National Consumer Disputes Redressal
Ritu Garg vs Dr. Vineet Sharma & Anr. on 2 December, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2074 OF 2015 (Against the Order dated 16/03/2015 in Appeal No. 47/2015 of the State Commission Chandigarh) 1. RITU GARG WIFE OF RAMAN GARG, R/O KOTHI NO.11 SECTOR 27-A, CHANDIGARH ...........Petitioner(s) Versus 1. DR. VINEET SHARMA & ANR. R/O HOUSE NO.3 SECTOR 19-A, CHANDIGARH 2. UNITED INDIA INSURANCE COMPANY LIMITED 54 JANPATH. CONNAUGHT PLACE NEW DELHI ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Bharat Bhushan, Advocate For the Respondent : For the respondent No.1 : Mr. K.G. Sharma, Advocate For the respondent No.2 : Mr. Naveen Kumar, Advocate Dated : 02 Dec 2015 ORDER DR. S. M. KANTIKAR, MEMBER
1. For the reasons detailed in the application for condonation of delay we condone the delay of 45 days.
2. The petitioner/complainant-Ritu Garg's son, aged about 7 years old (herein referred as "patient"), suffered injury to his right elbow while playing in the school. She took her son to OP1, Dr. Vineet Sharma. The x-ray was taken outside, shown to OP1 but he did not evaluate it properly and did not check the injury. He merely advised bed rest for three to five days and put a slab as well as limb elevation/active finger movement along with pain killers. After a week the pain in the arm did not reduce. She again visited OP1. He removed the slab and crape bandage was applied. He further continued the pain killers. Even after one month there was no change in the condition of patient. Hence, she again contacted OP1 on 06.08.2011, who took x-ray at his own clinic. OP1 did not disclose anything regarding seriousness of injury. The OP1 misbehaved with the complainant and spoke rudely with her and her husband. Thereafter, suspecting malafide, the complainant took second opinion from Dr. S.P. Singh, who disclosed that, because of delay in treatment of subluxation of elbow joint the condition became worst. He referred the patient to Dr. S. Ravjeet who opined the same and further referred the patient to Government Medical College & Hospital, Chandigarh (GMCH-32) or PGI. The surgery was performed at PGIMS, Chandigarh. Therefore, alleging medical negligence, the complainant filed a complaint before the Chandigarh District Forum.
3. In the District Forum, one Member gave dissenting order that there was no deficiency in service and negligence. The District Forum partly allowed the complaint on majority basis and held the OP1 guilty of negligence and awarded compensation of Rs.50,000/- against the OPs, jointly and severally, along with costs of Rs.10,000/- towards litigation expenses.
4. Aggrieved by the order of the District Forum, both the parties filed separate first appeals before the State Commission, Chandigarh. The State Commission allowed the appeal filed by OP1 and consequently dismissed the complaint.
5. Aggrieved by the order of the State Commission the complainant preferred this revision petition.
6. We have heard the counsel for both the parties. The counsel for the petitioner vehemently argued that the OP did not evaluate the first x-ray properly in which the dislocation was clear. Instead of repositioning the interposed annular ligament in its normal site, the OP simply applied slab on forearm to the patient. It was wrong treatment. Therefore, it was deficiency for which the complainant has to incur huge expenses for the treatment of her son in different hospitals.
7. The rival argument on behalf of OP1 is that the complaint is not maintainable because the complainant has not produced the expert opinion. The OP1 after thorough clinical examination of the injury and evaluation of x-ray recommended the proper treatment and put elbow slab 90 degrees elbow flexion and full supination. The patient was sent home in stable condition with medication and follow up. The patient was brought again on 06.08.2011 for the pain. Therefore, x-ray was taken; it revealed anterior subluxation of radial head which was duly explained to the complainant. Therefore, there was no negligence. The counsel brought our attention to the expert opinion from GMCH, Sector 32, Chandigarh, it is reproduced as under;
"After, evaluation of the submitted records, the committee is of the view as follows:-
That the patient Shivam Garg sustained injury to (R) elbow on 05.07.2011. This was initially diagnosed as "No Bone Injury", as mentioned by Dr. Vineet Sharma in his prescription slip. However, on subsequent follow up & check of x-rays on 06.08.2011, Dr. Vineet Sharma himself diagnosed "Anterior Subluxation of Radial Head" which was confirmed to be "Dislocation of Radial Head" on evaluation by clinicians at other centers."
8. We have perused the medical record on the file. The prescription slip of OP1 revealed the x-ray finding as NBI i.e. No Bone Injury. For this, OP gave pain killers and advised rest for three to five days. He put AF slab, advised limb elevation and active finger movements. The prescription of OP did not say anything about surgical intervention.
9. The prescription of Dr. Ravjit, another orthopedic surgeon dated 06.08.2011 recorded under the caption "on 5.7.2011 clinic-radiologically as anterior medial radial head dislocation (individual/partial subluxation)." Therefore, it is clear that the OP1 failed to diagnose the dislocation at the initial stage and put the slab only. This is a deficiency in service. Therefore, the expert opinion will not come for rescue to the OP1.
10. No doubt as per medical literature from the textbook of Waston Jones, 'Fractures & Joint Injuries' the dislocation of radial head associated with fracture of ulna is commonly missed during physical examination. It is difficult to diagnose subluxation at initial stage of injury in the children. But, in the instant case, Dr. Rajveet diagnosed it from initial x-ray which OP1 failed to diagnose. It is pertinent to note that the patient visited the OP on 12.07.2011. The slab was removed for assessment but no check x-ray was taken for the complainant's pain. The OP did not produce cogent evidence to prove that the crape bandage was advised on 12.07.2011. The medical record of OP1 is devoid of certain details. Due to delay in diagnosis of subluxation at the initial stage the child suffered for 1½ month, finally got operated at GMCH, Chandigarh for ulnar osteotomy and radial head annular ligament reconstruction on 19.08.2011.
11. What constitutes medical negligence is discussed in several judgments. In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning stated that:
"a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
The Judgment of House of Lords/English Courts in Whitehouse vs. Jordan [(1981)1 All ER 267] ruled that, "The true position that an error of judgment may or may not be negligent it depends on the nature of the error. If it is not one that would not have been made by a reasonable competent professional man professing to have the standards and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence, if on the other hand, it is an error if such a man, acting with ordinary care, might have made, than it is not negligence".
In the instant case the OP1 failed in Standard of Care to examine and diagnose the patient at the initial stage. This case was not complicated one, it was simple case of wrong treatment. Our view dovetails from the authority of the Supreme Court in V. Krishnakumar Vs. State of Tamil Nadu & Ors., 2015 AIR (SCW) 4283, wherein the Hon'ble Supreme Court observed that the case was not complicated which required expert opinion as evidence.
12. On the basis of the foregoing discussion, we are of the considered view that it was a case of delayed diagnosis which caused suffering in the child and subsequent surgery for the cure. Therefore, the complainant deserves proper compensation. Therefore, we set aside the order passed by the State Commission and restore the order passed by the District Forum. The OP shall comply with this order within 60 days otherwise the entire awarded amount will carry further interest at the rate of 9% per annum till its realization.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER