Chandigarh

DF-II

CC/92/2016

Akash (Minor) - Complainant(s)

Versus

The Post Graduate Institute of Medical Education and Reserach - Opp.Party(s)

Sh. Munish KUmar Advocate

17 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	92 of 2016
Date  of  Institution	:	05.02.2016
Date   of   Decision	:	17.01.2019

 

 

 

 

 

Akash (Minor) son of Sh.Daljit Singh, represented through his father, legal guardian, natural father and next friend Sh.Daljit Singh, R/o H.No.524-A, Indra Nagar, Tehsil Nangal, Nangal Township, District Rupnagar, Punjab.    

 

             …..Complainant

 

VERSUS

 

1]  The Post Graduate Institute of Medical Education and Research Chandigarh through its Director/Medical Superintendent.

 

2]  The Head of Department (Ortho), Post Graduate Institute of Medical Education and Research, Chandigarh.

 

3]  Dr.Parteek, Senior Resident, Treating Doctor, deputed in Ortho Department, Post Graduate Institute of Medical Education and Research, Chandigarh

 

4]  Dr.Rahul, Junior Resident, Treating Doctor, deputed in Ortho Department, Post Graduate Institute of Medical Education and Research, Chandigarh

 

5]  Dr.Kunal, Junior Resident, Treating Doctor, deputed in Ortho Department, Post Graduate Institute of Medical Education and Research, Chandigarh

 

 ….. Opposite Parties

 

 

BEFORE: SH.RAJAN DEWAN          PRESIDENT

        MRS.PRITI MALHOTRA      MEMBER

        SH.RAVINDER SINGH       MEMBER

 

 

Argued by :-  Sh.Munish Kumar, Advocate for the complainant.

   Sh.Gaurav Bhardwaj, Adv. for OPs No.1, 2

   OPs No.3, 4 & 5 exparte.

 

RAVINDER SINGH, MEMBER

 

 

         The facts in issue are that the complainant on suffering pain due to hip joint septic, visited Opposite Party NO.1 on 16.7.2014 vide CR No.20140-3494485, whereupon he was attended & treated by OPs NO.3 to 4.  It is averred that despite request, the Opposite Party No.2/Head of Department/Main Consultant did not visited the complainant and checked him. It is also averred that OPs No.3 to 5 opined that the complainant has to be operated upon, but did not take any decision nor their senior doctor ever examined the complainant.  It is stated that Opposite Party NO.3 told that no operation could be conducted upon the complainant due to his low age. It is further averred that the complainant was discharged on 31.8.2014 by Opposite Parties NO.3 to 5 with advice to take medicines and told that the pain suffered by the complainant due to hip joint septic will be cured by the medicines. It is stated that the condition of the complainant was worsen day-by-day, but still the Opposite Parties No.3 to 5 discharged the complainant and prescribed him medicines only.

         It is stated that inspite of taking medicines, as advised, no pain and suffering was demised, rather the condition of the complainant worsened. As such, the complainant again visited the OP Institute and on 18.10.2014 he was finally checked up by Prof.Raj Bahadur, Head Consultant of Ortho, who was shocked to see the condition of the complainant, which was deteriorated due to wrong treatment and medicines as well as non-providing of timely treatment by OPs NO.3 to 5. It is also stated that considering the seriousness about the condition of the complainant, Prof.Raj Bahadur handed over the case of the complainant to Dr.Nirmal Raj and thereafter, under the guidance of Prof.Raj Bahadur as well as Dr.Nirmal Raj, the surgery as conducted upon the complainant and then he was discharged on 16.12.2014. 

         It is submitted that after surgery, the condition of the complainant was recovered, but his left hip joint was totally damaged, as the same failed to function, due to which the complainant is unable to walk and became handicapped & permanent disabled.  It is also submitted that as the Opposite Parties NO.3 to 5 failed to provide essential and proper treatment to the complainant, required at that time and wrongly given the medicines, due to which the gap between the knee with the joints increased and the left hip joint of the complainant totally failed to function. It is further submitted that the OPs No.3 to 5 never consulted any senior doctor, failed to give proper & timely treatment, as a result, the condition of the complainant worsen and his left hip joint became non-functional and could not be recovered even after surgery.  It is pleaded that the complainant was a brilliant student and keen to participate in sports activities, but due to the wrong treatment given by OPs No.3 to 5 he suffered immense pain, sufferings and became handicapped. It is also pleaded that the failure of the Opposite Parties to advise the complainant to be admitted for required treatment/surgery, not referring him for proper & essential treatment, left him in critical condition and failure to take expert opinion from senior consultant, amounts to gross negligence on the part of OPs. Hence, this complaint has been filed.

 

2]       The Opposite Parties NO.1 & 2 filed reply and while admitting the factual matrix of the case, stated that the complainant was brought to Orthopedic Outpatient Department on 16.7.2014 with complaint of fever, pain in left thigh, hip and knee and he was seen by Prof. Raj Bahadur and advised MRI.  The report of MRI provided was “Bone marrow edema in upper metaphysic [L] of femoral neck with [L] hip joint effusion and diffuse myositis. Cause – most likely Acute Osteomyelitis”.  It is stated that the parents of the complainant were explained in detail about the nature of illness, the need for prolonged antibiotics, surgeries if needed and also the prognosis.  Thereafter, the complainant, as per instructions of Prof. Raj Bahadur, was put on IV antibiotics, skin traction was applied with knee kept in flexion and was completely evaluated with x-rays, ultrasound, blood investigations, blood culture, urine routine and microscopy etc. It is also stated that after some duration, the child started to respond to the treatment being provided, the fever came down, the pains improved, his food intake improved and for persisting knee pain and mild effusion, an attempt to aspirate the knee joint was made by the senior resident concerned but there was a dry tap.  It is further stated that an option for going ahead with surgery was kept open but as the child was medically unfit in view of the poor hemoglobin level and low PTI and also considering that the parents requested that to go ahead with surgery only if it was dire emergency as their child was already weak, a decision to defer the surgical intervention was taken and the patient was continued on the standard protocol of antibiotics and traction.  It is submitted that the patient went for follow-up as advised to Prof. Raj Bahadur’s OPD on 24.9.2014 and there he was examined by Dr.Siddharth, Senior Resident, posted and the case was seen by Prof. Raj Bahadur himself and the patient was advised skin traction, tablet Augmentin, tablet Ultracet and asked to bring MRI for review.  It is also submitted that the patient was re-admitted by Prof.Raj Bahadur at a later date and the patient was operated as the patient’s condition might have necessitated a surgical intervention.  It is further submitted that the patient was kept on long term antibiotics after the surgery.  It is stated that there was some disability due to the illness, which was unfortunate, but is something which no doctor can guarantee of avoiding during treatment of infections of bones and joints. The surgery was recommended considering the necessity of surgical intervention, but that necessarily does not mean that the earlier treatment was wrong in anyway.  It is specifically denied that the treating doctor failed to provide a proper essential and proper treatment to the complainant. Denying all other allegations and pleading no deficiency in service or negligence, the OPs have prayed for dismissal of the complaint. 

         Opposite Party NO.3 did not turn up despite service of notice sent through regd. post on 12.2.2016, hence he was proceeded exparte.

         The OPs NO.4 & 5 did not turn despite service of notice through publication, hence they were proceeded exparte vide order dated 21.9.2016.

 

3]      Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

5]       The complainant took treatment from PGI, Chandigarh with effect from 16.7.2014 on account of suffering from Hip Joint Septic and Left Leg Knee problem. 

 

6]       The main grudge of the complainant is that Dr.Parteek, Senior Resident along with Dr.Rahul, Junior Resident & Dr.Kunal, Junior Resident only attended him and never consulted Senior Doctors and as such failed to give proper treatment at their own, which aggravated the problem of the complainant.  It has been alleged in the complaint that he first time consulted Prof.Dr.Raj Bahadur, Head of Department of Orthopedic, on 18.10.2014, who keeping in view the gravity of the disease, handed over the case of the complainant to Prof. Dr.Nirmal Raj, and accordingly, the surgery was conducted on 01.11.2014 and he was discharged on 16.12.2014 after the treatment. 

 

7]       The complainant has not come up with any specific or attributed any specific allegation regarding deficiency of any professional service on the part of Dr.Parteek, Dr.Rahul & Dr.Kunal, impleaded as OPs No.3 to 5. Only because of some of treatment given by OPs No.3 to 5 under instruction from Senior Consultant Prof.Raj Bahadur and the complainant could not recover fully from his ailment, that ipso-facto is not adequate to held the doctors/OPs NO.3 to 5 negligent in any manner. 

         As per reply filed by OPs No.1 & 2, Prof.Raj Bahadur himself seen the complainant when he was brought to the Orthopedic Outpatient Department on 16.7.2014 by his parents with complaint of fever, pain in the left thigh, hip and knee.  The complainant was attended and treated by Prof. Raj Bahadur, Head of Orthopedic Department, PGI, himself and also by doctors under his guidance and instructions.  The doctors have performed their duties and done nothing wrong. 

 

8]       The matter in question was referred to Government Medical College & Hospital, Sector 32, Chandigarh to constitute a Board of Senior Medical Officers and to examine the present case and submit the report with regard to any deficiency in service or negligence on the part of PGI and its doctor, if any, with respect to the contentions as raised in the present complaint. 

 

9]       The Medical Board consisting of Dr.Sudhir Garg, Chairman, Dr.P.N.Gupta and Dr.Sandeep Gupta, Members was accordingly constituted, who after examining the medical record of PGI, Chandigarh in respect of the treatment of the complainant, has opined as under:-

“The board is of the opinion that treatment given to the patient during both the admissions at PGIMER, Chandigarh, was on accepted guidelines and it may further noted that this disease can result in permanent disability even after treatment.”

 

10]      It is pertinent to mention here that when a patient visit to a doctor for treatment of any disease, then it is the prerogative of the doctor itself to choose the best treatment for his patient.  The patient cannot force his own views/opinion about the medical treatment upon the doctor on his treatment. 

11]      As held by the Hon’ble Supreme Court of India in AIR 1969 SC 128 – Dr.Laxman Balkrishana vs Dr.Trimbak, the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way.   

12]      The Hon’ble Supreme Court in Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & other 2010(2)CLT 282 held:-

‘Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability with due care and caution’

13]      In Martin F.D.’Souza Vs. Mohd. Ishfaq, (1) 2009 CPJ 32 (SC), it was held that sometimes despite the best efforts and treatment, the doctor fails, that does not mean that the doctor/surgeon must be held to be guilty of medical negligence.  It was further held that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing the reasonable course of treatment in preference to another.  

14]      The Hon’ble National Commission in case of Manteswar vs. Dr. Sumit Banerjee & anr. and Megha Eye Centre 2016(3) Law Herald (SC) 2296 held as under:-

“ No cure is not a negligence- The doctor should not be punished for, if anything goes wrong- It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish- Things have gone wrong and, therefore, somebody must be found to answer for it- A professional deserves total protection.”  

         The duties performed by doctors are sacrosanct and as such cannot be condemned on misconceived facts and notions.

15]      Keeping into consideration the entire facts & circumstances of the case as well as the law on the subject matter, we are of the opinion that no case of deficiency in service or negligence is made out on the part of OPs and as such, the complaint being devoid of merit, is hereby dismissed.

        Certified copy of this order be sent to the parties, free of cost. File be consigned to record room.

Announced

17^th January, 2019                                                                  Sd/-

 (RAJAN DEWAN)

PRESIDENT

                                                                                               

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER