National Consumer Disputes Redressal
Mohd. Abrar vs Dr. Ashok Desai & Ors. on 8 April, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 125 OF 2006 (From the order dated 19.01.2006 in Complaint No. 54/1998 of Madhya Pradesh State Consumer Disputes Redressal Commission) Mohd. Abrar, S/o Mohd. Hadrees R/o Jama Masjid Road Ujjain (Madhya Pradesh) Appellant Versus 1. Dr. Ashok Desai Greater Kailash Nursing Home 2. Manager Greater Kailash Nursing Home 11/2 Old Palasia, Indore Madhya Pradesh 3. New India Assurance Co. Ltd., Ratan Kothi Branch Indore Madhya Pradesh . Respondents BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant Mr. Vikrant Singh Bais, Advocate For the Respondent Mr. Salil Paul, Advocate PRONOUNCED ON : 8th APRIL 2011 O R D E R MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER 1. This appeal is directed against the judgement rendered by Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in complaint case no. 54 / 1998. The appellant is original complainant. His complaint filed under section 27 of the Consumer Protection Act, 1986 for compensation on account of medical negligence came to be dismissed. Feeling aggrieved, he has come up in appeal. 2. Briefly stated, the appellants case before the State Commission was that he sustained fracture of left leg due to accident on 24.04.1997. The accident occurred in the proximity of Dewas town. The appellant was initially admitted to Karim Nursing Home, Dewas on the same day. The x-ray examination indicated comminuted fracture. Though, there was no external injury found, he was advised to get further treatment at Greater Kailash Nursing Home, Indore. He went to Indore on the same day. He was admitted as indoor patient at Greater Kailash Nursing Home, Indore in the same evening. His left leg was hung upwards. The respondent no. 1 Dr. Ashok Desai decided to fix an external fixator. The measurement was taken on 30.04.97 for such purpose. On 5.05.1997, the external fixator was fixed by the treating medical practitioner, i.e., Dr. Ashok Desai. The appellant was hospitalised for further treatment after the installation of safety shoes on 8.05.97. 3. The appellant alleged that on 17.05.1997 he got himself discharged from the hospital on being assured of the successful operation and further assurance that no further medical treatment was required. He further alleged that the quality of external fixator was inferior. The rings and the steel rods were rusted. The rod fixed during the course of operation was defective. The respondent no. 1 Dr. Ashok Desai, did not pay any attention to the fact that there was occult blood. The infected blood had started oozing out of the drilled holes. No care was taken to drain out the infected blood. The appellant further alleged that after four days of discharge he again approached the respondent no. 1 Dr. Ashok Desai but the latter was not available. He was advised to visit the Hospital on 25.05.97. He accordingly went to the respondent no. 2 - hospital where he was told that the rod fixed in the left leg was defective and therefore, another operation was needed. In between 29.05.97 till 21.06.97, the respondent no. 1 Dr. Ashok Desai performed four operations including sequestrectomy and sloughectomy. Besides, plastic surgery was also performed. According to the appellant, the respondent no. 1 Dr. Ashok Desai ought to have gathered knowledge that there was onset of gangrene, yet instead of removal of the infected blood and giving treatment for gangrene the plastic surgery was performed alongwith four operations in order to gloss over the patent and negligent error committed by him. The appellant alleged that when there was no improvement noticed, he shifted himself to Gita Bhawan Hospital, Indore on 21.06.97. He was duly informed at that medical centre about the prognosis of gangrene. He was advised to undergo amputation of the left leg below the knee in order to arrest progression of the gangrene and to save his life. His left leg below the knee was amputated on 26.06.97. He took further treatment in Gita Bhawan Hospital till 31.07.1997. The appellant came out with a case that the amputation of his left leg was result of medical negligence committed by the respondent no. 1 Dr. Ashok Desai. He, therefore, claimed compensation of Rs.20 lakh on account of loss of livelihood, medical expenditure and mental as well as physical agony. 4. The respondents filed separate written submissions. They denied the charge of negligence at the end of the respondent no. 1 Dr. Ashok Desai in conducting the operations or giving of the treatment. They specifically denied the truth into allegation that a rod was fixed in the left leg and that the infection of blood was direct result of inferior quality of the rod. They submitted that proper treatment was given to the appellant with due care and diligence in accordance with norms of the medical profession. They submitted that the appellant himself committed negligence because he got self discharged on 16.05.97 without any direction of the respondent no. 1 Dr. Ashok Desai. They submitted that the appellant did not take proper care and, therefore, the infection of blood did occur due to his fault. They further alleged that on 29.05.1997, the appellant was examined by the respondent no. 1 Dr. Ashok Desai and was informed that there was gross skin necrosis as well as probability of amputation required of the part of left leg. In other words, the respondents denied that the amputation was result of any negligence on their part. They denied that there was deficiency in the medical service. Consequently they sought dismissal of the complaint. 5. The complaint was dismissed by the State Commission on 29.05.2003. The appellant preferred an appeal to this Commission. By order dated 09.02.2004, the matter was remanded to the State Commission for giving opportunity to the parties to conduct cross-examination of the witnesses by each other on the affidavits which were placed on record. The cross-examination of the respondent no. 1 Dr. Ashok Desai was conducted by the appellant whereas the respondents cross-examined Dr. Shakir Ali, whose affidavit was relied upon by the appellant. On evaluation of the material placed before it, the State Commission reached the same conclusion, namely, that the appellant failed to establish medical negligence committed by the respondent no. 1 Dr. Ashok Desai in providing necessary medical treatment and conducting the operations. The complaint was accordingly dismissed. 6. We have heard learned counsel for the parties. Though oral submissions were advanced by the appellant yet he placed on record written submissions too in addition to the oral submissions. The foundation of the claim put forth by the appellant is on three main grounds. First, that there was no proper care taken to drain out infected blood to avoid onset of gangrene. Secondly, no serious efforts were made to ensure proper blood circulation in the left leg prior to performance of the operation. Thirdly, the rod fixed in the left leg and the material used for fixation of the exterior fixator was of inferior quality which triggered the onset of gangrene. 7. The main question involved in this appeal is whether the appellant discharged burden of proof to establish that the respondent no. 1 Dr. Ashok Desai, committed breach of the professional duties and failed to foresee the adverse effect of the gangrene. The legal position in the context of the medical negligence is duly set at rest in view of the Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre & Others [(2010) 3 SCC 480]. The Supreme Court held that the medical practitioner would be liable only where his conduct falls below that of a reasonably competent doctor. It is observed that diversion of opinion with other Doctors, could not itself be sufficient to infer negligence. The relevant observations may be reproduced as below:- On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:- I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional 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. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 8. We shall now examine the material on record in the light of afore stated principles. On behalf of the respondents, affidavit of respondent no. 1 Dr. Ashok Desai was placed before the State Commission. He was duly cross-examined. Nothing of much significance could be gathered from his cross-examination. He gave detailed account of the treatment given to the appellant. His version and the record purport to show that without any medical advise, the appellant got self discharged from the respondent no. 2 hospital on 16.05.1997. There is no supporting material to countenance version of the appellant that he was discharged because no more treatment was needed and was assured of successful operation. This part of his version is uncorroborated by any documentary evidence. 9. The medical treatment papers relied-upon by the respondent go on to support version of respondent no. 1 Dr. Ashok Desai. The X-ray report also indicated satisfactory condition of the bones after the comminuted fracture was treated by binding of the external fixator. The fixator is used in order to prevent early movements at the place of the fracture, thus, inhibiting callus formation. It goes without saying, therefore, that if after the operation the patient does not take due care to keep his movements restricted, after applying of the external fixator, there is possibility of movements at the site of the fracture that would cause complications. The fact that the appellant got himself discharged on his own, is indicative of his own negligence. In any case, it is difficult to find out whether he contributed to the causation of the gangrene. All said and done, it is rather difficult to draw a thin line between his own negligence, the quantum of his contribution, other causes which gave rise to the onset of gangrene and absence of care on the part of the respondent no. 1 Dr. Ashok Desai. 10. There is no dispute about the fact that the respondent no. 1 Dr. Ashok Desai is an experienced orthopaedic surgeon. There is no substantial reason to dislodge his version regarding the medical care taken by him while conducting the operations and giving of the treatment to the appellant. As against this, the appellant has no knowledge of medical science and is totally dependant on affidavit filed by Dr. Shakir Ali. It has come on record that Dr. Shakir Ali examined the appellant only after amputation of the part of the left leg. Needless to say Dr. Shakir Ali had no occasion to examine the appellant during course of the medical treatment conducted on his left leg at hands of the respondent no. 1 Dr. Ashok Desai. Further more, Dr. Shakir Ali, is not an expert witness. He is only MBBS and is a general practitioner. He does not claim to have any specialised knowledge in the filed of orthopaedics. The State Commission rightly came to the conclusion that version of Dr. Shakir Ali is based on mere surmises. He appears to have favoured the appellant though could have no personal knowledge regarding the medical treatment required to be given or the nature of operations conducted by respondent no. 1 Dr. Ashok Desai. 11. As a matter of fact, though the appellant came out with a case that a rod was fixed in his left leg, yet the medical papers and version of respondent no. 1 Dr. Ashok Desai would give serious jolt to such allegation. There was no rod fixed when the initial treatment was given by respondent no. 1 Dr. Ashok Desai. There was only external fixator put around the place of the fracture. The medical practitioners cannot be treated as magicians or demi-Gods. They are fallible human beings. The liability to pay compensation may arise only when the complainant proves that the causation was result of negligence committed by the medical practitioner and there was clear material available to foresee the injury. 12. Learned counsel for the appellant sought reliance on Martin F. Dsouza Vs. Mohd. Ishfaq [(2009) 3 SCC 1]. The observations in the said case are of no avail to the appellant. The Supreme Court gave certain directions in order to provide umbrella of protection to the medical practitioners against ill-motivated complaints. He also referred to Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors.[(2009) 9 SCC 221] in which case the medical practitioner not only failed to carry out correct diagnosis of the disease at initial stage but also prescribed high doses of long acting steroids. The excessive dose of steroids was the cause of immunosuppression and sepsis. The fact situation in the present case is on different footings. Learned counsel for the appellant also relied upon Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. [(2009) 6 SCC 1]. The negligence was fully established in the given case. In the case in hand, we are of the view that professional negligence is not established against the respondent no. 1 Dr. Ashok Desai. Taking over-all view of the matter, we are of the opinion that the State Commission took a reasonable view. It follows that dismissal of the complaint by the State Commission is quite legal, proper and correct. The appeal is without merits and hence is dismissed. No order as to costs. ...
(V.R. KINGAONKAR J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER RS/