State Consumer Disputes Redressal Commission
Dr. Shriram S/O Manikrao Masalekar vs Narayan Damodar Kathar on 9 December, 2015
1 F.A..No.:277/2014
Date of filing :19.05.2014
Date of order :09.12.2015
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :277 OF 2014
IN COMPLAINT CASE NO.: 166 OF 2001
DISTRICT CONSUMER FORUM : PARBHANI.
Dr.Shriram Manikrao Maslekar,
Orthopedic Surgeon, Navjivan Hospital,
Station Road, Parbhani, Dist.Parbhani. ...APPELLANT
VERSUS
Narayan Damodhar Katkar,
R/o Manvat, Tq.Manvat,
Dist.Parbhani. ...RESPONDENT.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Smt.Uma S.Bora, Hon`ble Member.
Present : Adv.Mr.S.N.Welankar for appellant, Adv.Mr.N.R.Nakod for respondent.
O R A L JUDGMENT (Delivered on 9th December 2015) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in this appeal is the judgment and order dated 21.4.2014 passed by District Consumer Forum Parbhani partly allowing complainant's claim in C.C.No.166/2001 directing appellant/org.opponent Dr.Shriram Maslekar to pay to the complainant compensation Rs.50,000/- with 9% interest and Rs.2000/- more towards cost of the proceedings.
(For the sake of brevity appellant Dr.Shriram Maslekar is hereinafter referred as opponent doctor and respondent Shri.Narayan Damodhar Kathar as the complainant) 2 F.A..No.:277/2014
2. Brief facts giving rise to this appeal are that:-
Opponent Dr.Maslekar is an Ortho Surgeon having his clinic at Parbhani. He is M.S.(Ortho). In or about the month of Feb.1999, complainant Shri.Narayan Kathar had met with an accident and in the accident his left hand was fractured. Initially he took treatment at Government Hospital and there plaster was applied to his hand. Thereafter on 8th May 1999 he approached opponent Dr.Maslekar for treatment. After taking x-ray opponent Dr.Maslekar found that there was fracture shaft hamerous and got admitted the complainant. It is alleged by the complainant that opponent doctor suggested him for operation of his left hand and insertion of plate in his hand is essential for reunion of bones. Therefore complainant gave consent for operation and on 28.4.1999 opponent Dr.Maslekar performed operation. After operation complainant periodically visited the hospital of opponent for follow up continuously for 3 months as per advise of opponent doctor. Opponent doctor had given assurance that his hand will be alright as it is, but there was no improvement. On the contrary his left hand became completely disabled. Therefore complainant approached Dr.Vijaykumar Bandewar who examined him and informed that due to improper operation there is no progress etc. Dr.Bandewar suggested him for second operation i.e. bone grafting and did bone grafting. But there is no complete relief. It is alleged that due to negligence on the part of opponent Dr.Maslekar there was delay in bone grafting and due to delay in bone grafting he could not get complete relief by reunion of bones of his hand. Therefore by notice dated 14.9.2000 complainant claimed Rs.2 lakh from opponent Dr.Maslekar. By reply dated 11.10.2000 opponent Dr.Maslekar denied the averments made by complainant. Therefore alleging deficiency in service and medical negligence on the part of opponent Dr.Maslekar, complainant filed consumer complaint claiming 3 F.A..No.:277/2014 compensation of Rs.2 lakhs with interest @ 24% p.a. and also cost of the proceedings.
3. In response to the notice opponent Dr.Maslekar appeared before District Consumer Forum and by his written version resisted the complaint on the following among other grounds:-
It is not disputed that on 28.4.1999 he performed operation of the hand of complainant. However, it is denied that he had given assurance for complete relief. It is submitted that complainant had been his hospital after 2-3 months of the accident. Therefore fracture of his hand was already in state of non-union, because of prolonged immovable. After clinical examination he came to the conclusion that operation of left hand of the complainant is necessary and accordingly planned for operation in two stages. Accordingly complainant was informed. In first stage operation of fracture was done and fracture done was rigidly fixed with humerus plate. After operation no post operation complications were observed and wound was healing nicely. Thereafter humerus plate for period of six weeks was applied. According to opponent he tried his level best to recover original position of the hand of complainant. But no assurance was given as alleged by the complainant. After removal of plaster there were signs of clinical union in the form of minimum tenderness at fracture bone was noticed. Therefore opponent informed the complainant for surgery of "bone grafting". But complainant left the hospital and did not return back. It is not disputed that complainant had been to the hospital of Dr.Bandewar and Dr.Bandewar did bone grafting etc. But it is denied that Dr.Bandewar informed the complainant that due to defective or improper operation done by opponent there was no improvement etc. He has denied all other adverse averments made by complainant and submitted to dismiss the complaint with compensatory cost of Rs.50,000/-.4 F.A..No.:277/2014
4. On hearing both side and considering evidence on record District Consumer Forum vide its judgment dated 16.4.2005 had dismissed the complaint.
5. Feeling aggrieved by that judgment and order, complainant had approached this Commission by filing appeal No.975/2005 and it was alleged by the complainant that no opportunity of cross examination to the opponent doctor was given by the Forum. Therefore this Commission vide judgment dated 22.2.2011 remanded the matter back to the District Consumer Forum with a direction to give an opportunity of cross examination to the opponent.
6. After remand complainant availed opportunity of cross examination to the opponent by giving questionaries putting as many as 40 questions. Opponent replied the questions and denied that he acted negligently committing defective operation etc.
7. On hearing both side and considering evidence on record District Consumer Forum held that opponent Dr.Maslekar acted negligently while treating the complainant and therefore complainant was required to undergo second operation in the hospital of Dr.Bandwar etc. In keeping with these findings Dist.Consumer Forum partly allowed the complainant's claim as noted above.
8. Feeling aggrieved by that judgment and order, opponent Dr.Maslekar again came to this Commission in appeal.
9. We heard learned counsel for both side and perused the written notes of argument submitted by them. We have also perused the copy of impugned judgment and order, copies of complaint , written version, notice, notice reply, questionaries, and reply to the questionaries given by opponent Dr.Maslekar. We also perused x-ray 5 F.A..No.:277/2014 plates, medical case papers from hospital of Dr.Maslekar as well as Dr.Bandewar.
10. Almost all the facts except the contention of complainant that opponent Dr.Maslekar acted negligently while performing first operation, are not disputed. Therefore the crux in this matter is as to whether opponent Dr.Maslekar acted negligently while giving medical treatment and performing operation of the hand of complainant or not?
11. Except the contention of complainant supported with his own affidavit there is no affidavit of any witness or expert. Therefore Mr.Welankar learned counsel appearing for opponent Dr.Maslekar vehemently argued that the bare contention of complainant is not sufficient to prove medical negligence. According to him in the case of medical negligence initial burden to prove medical negligence is on the complainant and unless initial burden is discharged, no burden can be shifted on the opponent. According to him in the present case since no expert evidence is produced by the complainant, he failed to discharge his initial burden. Therefore impugned judgment and order is being unfounded is not sustainable. It is also submitted that though the complainant has averred in his complaint and affidavit that Dr.Bandewar informed him that operation conducted by opponent Dr.Maslekar is defective etc., no evidence affidavit of Dr.Bandewar is produced on record. He has also tried to support his contention by relying on the following decisions of Hon'ble National Commission.
(i) Dr.S.Gurunathan (Dead) -Vs- Vijaya Health Centre, 2003(1) CPR 222(NC).
(ii) Mrs.Kiran Bala Rout -Vs- Christian Medical College & Hospital & Ors., 2003(1) CPR 238(NC) 6 F.A..No.:277/2014
(iii) Dr.Shivaji Basu -Vs- Devapriya Ghosh & Anr. 2014(1) CPR 698(NC)
(iv) Ram Gopal Yadav -Vs- Dr.Pushkar Anand & Ors. 2015(2) CPR 571(NC)
(v) K.S.Bhatia -Vs- Jeevan Hospital, 2003(3) CPR 110(NC)
(vi) Dr.Ashok Kumar Rai -Vs- Smt.Seema Singh & Anr.
2015(2) CPR 701(NC)
(vii) Smt.Pushpa Devi & Ors. -Vs- Prof.R.C.Ram & Ors.
2015(2) CPR 764(NC)
(viii) Badam Agaiah & Ors. -Vs- Dr.L.Vaidya Sagar Reddy, 2014(2) CPR 670(NC)
(ix) Madaan Surgical & Maternity Hospital -Vs- Smt.Santosh & Anr. 2014(2) CPR 351(NC).
12. Per contra, Mr.Nakod learned counsel for the complainant submitted that though according to opponent Dr.Maslekar he had decided to perform operation in two stages, viz. first operation of fractured bone by fixing of plate and second operation i.e. bone grafting, no advise for bone grafting was given by opponent. But opponent has falsely contended that he had advised the complainant for bone grafting after first operation etc. He has also tried to support his contention by pointing out from medical case papers pertaining to the treatment given to the complainant at the hospital of Dr.Maslekar. It is submitted that if opponent Dr.Maslekar would have suggested for bone grafting, it should have mentioned in the case papers but no such suggestion is mentioned anywhere in the case papers. But opponent doctor has falsely alleged that complainant did not turn up to his hospital though he was suggested for bone grafting after post operation treatment which was given to him etc. It is submitted that if opponent doctor would have suggested the complainant, complainant would not have approached the hospital of Dr.Bandewar. Thus according to Mr.Nakod learned counsel for the complainant, opponent Dr.Maslekar acted negligently by not conducting bone 7 F.A..No.:277/2014 grafting after first operation though according to opponent Dr.Maslekar it was necessary.
13. It is further submitted by Mr.Nakod learned counsel appearing for the complainant that though complainant has not produced expert evidence, considering facts of the case it was not necessary to produce any expert opinion when the facts of the case itself speak that it is case of negligence. Thus according to him doctrine of "res ipsa locutor" would apply. He has also supported his contention by relying on the decisions of National Commission in case of Dr.Anil Jain, Medical Officer and another -Vs- Devendrakumar 2012(IV), CPR 461(NC). Further he has also supported his contention by relying on the following decision of Hon'ble Apex Court.
(i) Nizam Institute of Medical Sciences -Vs- Prasanth S.Dhananka & Others, 2009(3) T.A.C. 294(S.C.)
(ii) V.Kishan Rao -Vs- Nikhil Super Speciality Hospital, 2010(3) CPR 101(SC)
(iii) Savita Garg -Vs- Director, National Heart Institute, 2005(1) Mh.L.J. 451
(iv) B.Sreekanth -Vs- Dr.H.N.Shivakumar 2010(1) CPR 1(NC),
(v) Sun Flag Hospital Research Centre Through its authorise representative & Anr. -Vs- Shri.Raghubir Singh Poswal, 2013(3) CPR 526(NC)
(vi) Manu V.S. -Vs- Dr.Akhilesh Kumar & Anr., 2015(3) CPR 443(NC)
14. We have gone through all above decisions of Hon'ble Apex Court as well as Hon'ble National Commission and considering undisputedly facts of the case, we find much force in the submission of Mr.Nakod learned counsel appearing for the complainant.
8 F.A..No.:277/201415. Since this is the case of res ipsa locutor, expert evidence as alleged by opponent is not at all required. Moreover considering the peculiar facts of the case when according to opponent Dr.Maslekar himself, it was necessary to perform bone grafting operation and he did not perform it nor suggest the complainant and failed to prove that he had suggested complainant for bone grafting, District Consumer Forum has rightly held that opponent Dr.Maslekar acted negligently while medically treating the complainant in his hospital. Therefore complainant could not get complete relief by reunion of his hand bone. Thus it is obvious from the undisputed facts and evidence on record that opponent Dr.Maslekar committed deficiency in service by not exercising reasonable degree of care adopting reasonable skill and knowledge in giving treatment to the complainant. If really he would have suggested the complainant for bone grafting even after long treatment for about six months, in our opinion complainant would not have approached Dr.Bandewar. Therefore we are unable to accept the argument advanced by Mr.Welankar learned counsel appearing for the opponent. Therefore authorities which are cited by Adv.Welankar for appellant also cannot be helpful to the present case.
16. Moreover pointing out from the x-ray plates of the fractured hand of complainant, it is submitted by Mr.Nakod learned counsel appearing for the complainant that Dr.Maslekar though performed operation by inserting plate by internal reduction of fracture bone, plate was not properly fixed and this fact itself suffice to hold that Dr.Maslekar acted negligently. On careful perusal of x-ray plate we find much force in the submission of Mr.Nakod learned counsel for the complainant. If really x-ray plate would have fixed properly though there was delay for more than two months in performing operation, in our view, could have helped for reunion of fractured bone. Therefore we have no hesitation to accept the argument advanced by Mr.Nakod learned counsel for the complainant.
9 F.A..No.:277/201417. For the foregoing reasons District Consumer Forum has rightly held that opponent Dr.Maslekar committed deficiency in service acting negligently while giving medical treatment to the complainant. Moreover considering deformity remained in the fractured hand of complainant, District Consumer Forum has rightly assessed the compensation and awarded reasonable compensation Rs.50,000/-. Therefore we find no error or infirmity in the impugned judgment and order. Hence no interference is warranted.
18. In the result, appeal is being devoid of any merit deserves to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Uma S.Bora, S.M.Shembole, Member Presiding Judicial Member Mane