State Consumer Disputes Redressal Commission
Bhukya Sai Srikanth And Another Guntur vs Dr. Kommula Dhanvanthri Naidu And ... on 23 March, 2009
A A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 1252/2008 against C.D 63/2005, Dist. Forum, Rajahmundry Between: 1. Bhukya Sai Srikanth S/o. Balaji Naik Age: 6 years, Minor Rep. by his father Balaji Naik, Maredumilli East Godavari Dist. Present address: Qr.No.182/A, Ist Line Arandalpet, Guntur, Guntur Dist. 2. Bukya Balaji Naik S/o. Kotiya Nayak, Age 42 yrs Police Constable Maredumilli, East Godavari Dist. Present address: Qr.No.182/A, Ist Line Arandalpet, Guntur. . *** Appellant/ Complainants And 1. Dr. Kommula Dhanvanthri Naidu S/o Veeraraghava Naidu, Age 47 yrs Medical Practitioner Sai Orthopaedic Nursing Home & Skin Hospital College Road, Amalapuram East Godavari Dist. 2. Dasam Bhaskara Rao S/o. Subba Rao, Age 32 yrs Medical Shop C/o. Sai Orthopaedic Nursing Home Amalapuram, East Godavari Dist. *** Respondents/ Opposite Parties Counsel for the Appellant: P.I.P. Counsel for the Resp: M/s. T. V. Sridevi (R1 & R2) CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SMT. M. SHREESHA, MEMBER
& SRI SYED ABDULLAH, MEMBER MONDAY, THIS THE TWENTY THIRD DAY OF MARCH TWO THOUSAND NINE Oral Order: (Per Honble Justice D. Appa Rao, President) *****
1) The unsuccessful complainant is the appellant.
2) The case of the complainant in brief is that his son Sai Srikanth aged 6 years had met with an accident on 17.8.1999 sustained fracture to his left leg and lower jaw. He admitted him immediately at Aswini Emergency Hospital on the advise of R1 at the instance of R2 a medical shop owner. First aid was given by the duty doctor. After examining the X-Ray R1 informed that there was fracture and therefore required surgery. Accordingly R1 fixed the injured leg with plaster of paris and fixed mandible with inter dental wiring. Later on 18.8.1999 he was shifted to R1 hospital. He paid the fee for his treatment. R1 made his boy to remain in the hospital till his discharge on 24.8.1999 by giving liquid diet through pipe inserted in the mouth. His son had developed infection in the mandible, and despite continuous treatment infection was not abated due to mal-union of fractured mandible, and surgery conducted by R1 negligently. Since the injury was not healed, he took him to another doctor by name Dr. I. Ravi of Konaseema Hospital. After coming to know of it R1 requested Dr. Ravi to give necessary treatment and he would bear the expenses. When infection could not be controlled he approached Dr. G. Srinivas of Rajahmundry who after taking X-Rays etc. opined that the teeth which were infected had to be removed. He kept him for one week. He declined to conduct surgery when he informed that he would take action against R1. There upon he went to Dr. N. Ganeswara Rao of Kakinada on 16.12.1999 where his son was operated for removal of certain bone pieces at the place of injury. The infection had been automatically controlled but deformity was existed due to the operation. On advise he got the plastic surgery performed through Dr. K. Vishnu Murthy. He was there for a period of three months. All this had happened due to wrong surgery performed by R1. A registered notice was issued claiming compensation for which R1 gave a reply with false allegations. Therefore he claimed a compensation of Rs. 1,25,000/- towards expenses and costs.
3) R1 filed counter resisting the case. He alleged that the injured boy was brought on 17.8.1999 to the hospital in his absence. In his absence first aid was given and X-rays were taken. On examination it was found that the boy had fracture to the right Tibia and right side of mandible and bleeding from scalp. Since it was a medico-legal case he was referred to Aswini Speciality Emergency Hospital.
He was not aware as to the treatment given by Dr. B. Varahalu earlier to him. On 17.8.1999 at about 11.00 p.m. after informing the nature of the injuries, treatment etc. conducted the operation. On 20.8.1999 he fixed inter dental wiring under Endonasal endotracheal incubation and applied plaster of paris for fractured leg. He was there as in-patient till 23.8.1999. As a result his condition was stable. Since the complainant was a Head Constable at the instance of S.I. of Police he gave concession in treatment. Later the boy was brought on 25. 8. 1999 and he found that the wires have become loose thereupon he did re-wiring under local anaesthesia. Again he was brought on 15.9.1999 for swelling on the right side of the chin. He did incision. Daily dressing was done. By 24.9.1999 he became absolutely normal. There was no abnormality. Plaster of paris and wires were also removed. Leg fracture and mandible united well. On 8.11.1999 the boy was again brought to the hospital. He found that there was small discharge sinus at the lower border on the right side of the chin for which dressing was done. The boy was brought for 4 or 5 times for dressing at regular intervals and the wound healed well. The swelling on the right chin was due to caries teeth but not due to his treatment. He advised him to take proper dental care. Again on 26.12.1999 he was brought on which a minor procedure was done under anaesthesia and was discharged. The inter dental wiring which he made on the boy was proved and accepted mode of treatment. It cannot be called in question. The loosing of wires was due to solid diet being taken instead of liquid diet as advised. In fact, he advised to get the boy examined by a dental surgeon by name Dr. M. Shanker, MDS., Kakinada. However, he did not take him.
His father threatened that he would file a case before the Dist.
Forum besides a complaint under SC&ST (Prevention of Atrocities) Act. He was blackmailing him. He refused to accede to his request for payment of the amount. There was no negligence on his part and therefore prayed for dismissal of the complaint with costs.
4) R2 filed a memo adopting the counter of R1.
5) The complainant in proof of his case examined his father as PW1 besides PW2 Dr. Nekkanti Ganeswara Rao, Professor of Dental Surgery, Rangaraya Medical College & Government General Hospital, Kakinada and filed Exs. A1 to A42. Refuting his evidence RW1 examined himself as RW1 and Dr. V. Narayana Raju as RW2 and filed Exs. X1 to X5.
6) The Dist. Forum after considering the evidence placed on record opined that in the light of evidence of PW2 a dental surgeon and RW2 who conducted the operation and treated the patient ruled out any negligence on the part of R1 in treating the patient and dismissed the complaint.
7) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It did not consider various circumstances pointed out by him in order to appreciate the negligence on the part of R1. In fact, when he sought an opinion from Ethics Committee of Medical Council of India, they gave a certificate stating For fracture of mandible usually an oral and Maxillofacial surgeon is the best trained person to deal with such fractures. Since R1 is an Orthopaedic Surgeon he ought not to have conducted the surgery on mandible which itself amounts to deficiency in service, and therefore sought compensation as claimed by him.
8) The points that arise for consideration are :
a) Whether there was any negligence on the part of R1 in conducting surgery or treating the patient? b) Whether there are any
justifiable grounds to interfere with the order passed by the Dist. Forum?
9) It is an undisputed fact that Sai Srikanth aged 6 years had sustained fracture of mandible and fracture on the right leg in the accident that took place on 17.8.1999. R1 is an Orthopaedic Surgeon and Dermetoleprologist running a clinic under the name and style of Sai Orthopaedic and Skin Hospital at Amalapuram. On 20.8.1999 with the assistance of anaesthetist he conducted the operation by applying plaster of paris to the leg. The mandible was fixed with inter dental wiring under Endonasal endotracheal incubation. There is no complaint as far as the fracture of the leg is concerned. For the operation conducted on mandible he complains that it was infected and the wire was loosened which made R1 to re-fix it. Since the swelling and pain was not abated he was taken to PW2 Dr. N. Ganeswara Rao a professor of dental surgery of Rangaraya Medical College & Government General Hospital at Kakinada.
On that he opined Osteomyelites developed post operatively which was enucleated and currectised done in Kakinada on 17.12.1999. Subsequently the boy had recovered however there was deformity. Later he got the deformity was corrected through Dr. K. Vishnu Murthy, a Plastic Surgeon.
10) At the outset, we may state that the fact that there was deformity of the jaw is not evidenced by any record, much less an operation was conducted by Dr. K. Vishnu Murthy a Plastic Surgeon. PW2 who performed subsequent surgery did not allege that there was any deformity in the jaw.
11) Admittedly the boy had sustained a fracture on the mandible. It is not the case of the complainant even that R1 is not a competent Orthopaedic surgeon. He is an M.S (Ortho), as we have earlier stated competent to conduct the operation whenever any fracture is caused to the bones. PW1 father of the complainant has been working as Head Constable. According to him it was due to improper conducting of operation infection was not getting controlled and it was due to mall union of the fractured mandible and as a result of negligent surgical treatment given to the patient by R1 and also failure to take proper post-operative care.. It is not in dispute that PW1 has taken his son to PW2 his own witness who conducted subsequent operation. PW2 a Professor of Dental Surgery has categorically stated in his evidence Treatment done for fractured mandible point seen at left side mandible and diagnosed as Osteomyelites mandible. He examined the patient again on 6th, 17th and 22nd March and gave treatment. He got X-Ray of the injured part on 28.2.2000. He gave a certificate Ex. A5 reiterating that he conducted oral surgical treatment for old fracture mandible which was first done at Amalapuram. Osteomyelites developed post operatively which was enucleated and currectised done in Kakinada on 17.12.1999. Advised to continue post operative check up for three weeks. Final check up was done on 4.2.2000 and general condition was fair.
12) Since it is the case of the complainant that R1 is not competent to conduct surgery, and it is only a dental surgeon that can conduct the operation, when questioned, PW2 stated that It is true that the treatment of any injury to any bone is part of general line of treatment by an orthopaedic surgeon.
Witness adds as first line of treatment.
The orthopaedic surgeon is qualified to treat the fracture of mandible. PW2 a specialist also approved the line of treatment given by R1 in this regard.
He stated that It is true that the dental wiring , inter maxillary fixation is the simplest and widely used method of immobilisation. The mandible is fixed to the maxilla with the help of occlusion as a guideline. He also admitted Infection is common in the case of fracture to mandible involving tooth. Witness adds tooth is to be removed if the infection continues. He further adds but for anaesthetic reasons or for immobilization of the fracture the tooth may be important, the tooth may be retained subject to decision taken in respect of each individual case judged on its own merits. Tooth was also involved in the area of injury. The infection in the area of tooth only, in this case, when he examined the patient. The fracture of mandible was healed well.
13 When the expert examined by the complainant himself upheld the treatment given by R1, at no stretch of imagination, it can be said that he was guilty of wrong treatment. The complainant alleges that in view of the opinion expressed by Medical Council of India that For fracture of mandible usually an oral and Maxillofacial surgeon is the best trained person to deal with such fractures. R1 should not have conducted the surgery. It did not say that Orthopaedic Surgeon is not competent to do it. If that were to be the case, there is no proof that PW2 is an oral and Maxillofacial surgeon. He is a dental surgeon. Since the complainant had asked in between Orthopaedic Surgeon and Oral & Maxillofacial Surgeon, who is better surgeon, such an answer was given. There is no proof that Orthopaedic Surgeon can not conduct surgery for fracture of mandible. The certificate issued by Medical Council of India has no bearing on this case since they did not look into the case sheet or X-Rays etc. It is a general opinion.
14) The complainant who himself argued the matter contends that there was discrepancy in the case sheet maintained by R1. The fact that he could not contain the infection and the fact that he did not advise earlier to take the boy to a dental surgeon would itself constitute negligence and therefore he must be held guilty of negligence. We may state that RW2 Dr. V. Narayana Raju was the first duty doctor who attended on the patient.
He filed Exs. X1 to X5 the record maintained in their hospital. It is not the case of the complainant that it was not maintained by him.
There were some corrections in the case sheet. Instead of L there was overwriting of R in the coloumn Final Diagnosis. From this he alleges that the operation was conducted on left side instead of right side. It is not the case of the complainant even that the boy had sustained fracture on the left side. PW2 his own witness did not state that the operation was conducted on the wrong side of the mandible. Obviously the complainant being a Head Constable intends to contend by relying on some corrections and try to urge that there was negligence on the part of R1. It is settled law that appreciation of evidence in cases of this nature all would depend on preponderance of probabilities apart from un-refuted medical record.
15) Learned counsel for the respondent relied a chapter on treatment for mandible fracture by Waston & Jones in their book on Fractures and Joint injuries and by John Cook & Others in the book General Surgery. All these contentions are un-necessary in the light of evidence of PW2 a specialist who set-right the dentures of the patient and did not allege that there was any negligence on the part of RW1 in conducting the operation.
16) As recently as in February, 2009 in Martin F. DSouza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) the Supreme Court opined :
It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
(emphasis supplied) The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
17) In the light of above and particularly the opinion of PW2 another expert who asserted that there was no negligence in giving treatment by R1, we do not see any merits in the appeal. The Dist. Forum has considered the evidence in correct perspective.
18) In the result the appeal is dismissed. However, no costs.
PRESIDENT LADY MEMBER MALE MEMBER Dt. 23.03.2009.