National Consumer Disputes Redressal
Vijender Kumar Sahal vs Dr. K.S. Verma on 21 September, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2047 OF 2014 (Against the Order dated 28/02/2014 in Appeal No. 1884/2009 of the State Commission Uttar Pradesh) 1. VIJENDER KUMAR SAHAL S/O SHRI CHANDRABHAN , R/O VILLAGE NAGAL, POST NAGAL , PARGANA NAGAL, TEHSIL DEOBAND, DISTRICT : SAHARANPUR U.P ...........Petitioner(s) Versus 1. DR. K.S. VERMA C/O K.K HOSPITAL, KISHORE BAGH, OPP SANGAM BANQUET HALL, DELHI ROAD, DISTRICT : SAHARANPUR U.P ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER
For the Petitioner : Mr. Anurag Kishore, Advocate For the Respondent : Mr. Ankit Parhar and Mr. Subhash Tyagi, Advocates
Dated : 21 Sep 2017 ORDER
M. SHREESHA, PRESIDING MEMBER
Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (in short, "the Act"), is to the order dated 28.02.2014, in Appeal No.1884/2009, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, "the State Commission"). By the impugned order, the State Commission allowed the Appeal preferred by the Respondent doctor and set aside the order of the District Consumer Disputes Redressal Forum, Saharanpur (in short, "the District Forum"), and consequently dismissed the Complaint.
2. For the sake of convenience, the Opposite Parties hereinafter referred to as the treating doctor.
3. The brief facts, set out in the Complaint, are that the Complainant was feeling pain in his testis and approached the treating doctor on 12.01.2002 and paid ₹50 for the treatment. It was averred that he was diagnosed to be having Hydrocele and an operation was required to correct the problem. On the advice of the treating doctor, the Complainant got himself admitted on 16.01.2002 and the surgery was performed on the same day. It was averred that the Complainant suffered from continuous pain even after the surgery, for which he was given pain killers and he continued to be under the treatment of the treating doctor till 20.01.2002.
4. It was pleaded that during the treatment, the treating doctor injected pain killers and glucose to the Complainant through a needle in his left hand which got swollen and his fingers turned blue. On 23.01.2002, the Complainant contacted Dr. Praveen Jain, MBBS, MS in surgery who observed that the Complainant's fingers had gangrene and treated him till 29.01.2002. It was averred that thereafter Dr. Praveen Jain advised the Complainant to go for higher treatment and therefore on 05.02.2002, the Complainant approached PGI, Chandigarh, where, the Complainant stated that he was informed by the concerned doctor that the swelling in the fingers was due to giving an injection in the artery of the Complainant. The gangrene which set in required the left hand fingers to be amputated. The Complainant pleaded that it is only on account of the negligence of the treating doctor, while conducting the surgery, on 16.01.2002, that his left hand developed gangrene, for which act he lost the fingers of his left hand and claimed ₹4,00,000/- towards compensation, ₹2,000/- towards cost and other reliefs.
5. The treating doctor filed his Written Version stating that in the present case after conducting the operation on 16.01.2002, for the purpose of injecting glucose, a Cannula was placed on the left hand at the Cubital Fossa meaning on the opposite side of the elbow. It was denied that glucose was injected in the artery. It was pleaded that Cannula is such an instrument that there is no possibility of injecting or piercing in a wrong vein. Intra muscular injections were given to the Complainant through the hip and shoulder to relieve the swelling.
6. All other allegations including the payment of fee of ₹50, the operation expenses of ₹7,000/- and also the averment that pain killers were given through the Cannula were denied. It was pleaded that only medicine for decreasing the swelling was given and that at the time of discharge on 20.01.2002, the Complainant's condition was good and he was advised to come for a review after 3-4 days. But the Complainant did not turn up for the check up and therefore the question of the treating doctor observing any occurrence of gangrene cannot be ascertained. It was pleaded that the treating doctor had successfully performed the Hydrocele operation and there was no negligence on his behalf and denies due to lack of knowledge the subsequent treatment undergone by the Complainant in PGI, Chandigarh.
7. It was pleaded in the Written Version that there was a blockage in the arteries of the Complainant which can be due to Thrombosis or Embolus and denies that gangrene had set in the left hand on account of glucose and pain killers having been injected negligently.
8. The District Forum based on the evidence adduced allowed the Complaint directing the treating doctor to pay an amount of ₹1,00,000/- with interest @ 9% p.a. from the date of filing of the Complaint till the date of realization, together with costs of ₹5,000/-. In the case of default of payment within one month, the amount shall attract interest @ 12% p.a.
9. Aggrieved by the said order, the treating doctor preferred Appeal No. 1884 of 2009 before the State Commission.
10. The State Commission while allowing the Appeal, observed as follows:
" In the present case this fact is not proved that from the operation in question or action taken after that gangrene disease in question started and increased. It is only submitted by the complainant/ respondent that due to wrong injection the needle or glucose by the defendant/ appellant doctor gangrene disease has occurred in this hand, can not be accepted in any manner, because complainant/ respondent could not produced any proof in regard of this version, even though appellant/ defendant doctor has denied clearly the above version and it is not proved in the present case that defendant/ appellant has injected the needle in artery in place of vein, due to which gangrene had occurred and in this manner seeing the facts of the case principle of "Res ipsa Loquitur" is not applicable and respondent has no right of benefit of the case laws produced in the present case by him.
No force is found in the conclusion given by the District Bench and in the present case medical negligence of appellant/ defendant doctor is not proved. So allowing the appeal the judgment/ order passed by the District Bench is liable to be set aside."
11. Both sides have filed their Written Arguments.
12. Learned counsel appearing for the Revision Petitioner submitted that the State Commission has not appreciated the fact that prior to the operation there was no complaint of swelling or pain in the left hand and it was only subsequent to the surgery that there was continuous pain and swelling in his left hand. The Complainant was admitted in the Hospital on 16.01.2002 and remained under the treatment of the treating doctor till 20.01.2002 and had the Complainant been suffering from gangrene prior to this date, it would have been reflected in the patient's history.
13. Learned counsel argued that as the Complainant was under the treatment of the treating doctor, it was his duty to investigate the reason for the pain and swelling having developed in the Complainant's hand. The pain and swelling developed only due to the injected Intravenous fluid through the needle in the left hand. Pain killers Voveran and Tramadol were given to the Complainant which itself shows that they were given for the pain and swelling and that principle of Res Ipsa Loquitur applies in the instant case as the treating doctor did not explain the reason for swelling and pain.
14. Learned counsel for the Respondent submitted that the Complainant was diagnosed with Buerger's Disease which is a rare disease causing skin and tissue to die thereby resulting in gangrene. The Complainant had concealed this fact before the lower fora. The Complainant had failed to place any material on record to support his allegation that the treating doctor administered glucose to the Complainant through injection at the back of his left hand in the artery instead of vein. He submitted that the District Forum has wrongly applied the principle of Res Ipsa Loquitur and held that since the gangrene occurred during the treatment given by the Respondent, it must have been caused due to the negligence of the treating doctor. He vehemently argued that the cause of gangrene was Buerger's Disease and not the treatment rendered by the treating doctor. The treating doctor had properly administered glucose to the Complainant via a Cannula in the vein at the Cubital Fossa and has exercised reasonable degree of care and skill and no negligence can be attributed to him. Learned counsel for the treating doctor relied on the judgements of the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Shantha and Ors., AIR 1996 SC 550 and Jacob Mathew Vs. State of Punjab and Anr., (2005) 6 SCC 1 and submitted that the Supreme Court has laid down that a practitioner must bring to his task a reasonable degree of skill and knowledge and that the treating doctor had taken all precautions necessary for the conduction of surgery and therefore no negligence can be attributed to him.
15. Facts not in dispute are that on 12.01.2002 the Complainant feeling pain in his testis, consulted the treating doctor who diagnosed him to be having Hydrocele. It is also an admitted fact that the treating doctor performed a corrective surgery on the Complainant on 16.01.2002 and gave him post-operative care till 20.01.2002. It is the Complainant's case that he had complained of pain and swelling during this period which he alleges was on account of Intravenous fluids injected through the needle in his left hand. The treatment record dated 12.01.2002 evidences that surgery was conducted on 16.01.2002 and on 19.01.2002 injection Voveran was advised but the same was deleted in the prescription filed here. Pain killers Voveran and Tramadol injections are seen prescribed on 16.01.2002 and 20.01.2002. Therefore, the contention of the treating doctor that no pain killers were given is unsustainable. It is pertinent to note that complaint of pain and swelling has not been recorded and more importantly review after 3-4 days is not reflected in the treatment record, therefore, the argument that though the Complainant was advised to come for review after 3-4 days, but he did not turn up, cannot be sustained. Thereafter, it is the Complainant's case that he sought advice from Dr. Praveen Jain on 23.02.2002 and remained under his treatment till 29.01.2002. The treatment record filed as Annexure P-4 establishes that on 29.01.2002, Dr. Praveen Jain had noted in the patient's history as 'pre gangrene' and treated him till 29.01.2002 and thereafter referred him to PGI, Chandigarh. The Out Patient Ticket, of PGI, Chandigarh dated 05.02.2002, clearly shows that the Complainant had gangrene in the fingers and needed urgent transplant. The patient 's condition was noted as 'case of Pain and blackish discoloration of the left index and middle finger following Intravenous Anesthetic Agent for the operation of Hydrocele on 16.01.2002'. It is pertinent to note that in the operation note dated 15.02.2002, it is clearly recorded as 'Post Arterial Injection' and the notes are reproduced as hereunder:
"Procedure: Planned: Amputation of the distal segment vascularity. Proposed: Debsiment of pulp and skin of distal and middle segment and corner c cross finger flap + SSG."
16. It is apparent from the hospital record that the swelling and bluishness of the fingers resulting in gangrene was on account of the post arterial injection. The contention of the treating doctor that the gangrene was set in on account of Buerger's Disease has not been specifically pleaded in their Written Version filed before the District Forum. It is pertinent to note that the argument of Buerger's Disease was never made before the State Commission in Appeal preferred by the treating doctor and therefore it can be safely construed that this averment does not form part of the pleadings before the fora below. It is only during the final hearing before this Commission in this Revision Petition that Buerger's Disease was pleaded as the cause of gangrene and sought to rely on a documents of PGI, Chandigarh which was not filed before the fora below. The submission of the learned counsel for the treating doctor that PGI, Chandigarh has stated in the discharge summary of July, 2002 that the patient was suffering from Buerger's Disease and that he was a smoker and therefore, gangrene set in cannot be taken into consideration in the absence of any pleading or filing of the said document before the fora below. The patient was 35 years old, non-diabetic and not diagnosed to be of 'high risk' by the treating doctor. It is relevant to mention here that the treating doctor did not advise any pre investigative test in his prescription sheet prior to the conduction of the surgery nor did he explain any reason for the swelling and pain either in his Written Version or in his grounds of Appeal before the State Commission. The Only reason which was given during the course of arguments before this Commission is that the Complainant was suffering from Buerger's Disease, which was not substantiated by any documentary evidence.
17. It is relevant to observe here that the State Commission has dismissed the Complaint on the ground that there was no expert evidence. The State Commission has not appreciated that before forming an opinion that an expert evidence is necessary, the fora must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved without the assistance of expert opinion. The Hon'ble Apex Court in V. Krishna Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513, has laid down that no mechanical approach can be followed by these fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. The Hospital record and the prescriptions evidence that pain killers were given by the treating doctor; gangrene had set in by 23.01.2002 which is only a week after the surgery i.e. 16.01.2002; the Out Patient Ticket of PGI, Chandigarh dated 05.02.2002, which is within 20 days of the date of surgery shows that gangrene had set in, necessitating urgent transplant. The notes of 15.02.2002 depicted with clear drawings of fingers diagnosed the condition as Post Arterial Injection. In the light of this documentary evidence, it is for the treating doctor to explain as to how the swelling and pain has occurred and gangrene has set in within a week of the surgery as laid down by the Hon'ble Supreme Court in Savita Garg Vs. The Director, National Heart Institute, 2004 (8) SCC 56 that the onus of proof shifts to the hospital/ treating doctor who is in a better position to disclose the exact line of treatment rendered to the patient and justify that there was no negligence on their part.
18. In the absence of any such explanation by the treating doctor, it can be stated that he has not discharged his onus as laid down by the Hon'ble Apex Court in the aforenoted case (Supra). To reiterate, the nexus of Buerger's Disease and gangrene was never pleaded either in the Written Version before the District forum or before the State Commission and was argued for the very first time before this Commission. In the absence of any record to that effect, I am of the view that reasonable care and skill ought to be exercised as per the parlance of normal medical practices has not been exercised herein. The patient was not even advised to come for a review as can be seen from the prescription. Keeping in view, the law laid down by the Hon'ble apex court in a Catena of judgements relating to Medical Negligence and also the medical record filed, I am of the view that there is negligence on behalf of the treating doctor in exercising due care and caution post operatively, for which the patient is entitled to a reasonable compensation of ₹1,00,000/- with interest @ 9% p.a. from the date of filing of the Complaint till the date of realization together with costs of ₹25,000/-. The order of the District Forum is restored and it is pertinent to note that the award was not challenged by the Petitioner/ Complainant before the State Commission.
19. In the result, this Revision Petitioner is allowed setting aside the order of the State Commission and restoring the order of the District forum with respect to Compensation. If the amount is not paid within four weeks from the date of receipt of this order, it shall carry interest @ 12% p.a. ...................... M. SHREESHA PRESIDING MEMBER