State Consumer Disputes Redressal Commission
Ashok Rajgopal vs Deepti Ranjan on 13 October, 2011
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 13.10.2011 First Appeal 1099/2008 (Arising out of the order dated 31.10.2008 passed by the District Forum-VII, LSC Sheikh Sarai, New Delhi in complaint case no 485/2008) 1. 2. Dr. Ashok Rajgopal c/o Sehgal Nursing Home, B-22, Kailash Colony, New Delhi 110 048 Sehgal Nursing Home Through its Authorized Representative B-22, Kailash colony, New Delhi 110 048 .........Appellants/OPs VS 1. Ms. Deepti ranjan 24/45-B, Tilak Nagar, New Delhi 110 018 .Respondent/Complainant CORAM Justice Barkat Ali Zaidi, President Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
JUSTICE BARKAT ALI ZADI, MEMBER The facts of the case are that the complainant filed a complaint before the District Forum Shekh Sarai, alleging negligence on the part of OP No.1 Dr. Ashok Rajgopal as he failed to treat the complainant with proper care, for ailment, she visited the OP No.2 Nursing Home, despite having charged from her a consideration of Rs.16,160/-. The version of the complaint found favour with the District Forum which vide order dated 31.10.2008 allowed the complaint held the OPs negligent in their service towards the complainant liable to pay damages and directed the OPs to pay her a sum of Rs.1,50,000/- as compensation including the costs of litigation.
2. That is what brings the appellant OP in appeal before this Commission on various grounds, including that the Forum did not even see that there was not even an iota of evidence, in the form of medical literature or expert evidence, to substantiate the allegation of negligence and deficiency of service against them further assailing it that the order passed by the Trial forum is based solely on bald allegations without taking into account the glaring fact that complainant underwent an ACL Reconstructive Surgery on 2.5.2006 i.e. approximately after ten months of Arthoscopy Surgery conducted by the OP No.1 on 8.8.2005 at the Nursing Home of OP No.2 and that the complainant had started replaying without taking the proper rest so that the injury could heal and may have suffered again an injury.
3. we have heard the Ld. Counsel for the appellants and respondent complainant in person who has also filed written submissions to fortify her contentions in support of the impugned order.
4. The case of the respondent complainant is that she suffered pain in her left knee in June 2005 and for that visited Central Hospital, Northern Railways, New Delhi for medical check up on 21.6.2005. She was diagnosed as ACL Tear with Meniscus and was advised ACL reconstruction. She then, again consulted AIIMS, New Delhi on 23.6.2005 and 2.7.2005 who also endorsed the opinion of the Railway Hospital. The complainant then, consulted the appellant No.1 on 6.7.2005, who after examination assured to treat her by medication alone, without operating for reconstruction of ACL. She was again called for review and the respondent complainant visited him on 2.8.2005, when appellant No.1 (OP No.1) opined for surgery and accordingly admitted the respondent appellant in OP -2 Nursing Home on 8.8.2005. She was charged Rs.16,160/- by the appellants OPs. The respondent complainant was discharged on the same day of the operation with advise to visit on 17.8.2005 for removal of stitches. The appellant was advised on her next visit to apply ice pad locally and take medicine as and when required
5. It is further alleged by the respondent that despite following the instructions of the appellant No.1, she did not get the desired relief and therefore, was unable to perform her daily routine works; when the problem did not subside, she again visited Central Hospital, Northern Railway, New Delhi for further check up. She was advised at the said hospital that she would have to undergo surgery for the same problem she had been suffering earlier. She was also advised after examining the documents relating to her treatment done by the appellants, that she had not been operated for the ailments she was suffering from! She, was therefore again operated for ACL Tear with Meniscus on 2.5.2006 and was discharged on 4.5.2006.
6. As against it the appellants case is that the respondent was first seen at the clinic of appellant No.2 on 6.7.2005 with complaint of pain in the left knee following blunt injury. The doctor on duty on clinical examination found that there was no swelling or instability of the knee, and prescribed some pain killers and ointment for local application to treat the injury conservatively. On review Appellant No.2 examined the respondent for the first time on 13.7.2005, and noted improvement in the condition of the patient and advised her to continue with the line of treatment and the exercises suggested earlier. The respondent again visited on 2.8.2005 with MRI report which demonstrated that there was degeneration in the Posterior Horn of the left Medical Meniscus. The MRI further indicated contusion (bruise) of the ligament with continuity of the fibers. No inflammation, collection of fluid or instability was revealed from the MRI. Repeated evaluation of the patient did not reveal tear of the cruciate ligament which is called ACL Tear.
Accordingly, the respondent was advised to continue with the medication and exercise, explaining to her that the arthroscopic procedure would involve an evaluation of the Meniscal problem.
It is further submitted that the respondent has consulted AIIMS and Sufdarjang Hospital besides the Railway Hospital before visiting the appellants and their findings were in consonance with the observations and clinical findings of appellant No.1. As will appear on perusal of the documents of the concerned hospitals dated 23.6.2005 that the Doctors at these hospitals did not opine with certainty, whether the respondent had an ACL Tear injury or not, as indicates the sign of interrogation marked in their reports.
The respondent again returned from consultation to AIIMS on 2.7.2005, without any diagnostic test or MRI, and in the presence of negative clinical findings the respondent was diagnosed ACL Tear, and was advised to undergo Arthroscopy ACL Reconstruction.
7. When the respondent visited appellant No.1 again on 4.8.2005 she was advised on basis of MRI Report for Maniscal surgery for which she gave her Consent (informed) on 8.8.2005. She was again explained that the surgery would involve evaluation and treatment of the Meniscal Tissue. Accordingly, arthroscopic Surgery was done on 8.8.2005. It was found that her ligaments were normal and she had fraying of the edge of the posterior Horn of the middle meniscus.
She was also found to have hypertrophic fat pad which was excised and frayed edge of the meniscus debrided.
8. The appellant contention is that the fat pad is hypertrophic (Swollen) in sports persons and trimming it, is beneficial and it also enables better visualization of the structures of the knee, and the same day i.e. 8.8.2005 at 4 p.m. the condition of the patient was reviewed and she was found comfortable. She was advised physiotherapy and exercises and was discharged on the same day with a piece of advice to come again for review and subsequent suture removal.
9. The appellants contention is that ACL Tear is a major injury and in such a case the patient suffers from excruciating and unbearable pain and it is extremely difficult for the patient to walk or move about, and since this condition did not exist in the case of the respondent therefore the surgery was done on 2.5.2006 at the Central hospital, Northern Railway approximately ten months after 8.8.2005 when respondent was discharged from the Appellant Nursing Home. The appellants further contention is that probably, due to resumption of playing badminton after aforesaid treatment, she might have fallen down again and suffered fresh injury on her knee, necessitating an ACL reconstruction surgery in May, 2006. The Appellant have relied upon a catena of decisions of the Honble Supreme Court and that of the National Commission defining medical negligence requiring expert evidence to establish it.
10. In this regard, it will be advantageous to refer to a decision of the Supreme Court in case of Jacob Methew vs State of Punjab, 2005(6) SCC 1 where the Supreme Court observed that a simple lack of care, an error of judgment or an accident is no proof of negligence on the part of a Medical Professional. So long as a doctor follows a practice acceptable to the Medical Profession of that day, he cannot be held liable for negligence merely because of a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed A professional may be held liable for negligence on one of the two findings :
either he was not possessed of the requisite skills which he professed to have possessed, or he did not exercise, with reasonable competence in the given case the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or yardstick for judging the performance of the professional proceeded against, on indictment of negligence.
11. In an earlier decision in case of Phillips India Ltd. vs Kunju Punnju and Anr AIR 1975 Bombay 306 decided by the Supreme Court, the Supreme Court observed that court should be careful in ensuring professional men like doctors in the absence of clear and satisfactory evidence of negligence from which the only probable inference is one of negligence, it would be wrong to censure doctors who belong to a learned profession and who are ordinarily expected to maintain high standards of professional conduct in dealing with their patients.
12. There is no denying the fact that the respondent did not adduce any evidence of an expert in the field of orthopedics. Her entire case is founded on the allegations that she was diagnosed as suffering from ACL Tear with meniscus when she visited the Railway Hospital on 21.6.2005 and was advised ACL reconstruction, for which she consulted the Appellant No.1 on 6.7.2005 but instead of doing the needful the Appellants treated her first conservatively and then the surgery conducted on her could not cure her ailment for which she had to undergo surgery of the Railway Hospital on 2.5.2006, where some doctors informed her that the Appellants had not treated her properly. The complainant has not even produced any such examination report of any Doctor of Railway Hospital. There is not even an iota of evidence to corroborate her averments in this regard.
There is also no material on record to support her that due to alleged improper treatment given to her by the Appellants, she remained on bed and her ranking in the Badminton lowered down, to regain which she had to work hard and put more energy in her field. Also, we find her allegations bald and vague that she been treated properly, she would not have to undergo the sufferance.
13. Considering the facts of the case in its entirety in the light of well settled legal position, we come to the irresistible conclusion that the Ld. District Forum grossly erred in returning the verdict of guilt for medical negligence against the Appellant No.1, because there is no cogent material to fasten the liability on the Appellants. The impugned order is entirely based on surmises and conjectures and the bald allegations alone of the respondent, who admittedly is a lay person in the field of Medical Science, ignorant about the Medical technicalities, cannot be a substitute of the evidence needed to establish Medical negligence. Undisputedly the complainant did not doubt the competence of the Appellant No.1 that is why, she preferred to approach him for treatment despite the fact that she had been consulting countrys premier Hospitals including the AIIMS. Medical record of these hospitals relied upon by the respondent herself, suggests that the respondent has consulted the Doctors of Railway Hospital on 23.6.2005, AIIMS on 23.6.2005, Safderjung Hospital also on 23.6.2005 who could not opine with certainty, whether physical symptoms of respondent showed an ACL Tear injury or not. Then, she again visited the Railway Hospital on 26.6.2005 to ascertain the exact nature of injury, where she was advised for the MRI of her knee, but dissatisfied with the advice of the Railway Hospital, she returned to AIIMS on 2.7.2005, where in the absence of any diagnostic test or any MRI and despite negative clinical findings, she was diagnosed ACL Tear and advised to undergo Arthroscope ACL Reconstruction.
Instead of getting treatment there, she preferred the Appellant No.1 and visited for the first time Appellant No.2.
The Appellant No.1 examined her only on 13.7.2005 clinically and preferred to continue the treatment. The appellant No.1 performed arthroscopic surgery only on 8.8.2005. She was discharged on the same day. On 2.5.2006, she underwent ACL Reconstruction Surgery in the Railway Hospital. This happened after about ten months of her discharge from Appellants Nursing Home on 8.8.2005. Possibility cannot be ruled-out as submitted by the appellants that she resumed playing after her treatment at the Appellants Nursing Home and suffered some fresh knee injury which necessitated the surgery performed on 2.5.2006.
13. It is pleaded by the appellant that the respondent did not disclose previous consultations or showed the Appellant No.1, the prescriptions of other Doctor
14. We find merit in the contention of the Appellants that in the absence of any evidence regarding opinion of Doctors of Railway Hospital, uncorroborated allegations of Medical Negligence against the appellant No.1 remain unsubstantiated and there is no reason for us to disbelieve that the respondent was not administered treatment of the required Medical standards by the Appellant No.1.
15. As a result of our above discussion, we hold that the respondent failed to establish any negligence or inefficiency or non performance on the part of the appellant No.1, warranting impugned order to be passed against the appellant.
16. Allowing the appeal, we therefore, set-aside the impugned order and dismiss the complaint of the respondent.
17. No order as to cost.
18. Copy of the order be furnished to both the parties free of cost.
19. File, thereafter be consigned to the record room.
(Justice Barkat Ali Zaidi) President (Mrs. Salma Noor) Member Arya