State Consumer Disputes Redressal Commission
Ruchi Malhotra vs New Delhi Institution Of Management on 27 September, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 27-08-2013 First Appeal No. FA-203/09 (Arising from the order dated 03.02.2009 passed by District Consumer Disputes Redressal Forum-III Janakpuri, New Delhi in Complaint Case No. 8901/06) 1. ESI Hospital & Ors. Basaidarapur, Ring Road, Delhi Through its Medical Superintendent 2. ESI Dispensary, Jwalapur, Nangloi, New Delhi-110087 - APPELLANTS Versus 1. Sh. Ravinder Gupta H.No. 8, Jhandewalan Chowk, 110041 2. AIIMS Hospital, Ansari Nagar, Delhi - RESPONDENTS CORAM : S.A.Siddiqui - Member
(Judicial) S.C.Jain - Member
1. Whether reporters of local newspapers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES S.A.Siddiqui, Member (Judicial)
1) Having been aggrieved by impugned judgment and order dt. 03.02.2009 passed by District Consumer Disputes Redressal Forum-III Janakpuri, New Delhi in Complaint Case No. 8901/06, ESI Hospital and Ors V/s Sh. Ravinder Gupta ESI Hospital filed this appeal. Brief facts leading to the filing of this appeal are discussed below:-
2) Complainant/respondents Ms. Neelam suffered an injury in her left hand.
Her father Sh. Ravindre Gupta took her to ESI Dispensary Jwala Puri Mangloi, New Delhi for treatment on 26.04.2006. The doctors at dispensary referred her case to ESI Hospital, Basoi Darapur. On next day i.e. 27.04.2006 she was taken there for treatment, the left hand of Neelam was x-rayed but no fracture was detected. Despite being no fracture, the Doctor at ESI Hospital applied plaster on her left arm as a result thereof neelam suffered various complications later on. On 29.04.2006 swelling was noticed in left arm. Complainant/respondent approached ESI Hospital where plaster was removed and Neelam was admitted there. Puss was drained out and two three operations were carried out during the period of 29.04.2006 to 30.05.2006. The treatment of Neelam continued there for about one month during which she became handicap due to injury in her left arm. On 02.06.2006 x-ray of left hand was taken and erosion of bone of left hand was found thereafter complainant/respondent visited ESI Hospital several times during the period of 12.06.2006 to 05.08.2006. A news item in weekly newspaper Amal Samachar was got published. After publication of news item in newspaper he received several letters from the Medical Department and explanations of treating Doctors were also called for subsequently on 08.11.2006 Ms. Neelams case was referred to AIIMS but without case sheet and other necessary papers. The grievance of the complainant/respondent was that despite being no bone fracture plaster was unnecessarily applied in the left arm of the Neelam with the result puss developed and damages the bone. Therefore complaint was filed before the District Forum for compensation to the tune of Rs. 4,50,000/-.
3) Appellants/OP-1 & 2 jointly filed written statement.
It was admitted by appellants/OPs that on 26.04.2006 Neelam was brought to OP-1, x-rayed but no bone injury was seen.
The case was referred to OP-2 therefore she was taken to OP-2 on 28.04.2006 with history of fall from stair case. The patient was found heavy swelling and tenderness on her left arm and shoulder. This time x-ray showed fracture of neck humorous bone and au Slab-Plaster was applied. It was alleged that the X-ray report were in possession of the complainant/respondent and was deliberately not produced before the District Forum. It was maintained that fresh injury noticed on 28.04.2006 could be on account of massage having been applied which was against medical advice. OP-1 & 2 further maintained that mere plaster application does not cause infection. Infection is in-built and blood borne. Though there was no infection on 29.04.2006 but as a precautionary measure antibiotics were prescribed.
Despite best treatment provided patient showed sign of infection on 01.05.2006, the puss was aspirated.
Again proper treatment was given by way of prompt removal of puss. Neelam was admitted in the Hospital on 29.04.2006 and plaster was removed on the basis of complaint by the patient even thereafter the patient showed sign of infection on 01.05.2006, the puss was aspirated by taking recourse to prompt incision and removal of puss. Neelam had to be operated on 05.05.2006 for re-exploration of wound and multiple drill whole and corrugated drain fix up by removal of dead tissue was done successfully.
Thereafter Neelam was called for regular follow up dressing. On 05.08.2006 x-ray again showed signs of osteomyelistis and I&D was done on priority and the patient was referred to AIIMS Hospital on 01.11.2006. However, patient visited AIIMS on 15.11.2006 and was advised fibular grafting by AIIMS, but the date for the same got delayed considerably.
4) Complainant/respondent filed rejoinder and controverter the assertions made in written statements. Parties filed evidence through affidavits during the pendency of the complaint proceedings. Through an order dt. 04.12.2007 AIIMS was directed to take up proper treatment of Neelam. Thereafter necessary operations were carried out at AIIMS even after Neelam did not improve substantially. Further on the directions of the District Forum complainant/respondent filed x-rays taken at OP-1 & 2 Hospitals on 26.04.2005 and 28.04.2006 which were sent to DDU Hospital for examination and report.
With reference of these statement of Dr. J.Dayal from DDU Hospital was recorded on 24.09.2008. After hearing the parties and considering evidence the Ld. District Forum concerned decreed the complaint and directed OP-2 to pay compensation of Rs. 3,00,000/- which included cost of litigation. No order was passed against OP-3.
5) OP-1 & 2/Appellants felt aggrieved and filed this appeal on the following main grounds besides the others.
6) The impugned order dt. 03.02.2009 was misconceived and erroneous and was liable to be set aside. The patient Neelam came to ortho OPD with history of injury in left arm on 26.04.2006. X-ray showed no bone injury and no plaster was applied. Subsequently she came to causality on 28.04.2006 with the history of fall from staircase and massage patient had miner swelling and tenderness over left arm and was suspected to have fracture of neck humorous bone for which U-Slab plaster was given. The plaster is provided in normal practice to provide rest to the part in case of soft-tissue injuries, fractures. Immobilization in cost promotes pain relief and healing and should be carried out up to four weeks. It was maintained that plaster application does not cause infection of the bone. Bone infection is blood borne. On 29.04.2006 on suspicion of infection, Doctors performed aspiration which was mediated at that time, still patient was admitted and as a precautionary measure antibiotic were given as per standard procedure. This fact was not properly appreciated by the Ld. District Forum. It was further maintained that the plaster application was not only given for fracture but also to given rest and support in case of soft tissue injury and infection.
Application of plaster will not lead to development of infection as its blood borne disease. It cannot aggravate the condition rather it is one of essential treatment provided for such cases. The observation of the Ld. District Forum that application of plaster led to permanent disability was far from truth. Standard medical procedure was adopted which is authenticated by medical literature. It was emphasized that despite correct procedure adopted by Doctors and best treatment given to patient, in some of the cases, infection may still continue and lead to destruction and disability due to poor immune response of child and virulence of organism. Unhygienic living condition may also lead to aggravate infection. Massage given to patient after injury may also aggravate condition.
7) The Ld. Forum has not even called for the opinion of the expert in respect of the treatment for asteomyelistis and has misunderstood the medical procedure adopted as per the standard procedure. Complete case sheet was also not sent for opinion except two x-rays which were sent for examination and report. No opportunity of cross examination was provided to doctor who gave his opinion/evidence.
8) Reply was filed by the respondent/complainant. It was maintained that the impugned judgment and order dt. 03.02.2009 was based best on evidence on record and was legally sound and just. The patient Neelam first visited ESI Dispensary on 26.04.2006 x-ray was taken she was called on next day. On 27.04.2006 plaster was applied which caused swelling and pain to the patient. It was agreed that plaster application by itself does not cause bone infection but application of unnecessary plaster may create complication as a result of which infection may take place. It was maintained that due to improper and negligent treatment of patient at ESI infection developed which led to bone damage in the left arm of the Neelam.
9) Complainant/respondent further maintained that procedure adopted in treatment and medicines given were not questioned. Question being raised was related to development of infection and cause of erosion/damage to bone. Second grievance was related to delay in treatment in AIIMS which was directly attributable to ESI whose officials delayed the submission of necessary papers to AIIMS.
10) Doctors at ESI confirmed presence of infection on 09.05.2006 thereafter treatment continued for about six months in appellants hospital and bone of her left arm was so badly damaged that it became nonfunctional. Had appropriate treatment being given, the situation and condition of the patient would have improved. As a matter of fact operation was carried out by Junior resident doctors. Patient was regularly called for follow up and dressing but the behavior and treatment meted out to complainant/respondent and his daughter Neelam was very bad and sometime rude.
11) It was further maintained that Doctors at ESI found pathological fracture on 01.09.2006 and on 09.09.2006 but why they referred the case to AIIMS on 08.11.2006 is surprising. What Doctors/Specialist at ESI were doing for two months although the left arm bone of Neelam was badly damaged and had become nonfunctional. Even after referring the patient to AIIMS papers/case history were not sent to AIIMS by ESI resulting in unnecessarily delay in treatment at AIIMS.
After directions of the District Forum officials of the ESI rushed to AIIMS with required documents and treatment at AIIMS could start on 08.01.2008. This undue delay in treatment was caused due to gross negligence of the officials of the ESI. According to OP-1 & 2 on 29.04.2006 they did not found evidence of infections but as a precautionary measure anti-biotic was given to the patient. But there is no explanation by OP-1 & 2 as to why swelling and puss developed even after alleged best treatment provided to the patient. It is admitted by OP-1 & 2 that despite best efforts and treatment Neelam showed the signs of infection on 01.05.2006 in the form of puss which was aspirated and prompt drain of puss was carried out. This measure taken by OP-1 & 2 was presumptive and hypothetical it shows that there was no proper diagnosis or treatment at ESI hospital.
12) It is also evident from the steps of the OPs that x-ray on 05.08.2006 at ESI Hospital showed the signs of osteomyelitis due to which & was done and puss was sent for culture sensitivity. Neelam was ultimately referred to AIIMS on 08.11.2006 where pathological fracture neck humorous was diagnosed contrary to the primary diagnosis at ESI hospital who never treated patient for pathological fracture ever since 28.04.2006.
13) We have heard Sh. Bhupesh Narula, Counsel for the Appellant and Sh. P.S.Yadav & Ms. Priyanka Aggarwal, Counsel for the Respondent-1 & 2 respectively.
14) As far as AIIMS is concerned it is a profarma respondent as no relief has been claimed against AIIMS Hospital in the complaint before the District Forum. It was argued on behalf of the appellant that a team of doctors handled the case of Neelam at ESI Hospital. They followed standard procedure while applying plaster. Applying plaster will not by itself generate or create any infection in the blood. It is inbuilt and in any case puss formation was not possible through plaster. In principle it has not been disputed that the mere plaster application does not cause bone infection but application of unnecessary plaster aggravated the situation and provided suitable conditions for bone infection. It is indicative of negligence or carelessness on the part of the appellant in giving right treatment. It is the case of complainant/respondent that improper and negligent treatment given at ESI Hospital led to miner infection which in turn led to badly damaging the bone of the left arm of the Neelam. To reach on a definite conclusion whether medical negligence has been committed by the appellants or not we have to analyze the evidence on record in its proper perspective.
15) X-ray taken by appellants/OPs on 26.04.2006 and 28.04.2006 were sent to DDU Hospital for examination and report Dr. J.Dayal from DDU Hospital made the following statement on 24.09.2008:-
The Skaigram which was sent to me for examination and it has not been done by a skilled Radiographer because to diagnose the fracture in case of injury, two views i.e. A.P. and lateral are taken which are mandatory. In the case only one view i.e., A.P. has been taken by putting the patient in improper position. This x-ray belongs to the child under 11 years of age. This skaigram does not show any suggestive finding of fracture having been suffered by the patient. It is also evident from the skaigram that there was no plaster applied on the left arm of the patient on 28th April when the skaigram was taken.
I have also examined the skaigram of the patient taken on 26th April. Even this skaigram of left arm of the patient does not reveal any fracture in the left arm.
16) The allegation of the complainant/respondent that her daughter had not suffered any fracture in her left arm as alleged by ESI Hospital finds full corroboration from the statement of Dr. J.Dayal and diagnosis at AIIMS. Dr. J.Dayal categorically stated that x-ray was not done by a skilled radiographer.
To diagnose the fracture in case of injury two views i.e. AP and lateral are taken and which is mandatory. In this case only one view i.e. AP was taken and that too by putting the patient in improper position. This skaigram did not show any suggestive finding of fracture.
It was also evident from the sky gram that there was no plaster applied on the left arm of the patient on 28.04.2006 when skaigram of the patient was taken on 26.04.2006, the left arm also did not reveal any fracture. There has been no proper explanation from the appellants/OP side as to why only one view was taken when both AP and lateral view were mandatory while taking x-ray the patient was also put in improper position.
There can be no denial of the fact that ever since 28.04.2006 instead of any improvement in the condition of the left arm of the Ms. Neelam, her condition continued deteriorating and ultimately she had to be sent for further treatment to AIIMS by ESI Hospital. The assertion of the appellant that the best possible treatment was given as per the standard procedure seemed hollow. The continuous deterioration in the condition of the left arm of the Neelam is definitely indicative of negligent treatment on the part of the appellant. Had right treatment been given since beginning when miner infection was detected for the first time, the condition of the patient would have improved but the condition of the patient never improved.
17) It was the allegation of the complainant/respondent that despite there being no fracture on the left arm of his daughter, plaster was applied on her left arm which developed swelling and puss and that his daughter was put to improper treatment as a result of which left arm bone was badly damaged. OP-1 & 2 in their written statement admitted that the x-ray taken on 26.04.2006 showed no bone injury, no plaster was applied. Subsequently complainants daughter was brought on 28.04.2006 with the history of fall from staircase. On 28.04.2006 swelling and tenderness was seen in her left arm. X-ray showed fracture in neck humorous for which U-Slab (plaster) was given. This plea of OP-1 & 2 has been falsified by the expert opinion given in the statement of Dr. J.Dayal who examined x-ray dt. 26.04.2006 and 28.04.2006. The x-ray did not reveal any fracture in the left arm.
The opinion of Dr. J.Dayal H.O.D. Radiology DDU Hospital finds full corroboration from diagnosis at AIIMS. On 28.04.2006 the x-ray did not reveal any fracture is evident from the documents prepared at AIIMS where she was referred due to development of swelling and puss in the left arm. Left arm bone was badly damaged. It was diagnosed in the AIIMS that there was pathological fracture shaft humorous. Pathological fracture develops not because of some injury sustained by fall or otherwise but due to some natural anomalies. OP-1 & 2 again could not explain the proper cause due to which Ms. Neelam after U-Slab plaster given on 28.04.2006 had developed infection of bone.
On 29.04.2006 when admittedly no infection was detected precautionary anti-biotic were given. This was presumptive and precautionary treatment.
18) There was no proper explanation why situation aggravated if proper treatment as per medical standard and procedure was being given. The obvious inference that can be drawn from these facts and circumstances is that OPs were unable to provide satisfactorily treatment which by itself proves negligence on the part of the OPs/appellants. Miner infection gradually led to erosion of bone and further damaged the bone of left arm of Neelam. In our considered view there was no need of any expert opinion in the case.
There are sufficient facts and circumstances available on record which proves insufficient and negligent treatment.
19) The OPs/appellants have made bold statements but could hardly explain as to how the conditions of the bone of the left arm of the Neelam turned from bad to worst. It shows that neither there was any proper diagnosis nor suitable treatment provided. Mere technical pleadings on the part of the appellant/OP could not hold their cause, it is well settled principle of law that consumer courts are not expected to go in technicalities of Civil or Criminal Jurisprudence.
Indian Evidence Act or Criminal Procedure Code are not applicable to proceedings before consumer Courts.
Disputes are to be decided on the Yardstick of reasonableness and probability. Principles of natural justice do apply in full force.
20) In view of the above facts and circumstances and legal position we have come to a definite conclusion that the Ld. District Consumer Forum while passing impugned order dt. 03.02.2009 did not commit any infirmity, irregularity or illegality and the impugned order deserves to be confirmed.
Order
21) Accordingly appeal fails and is dismissed.
22) Impugned judgment and order dt. 03.02.2009 passed in Complaint Case No. 8901/06 is hereby confirmed.
23) Let a copy of this order be provided to the parties free of cost as per rule thereafter file be consigned to record room.
24) The registry is directed to release the FDRs in favour of the appellant.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima