr. Hajgude. Based on both the X-rays, Dr. Hajgude confirmed it as a lytic lesion in right knee joint, and advised the patient complete bed rest for 5 days. 

2.       On 21.11.1997 in an office meeting at Pune, the complainant while attending phone call in standing position, his right leg got twisted and suffered severe pain in right knee. Therefore he was taken immediately to Hardikar Hospital in Pune and was admitted there. Dr. Hardikar (O.P. No. 4) examined the patient who told about his previous history of right knee joint pain. He showed two x-ray reports which were done by Dr. Jagdish Agroya and Dr. Hajgude at Latur. However, the complainant did not carry the X-ray films with him at that time, but those X-ray films were brought on the next day and were shown to Dr. Hardikar – O.P. No. 3. The complainant alleged that it was a case of pathological fracture due to giant cell tumour (GCT), but O.P. No. 3 failed to diagnose it. The O.P. No. 3 wrongly diagnosed it as ‘a closed fracture lateral condyle of femur-displaced fracture’. On 24.11.1997, under spinal anaesthesia O.P. No. 3 performed ORIF surgery for fracture condyle right femur and placed four 2.5 mm vertical screws. The O.P. No. 3 checked the reduction and fixation.

The complainant alleged that O.P. No. 3 instead of removing the GCT, fixed the screws after reduction of fracture. The patient was discharged on 03.12.1997. Due to the non-removal of GCT, the swelling and pain in right knee was increasing. It was brought to the notice of Dr. Hardikar as and when patient attended the Hardikar Hospital. However, O.P. No. 3 did not pay any attention. Therefore, as a consequence of wrong diagnosis, the complainant suspected something wrong was going on. The pain and swelling in the right knee was gradually increasing. Therefore, on 31.3.1998 he was constrained to undergo medical check-up from Dr. Agroya who took X-ray of right knee and confirmed it as a ‘pathological fracture’ because of pre-existing Giant cell tumour, which was diagnosed by him on 9.10.1997. Therefore, complainant alleged that the diagnosis made by O.P. No. 3 was wrong, it was a wilful negligence committed by all the OPs. Though the patient was unable to walk and do any physical work on his own, the medical officer O.P. No. 4 issued one post-dated fitness certificate (No. 7060) on 08.04.1998 stating that the patient was fit to resume his duty on 29.4.1998.

3.       Complainant further alleged that he incurred substantial expenditure for further treatment for removal of giant cell tumour of right knee. Therefore, due to inadequate manpower and financial hardship, he shifted from Latur to Nagpur. After coming to Nagpur, he consulted few doctors. On 13.5.1998 Dr. Raju Chaudhari at Kamptee (Nagpur) examined the patient and took X-ray of right knee region. He made a diagnosis of old pathological fracture due to GCT and advised for further treatment by curating and bone grafting.

4.       Thereafter, on 25.5.1998, the patient approached OPD at the Government Medical College and Hospital, Nagpur (for short ‘GMC’). The doctors at GMC after going through all previous X-rays opined that a lytic lesion in lateral condyle extending into metaphysis up to sub-condylar region, and confirmed it as an old pathological fracture.  The patient got admitted in GMC on 01.06.1998 and was operated on 6.6.1998 for removal of GCT. The patient was discharged on 17.6.1998. He obtained the medical record along with the Histo-pathology report from GMC on 21.07.1999.

Defence:

5.       The OPs filed their respective written versions and the evidence by the way of affidavits. They denied all the allegations of complainant. The preliminary objection was that the complaint was filed beyond the period of limitation without any cause of action.  There was neither negligence nor wilful deficiency during the diagnosis and carrying out the ORIF surgery. The O.P. No. 3 denied that, the complainant shown him “previous two X-rays”, as it was totally false. The X-rays taken at O.P. No. 2 hospital did not show evidence of “Pathological Fracture”. The history recorded in Hardikar Hospital clearly establishes the standard of care and treatment given to the patient. Even during the surgery, no signs of pathological fracture were seen, therefore ORIF was done with four 2.5 mm screws. During the follow up after the operation, there was no pain or swelling of right knee. The patient wanted to avoid to go on tour immediately, therefore at the request of patient the medical officer of O.P. No. 2 hospital  issued the certificate dated 08.04.1998, that he will resume to the work after a period of three weeks, i.e.  to return to work on April 29, 1998. He was allowed to resume only for sedentary work.  According to Dr. Hardikar (O.P. No. 3) it was the case of fracture, and the features were not suggestive of any pathological fracture. The X-rays’ did not reveal any existence of “Giant Cell tumour”.  There was no negligence while conducting the surgical procedure (ORIF) on the patient. It was further submitted that on the contrary, the complainant had intentionally concealed the details of his past treatment taken for the “right knee”. He did not show any earlier X-rays to the O.P. No. 3 before starting the surgery (ORIF). The complainant himself was at fault and he was solely responsible.

6.       The complainant brought on record the certificates issued by three doctors to support his case. According to the O.P.(s) those were just prescriptions and clinical findings given by the doctors. One prescription issued by Dr. Raju Choudhari, where nothing was conclusively mentioned about either pathological fracture or the Giant cell tumour. The 2^nd certificate/opinion issued by Dr. Ratan Roy was on the basis of X-rays taken during 9.10.1997 to 13.10.1998. He neither confirmed about existence of Giant cell tumour nor suggested for any surgery.  The third opinion from Dr. Vikram Marwah was similar to the opinion of Dr. Ratan Roy. None of the consultants had given any opinion or made comparison of earlier X-rays and X-rays taken at O.P. No. 2 Hospital. Therefore, such opinions shall not be accepted as a piece of evidence and had no probative value. Thus, the complainant made very casual and cavalier allegations without any supportive evidence. The allegations of complainant about the wrong diagnosis and improper surgery are totally baseless and unsustainable on facts and in law.

Arguments:

7.       Heard the arguments at length from the learned counsel for both sides. Both sides reiterated their respective affidavits of evidence and the medical record. The learned counsel for OPs submitted that the complaint was filed beyond the period of limitation without any cause of action, however learned counsel for the complainant submitted that the cause of action firstly arose on August 1998 when reply to the legal notice was sent by the OPs.  Learned counsel for OPs further submitted that the complainant in their support did not produce any expert opinion on the   X-rays. Also, nothing was mentioned in the legal notice   about the old X-rays were shown to O.P. No. 3 at the time of admission to O.P. No. 2 hospital or prior to the operation. Therefore, the Complainant has made out a concocted story which is far away from truth. He further argued that at the time of discharge the O.P. No. 3 informed the complainant about the presence of a small suspicious lytic shadow seen in last postoperative X-ray of right knee joint and informed about the need for further follow-up. The patient was also asked to come immediately in case of aggravation of any symptoms. However, after 8.4.1998 i.e. the date of discharge from O.P. No. 2 hospital the complainant did not came for follow up within a month or complained for any pain or swelling around operated knee. The O.P. No. 3 adopted standard method of treatment in case of fracture of right later condyle of femur. There was no negligence.

Observations / Findings:

8.       We have perused the entire medical record i.e. prescriptions of Dr. Araogya, Dr. Hajgude, the O.P. No. 2 hospital treatment record including the x-ray reports and also perused the consultation slips (prescriptions) of three orthopedicians who examined the patient and the GMC treatment record and histopathology report. 

9.       Before adverting to the merit in this case, we feel it necessary to go through the chronological history of this case from year 1998 to 2014. It is apparent from the entire record that since year 1998 to 2014 this complaint travelled between the District Forum to State Commission and then to the National Commission. The relevant orders passed during the proceedings between 1998 to 2014 are reproduced below:

10.1: 1^st Complaint before the State Commission:

On 10.12.1998, first Complaint No. 457/98 was filed in Maharashtra State   Commission  and claimed Rs. 20 lakh + interest. The complainant gave his break-up of his claims against the OPs. amounting to Rs. 64,27,312/-.

Since the claim exceeds pecuniary jurisdiction of State Commission, the complaint was returned to file before appropriate forum vide its Order dated 24.11.2000. It reads as below:

24.11.2000

Per Justice M.S. Rane, President

Our attention has been drawn to the prayer clause of No. 14 of the complaint. The complainants have claimed sum of Rs. 20 Lakhs with 18% interest from 21.11.97 the complaint has been filed on 10.12.98. So the claim made by the complainant is to reach 20 lakhs + interest on the said amount 21.11.97 to 10.12.98 and if the interest is computed the claim will exceed Rs. 20 lakhs which is beyond the pecuniary jurisdiction of this Commission.

Furthermore, in page number 13 of the complaint in para 15, the complainant has given brake ups of his claims against O.P. amounting into Rs. 64,27,312/- this would show that the complainants were aware of the pecuniary claim against the opposite party. It is required to be stated that the complainants have moved an application for amendment to the complaint but even after allowing the said application, the position, as explained above will not get retrieved. Hence the following order.

                                              O R D E R

Since the claim in the complaint exceeds pecuniary jurisdiction of this Court, the complaint allowed to be returned to the complainant for being presented before the appropriate forum.

Hence the complainant is allowed to withdraw the complaint. We order to return the complaint to the complainant or his authorized agent or his Advocate on record and office shall hand over the proceedings in the complaint and for that purpose matter shall be placed before the Registrar on 11.12.2000. The complainant shall arrange to receive the complaint on that day. Four weeks time thereafter is granted to the complainant to approach the appropriate Forum.

          Sd/-                                         Sd/-                                              Sd/-

(Ms. R. N. Vaarhadi)               (V.K. Date)                               (M.S. Rane)

     Member                               Member                                         Member

10.2 : 2^nd Complaint before the National Commission.

Thereafter complainant filed Original Petition No. 3 of 2001 on 30.09.2002 before this (National Commission).

It was observed that, the complainant wanted to rationalise his excess claims made under para 3.17 of his complaint, therefore, the complaint was dismissed as withdrawn with liberty to the complainant to approach civil court or any other forum for redressal of his grievances. The Order of National Commission dated 30.09.2002 reads as below:

30.09.2002

O R D E R

Counsel for the complainant states that there are certain excess claims under para 3.17 Clause I, J & j which he wants to rationalize. That will have effect of Illegible reducing the amount of claim. Counsel states that he will amend this Illegible and allowed to withdraw this complaint with permission to file it before the Court or Forum as may be considered appropriate.

That the light of this statement, it is not necessary for us to pronounce on the Illegible limitation or other points which were raised by this Commission in its Illegible 2.1.2002. This complaint is dismissed as withdraw with liberty to the complainant to approach Civil Court or any other forum for redressal of his grievance. In case a suit is filed he will be entitled to apply for exclusion of time, when the matter was pending here, under Section 14 of the Limitation Act in view of the judgment of the Hon’ble Supreme Court in the case of Laxmi Engineering Works Vs. P.S.G. industrial Institute [(1955) 3 SCC 583].      

10.3:  3^rd Complaint before State Commission :

On 18.11.2002 the complainant again approached Maharashtra State Commission by filing Complaint no. 378/2002  with the prayer of compensation for Rs. 19,99,999/-. The State Commission dismissed the complaint on 26.02.2004.  The Order reads as follows:-

O R D E R

(Dated 26^th February, 2004)

Per Justice M. S. Rane, Hon’ ble President

This matter was placed before us on 27/3/2003 when we passed the following order:-

          “Mr. V. S. Bhande – Advocate for the complainant.

We have perused the particulars of claim, which appears to be unsupported by any credible evidence. Claim is made to the extent of Rs. 19,99,999/- just a rupee less than pecuniary jurisdiction of this Commission. Claim appears to be highly inflated. We are granting 4 weeks’ time from today i.e. upto 24.4.03 to the complainant to reconsider the position.”

Nothing has been done and today the complainant has changed his Advocate. We have shown the order passed. It appears that the complainant has claimed inflated damages to the extent as is the case without support of requisite data as no filing fees is payable in disputes before Consumer Fora.

We wish to state that in view of the judgment of the Supreme Court in the case of Charan Singh Vs. Healing Touch Hospital & others Reported in the Supreme Court Cases (2000) 7 SCC 688, which requires the party claiming damages / compensation to furnish the requisite particulars as also credible evidence in support thereof, in our view, requirements of the ratio of the said judgment are not fulfilled by the complainant despite giving ample opportunity.

That being so, we proceed to dismiss the complaint.

                                              O R D E R

1.       Complaint stands dismissed for the reasons as above.

2.       No order as to costs.

3.       Copies of the order herein to be furnished to the parties.

4.       It is however certified that this dismissal shall not operate as an       impediment to re-file the complaint on same cause of action             before concerned Forum on valuing the claim rationally and realistically and we provide four weeks time from today for the same.

CERTIFIED TRUE COPY

          Sd/-                                                     Sd/-                                   Sd/-

      Registrar                                    (R.N. Varhadi)                      (M.S. Rane)

State Commission                                          Member                                 Member

10.4 : First Appeal before the National Commission

          Being aggrieved by the order of State Commission [8(3)], the complainant filed first appeal no. 99 of 2004 before the National Commission. Vide Order dated 17.02.2005, the National Commission directed the parties to appear before the District Consumer Forum at Pune.

The Order of the NCDRC reads as below:

17.02.2005

O R D E R

The State Commission by judgment and order dated 26.02.04 dismissed the complaint on the ground that claim was for inflated damages without support of requisite data as no filing fees was payable before the Consumer Fora.

Considering the dispute involved in the matter and the claim of 
Rs. 19,99,999/- the Learned Counsel for the parties agree that the matter be remitted to the District Forum, Pune for deciding it on merits after permitting the parties to lead necessary evidence. Complainant to file necessary documents justifying the claim / damages. Parties to appear before the District forum on 21.03.05 for direction. On that date respondent / opposite party wold file written version. First Appeal is disposed of accordingly.

                                                                                                          Sd/-

                                                                                                (M.B. SHAH)

                                                                                                 PRESIDENT

                                                                                                          Sd/-

                                                                                     (P.D. SHENOY)

                                                                                                    MEMBER

10.5 : 4^th  Complaint before the District Forum

On 26.04.2005 the complainant filed a complaint No PDF/2005/111 before the   District Consumer Forum, Pune. During the proceedings, the complainant on 21.4.2014  filed an application for enhancement of compensation. The District Forum vide dated 21.04.2014 passed the following Order:

Per-se:        Hon’ble Shri V.P. Utpat, President

1.       Complainant present. The complainant has filed application in the present case for enhancement of compensation. Opposite Party filed written say to the said application. Counsel for Opposite Party present today. Today the complainant by filing another application requested for compensation of Rs. 3,20,18,059/-. Heard arguments of both the parties today. The complainant is praying for enhancement of compensation amount. The said amendment does not come within the jurisdiction of this Consumer Forum.  Therefore, the present complaint is returned to the complainant for foiling before proper Court. The case is closed.

2)      No order as to costs.

3)      The bunches given for Hon’ble Members shall be taken back by both the parties within one months from the date of order, otherwise bunches will be destroyed.

          Copy of order be sent to both the parties free of costs.

Place: Pune

Date: 21/4/2014                 

     Sd/-                                                                    Sd/-

(Gita S. Ghatge)                                                     (V.P.Utpat)

       Member                                                                  President

10.6 : 5^th  Complaint before the National Commission

Thereafter, the complainant filed the instant Complainant C.C. No. 151 of 2014 on 20.05.2014 before this Commission claiming compensation of Rs. 3,20,18,059/- with 12% interest.

The chronology in tabular form of the complaints filed by the complainant is reproduced below: 

Conclusion:

11.     We take note of the chronological history of the complaints filed before the three consumer protection fora, as summed-up afore.

12.     The surgery was performed on 24.11.1997. The period of limitation to file a complaint is two years from the date on which the cause of action arose. The chronological history of the complaints filed before the three consumer protection fora speaks for itself. Mere perusal of the chronology shows the conduct of the complainant. However, in reference to the contention of the OPs that the complaint before this Commission is barred by limitation, we, in the interest of justice, to adjudge the complaint of alleged medical negligence on merit in the forum of original jurisdiction i.e. this Commission, give the benefit to the complainant and treat this as a continuing cause of action, overlook the chronological conduct of his case, overlook the (self-evident) aspects of ‘dilatory tactics’ and ‘forum hunting’, and condone the delay, if any.

13.     On merit, on careful perusal of medical record (annexure 12), it shows that on 24.11.1997 under spinal anaesthesia- ORIF of fracture lateral condyle of right femur with four 2.5 mm cortical screw was performed. Above knee (AK) cylinder cast was applied. Therefore, it is clear that the complainant never narrated his past history or shown the previous X-rays to O.P. No. 3.

On 3.12.1997- patient was discharged

On 10.12.1997- Dr. S Prakash (O.P. No. 4) examined the patient and removed stitches, wound healing noted.

On 05.01.1998 –X ray showed implant in satisfactory position.

On 06.02.1998 the AK cast was removed by O.P. No. 4, patient was walking and the patient called for revisit after one month.

However, patient came to O.P. No. 2 hospital on 08.04.1998 to get a fitness certificate.   

14.     We further note from the counter affidavit filed by the OPs that, on 08.04.1998, the patient went to O.P. No. 2 hospital to collect the fitness certificate. The doctor, after examination, informed the complainant that in the last post-operative X-ray he noted a small suspicious lytic shadow and needed further observation. At that time the patient did not complain of any pain or swelling in his operated knee. No doctor would arrive for a definite diagnosis of GCT on the basis of any small shadow on x-ray without the symptoms like knee pain or swelling.  Such may be some times error of judgment which is not negligence.  The patient was perfectly alright except for occasional pain in the knee joint after exercise. In our view the complainant misunderstood about the tumour and it was misconception. After 08.04.1998 the patient never came for follow-up to O.P. No. 2 hospital.

15.     We have gone through the standard medical books viz Campbell’s Operative Orthopedics and Anderson’s Pathology to know about the treatment of fracture and pathology of Giant cell tumour of bone.

Most giant cell tumours occur in patients between 20 and 40 years of age. Rarely do they occur in children or in adults older than 65 years of age. They occur slightly more often in females. In some cases, it has been found that the presentation of such tumour varies from person to person.   

They are quite rare, occurring in only about one out of every one million people per year. The Giant cell tumour is a type of benign (noncancerous) tumour that grows at the ends of the body's long bones; they can grow quickly and destroy bone close to a joint. Most often, the tumours develop at the lower end of the femur (thigh bone) or upper end of the tibia (shin bone), close to the knee joint. Although GCTs are not cancerous, they are aggressive and can destroy the surrounding bone. Treatment for a GCT almost always involves surgery to remove the tumour and prevent damage to the bone near the affected joint. Without treatment, a GCT will continue to grow and destroy the surrounding bone, so treatment is always necessary. The goals of treatment are to remove the tumour and prevent damage to the bone. However, there are some cases in which a tumour cannot be removed safely or effectively through surgery and the doctor may recommend nonsurgical treatment like radiation, tumour embolization and medication.

16.     Long-bone fractures are common in the field of orthopaedic trauma and require careful treatment to avoid refractory disabilities. All fractures may be treated with non-operative or operative methods according to individual advantages and disadvantages. Thus, the principles of fracture management are reduction, immobilization, and rehabilitation. Typically, a femoral condyle fractures the knee and leg will be immobilized to prevent further injury from occurring. Then, the patient will be placed in a cast to allow the bones to heal. If a condyle fracture happens in the femur, the treating doctor may repair the injury by placing metal screws in the bone. This holds the fracture together until it is completely healed. Casts and splints are usually a lot harder to use on the upper leg. For more serious damage to the bone, a replacement bone or bone portion may be required. Thus, the goal of fracture treatment is to obtain union of the fracture in the most anatomical position compatible with maximal functional return of the extremity.

17.     It is pertinent to note that in the instant case on 21.11.1997 at the time of admission to O.P. No. 2 hospital, the patient presented with fresh fracture, severe pain and swelling in right knee due to history of fall. The X-rays taken at O.P. No. 2 hospital revealed ‘intra articular fracture of the lateral condyle of the right femur displaced postero- superiorly’. Also showed areas of sclerosis, which was suggestive of earlier fracture. However the X-rays did not show any evidence of GCT. In our view the first goal of the treating doctor – i.e. orthopedician (O.P. No. 3) was pain relief and plan for treatment of stabilisation of fractured bones. Therefore operation of open reduction and internal fixation was necessary. It was the standard treatment of such fracture. Moreover, during surgery no abnormal tissue was noticed to suspect any tumour. Therefore in the instant case ORIF was an accepted method of standard treatment.

18.     The standards expected from any medical practitioner in an emergency are always lower than the standards expected from him in an ideal setting. The Hon'ble Supreme Court in Jacob Mathew v. State of Punjab and Anr. 2005 (3) CPR 70 has stated:

“A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. …A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”

It has been stated that:

“A mere deviation from normal professional practice is not necessarily evidence of negligence.

• A mere accident is not evidence of negligence

• An error of judgment on the part of a professional is not negligence per se

• No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake… Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor”

   

  19.     Based on the foregoing discussion, on merit, we find that the complaint is without any cogent and convincing material or medical literature to substantiate the allegations, the allegations against the hospital and the treating doctors are unsustainable. In the given facts and the entire evidence adduced before us, it is not feasible to attribute negligence / deficiency on the OP hospital and doctors, it is difficult to conclusively establish medical negligence / deficiency in service on the OP hospital and doctors.

  20.     The complaint fails.