National Consumer Disputes Redressal
Tarun Garg vs Dr. R.K. Gupta on 9 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1122 OF 2013 (Against order dated 10.07.2012 in First Appeal No. 899/2009 of the State Consumer Disputes Redressal Commission, Delhi) Sh. Tarun Garg, S/o Sh. H.K. Garg, R/o H.no. 6/20, Street No.4, Vishwas Nagar, Shahdara, Delhi-110 032 Petitioner Versus Dr. R. K. Gupta 69/70, Gali No.5, Old Arjun Nagar (Beside PNB), Delhi-110 051 Respondent BEFORE: HONBLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Gurdeep Singh, Advocate For the Respondent : Mr. Sayid Marsook, Advocate PRONOUNCED ON 9th May, 2014 ORDER
PER DR.
S.M. KANTIKAR, MEMBER
1. The Complainant Mr. Tarun Garg, met with a road accident in Solan (HP) on 1/5/2006 afternoon at about 2 p.m. and got first aid there. On the next day Dr. R. K. Gupta, the OP at East Delhi Orthopedic Trauma Centre, performed a surgery for fixation of fracture Humerus of his left arm. The surgery went on for five hours. Alleging negligence on the part of OP that he used highly inferior and substandard implants, which resulted in complication in the recovery of the Complainant, hence, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, (in short, District Forum) claiming a sum of Rs.8,00,000/- towards the cost of expenditure, suffering mental agony and trauma.
2. The OP contested the case and denied any negligence. The District Forum on the basis of opinion from Department of Orthopedics UCMS and GTB Hospital ,held the OP for minor medical negligence, and directed the OP to pay Rs.30,000/- along with cost of litigation Rs.5,000/- to the Complainant.
3. Subsequently, First Appeal No. 10/49 by OP, Dr. R. K. Gupta for dismissal of complaint, and another First appeal No.09/899, by complainant for enhancement of compensation, were filed. The State Commission, Delhi allowed the FA 10/49 and dismissed FA 09/899.
4. Aggrieved by the order of State Commission, the complainant/petitioner preferred this revision.
5. We have heard the counsel for both the parties. The counsel for the complainant vehemently argued that there was negligence in the operation of fracture elbow, the OP is not qualified to do such operation, and he could have referred the patient to Elbow Specialist. Further submitted that the OP carried out redundant procedure that replaced smaller screw by another screw of the longer length during olecranon osteotomy, without anesthesia. Hence, the operation conducted by OP was wrong, due to which the patient/complainant developed ulnar nerve paralysis. He has brought our attention to the nerve conduction study report.
On behalf of OP, Dr. R. K. Gupta himself also appeared with his Counsel. The Counsel for OP submitted that, OP has successfully treated the patient in emergent situation and he had recovered. The complaint was filed after lapse of more than 2 years, beyond the period of limitation, as provided under Section 24(A) of the Consumer Protection Act. Hence, the complaint was barred by time. The District Forum wrongly appreciated the reports from GTB Hospital and Sir Ganga Ram Hospital, which actually do not interpret any negligence by OP. Also, there is no relation between the Ulnar nerve damage and the nature of operation conducted by him. OP submitted that, he had performed the surgery meticulously with adequate precaution, which resulted in good quality fixation of all the fractured fragments. The Complainant had good post-operative recovery and was discharged, just after 2 days of the admission.
6. We have perused the evidence on record, and medical text books of Orthopedics for the olecranon osteotomy, Ulnar nerve injury. There is not even an iota of evidence to establish cause-effect relationship between the surgery conducted by him and the alleged damage caused to the body of the Complainant. Also, the operation, which was conducted in emergent situation, on 02.05.2006 saved the Complainants upper limb. Perusal of the Expert Report dated 01.03.2007, clearly mentions, No significant entrapment is noted on electrophysiological study and patient had received satisfactory treatment.
7. Even otherwise, the opinion from Department of Orthopedics UCMS and GTB Hospital about the treatment given to the Complainant shows that the patient had received satisfactory treatment. The OP has submitted that there was no question of compression of the ulnar nerve under the plate and screw. We have perused the lab report (annexure X-1) of Dr. D. K. Gupta which mentioned that, No conduction block is seen across the elbow. Findings indicate left Ulnar Nerve axonopathy. No significant entrapment is noted on electrophysiological study. The OP further submitted that, when Olecranon Osteotomy site showed early signs of loss of fixation, he performed an appropriate procedure, without any delay; it was a minor OPD procedure under local anesthesia. Thereafter, for a period of 8 months, the complainant sought opinion from several orthopedic surgeons, namely Dr. O. N. Negi, Dr. Shekhar Agrawal, Dr. Akhil Bhargava, Dr. Arun Goel, Rockland Hospital and Dr. R. P. Singla. We have perused the Consultation/Prescription slips available on file, none of them have opined about any Ulnar nerve damage and negligence by the OP.
8. The counsel for OP relied upon the case Post-graduate Institute of Medical Education and Research vs. Jaspal Singh (2009) 7 SCC 330: (2009)2 CPJ 92 (SC), in which it was held that there must be established casual (cause and effect) connection between breach of duty and injury suffered by the Complainant and the burden of proof lies on the Complainant. They further held that injury suffered must be sufficiently proximate to Medical practitioners breach of duty.
9. We have referred the case Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors ,MANU/SC/0600/1996, the Honble Supreme Court held that, in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as, he is performing his duties to the best of his ability and with due care and caution. 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.
10. Also, it is worthwhile to discuss the Bolams case (Bolam Vs. Frien Hospital Management Committee (1957) 1 WLR 582 , which also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. 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.
11. The another celebrated authority Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480: 1 CPJ 29 (SC), laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a 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.
12. We find that, the present complaint also suffers from the voice of Suppresio Veri and Suggestio Falsi that as the complaint filed lacks the relevant facts and only gives a partial picture. As per the medical literature, the injury to ulnar nerve is also likely to occur at the time of accident i.e. acute injury related and/or later on during the course of treatment i.e. delayed (Subacute or Chronic).
Therefore, as per the foregoing discussion, we are of considered view that there is no record to establish any casual relation between the olecranon osteotomy surgery performed by OP and the numbness in the little finger of the Complainant. We do not find any merit in the arguments on behalf of petitioner. The OP is a competent orthopedic surgeon and had acted as a reasonable competent surgeon. We do not find any deficiency in service or negligence on the part of OP. Complainant has not approached this Commission with clean hands, but we refrain from imposing any punitive cost.
Hence, the revision petition is dismissed. No order as to costs.
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(J. M. MALIK, J.) PRESIDING MEMBER ..
(DR. S. M. KANTIKAR) MEMBER Mss/3