State Consumer Disputes Redressal Commission
Rajesh Agrawal vs Bhilai Ispat Sayantra & Ors. on 30 June, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/47
Instituted on : 27.09.2016
Rajesh Agrawal, Aged 56 years,
S/o Late Badrinarayan Agrawal,
R/o : House No.43-C, Avenue C, Sector 1,
Bhilai, District Durg (Chhattisgarh) ... Complainant.
Vs.
1. Bhilai Steel Plant,
Bhilai, District Durg (C.G.),
Through : Chief Executive Officer,
Bhilai Steel Plant,
Bhilai, District Durg (C.G.)
2. Jawahar Lal Nehru Hospital & Research Centre,
Bhilai, District Durg (C.G.),
Through : Incharge Officer,
Jawahar Lal Nehru Hospital & Research Centre,
Bhilai, District Durg (C.G.).
3. Dr. Subodh Hiren,
Neuro Surgery Department,
Jawahar Lal Nehru Hospital & Research Centre,
Bhilai, District Durg (C.G.).
4. Dr. Kaushlendra Thakur,
Neuro Surgery Department,
Jawahar Lal Nehru Hospital & Research Centre,
Bhilai, District Durg (C.G.).
5. Dr. R. Bisoi,
Neuro Surgery Department,
Jawahar Lal Nehru Hospital & Research Centre,
Bhilai, District Durg (C.G.). ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
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COUNSEL FOR THE PARTIES:
Shri Shishir Bhandarkar, Advocate for the complainant.
Shri Abhishek Vaishnav and Shri Anurag Thaker, Advocates for the
opposite parties.
ORDER
Dated : 30/06/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(1) To direct the O.P. No.3, 4 & 5 to pay total amount of Rs.99,60,000/- (Rs. Ninety Six Lakhs and Sixty Thousand) to the complainant towards compensation because due to medical negligence committed in conducting operation, the complainant suffered physical disability, mental agony and financial loss.
(2) To grant interest @ 18% p.a. on the above amount from the date of filing of the complaint.
(3) To direct the OPs to pay a sum of Rs.20,000/- (Rupees Twenty Thousand) towards cost of litigation to the complainant.
(4) To grant any other relief, which this Commission deems fit looking to the present and future circumstances of the case.
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2. Briefly stated the facts of the complaint of the complainant are that on 03.08.2014, the complainant slipped in his house and sustained injuries. The complainant went himself to the O.P. No.2 Hospital of O.P. No.1. During check-up, the complainant was in the consciousness, even his blood pressure was normal but was regularly complaining about the pain on lower part of his spinal cord. During check up, it was found that there was tenderness on D11 and D12 of complainant's Spinal cord but no deformity or Neurological Deficit was found. After seeing the pain of complainant, he was advised for bed rest and was admitted to the O.P. No.2 Hospital. The complainant was regularly examined from 03.08.2014 to 25.08.2014 by the O.P. No.3 to O.P. No.5 in the Hospital of O.P. No.2. During this period the M.R.I. of the complainant was also done on 06.08.2014 in which Comprassion Collaps was found in D11 of Spinal Cord because of which complainant was advised bed rest with medication. During this period, complainant's blood pressure and different tests were regularly taken. Complainant was advised full bed rest and was asked not to sit and walk for approximately 6 weeks. It was always persuaded to complainant that he will be fine after complete bed rest. It is to be noted here that complainant was in full sense and consciousness during the period from 03.08.2014 to 25.08.2014 and had full control over his excreta and was able to perform by himself. The complainant was only having pain in his lower part of the spinal cord // 4 // and was regularly complaining about it to O.P. No.3 to O.P. No.5 on which the O.P. No.3 to O.P. No.5 informed him that small and minor operation is required. The complainant asked the O.P. No.3 to O.P. No.5 that what was the need of operation if his condition can be improved by bed rest, O.P. No.3 to O.P. No.5 assured complainant that there is no need to be afraid of this operation as it is simple routine operation through which the gap between bones will be filled and after this operation he will recover faster. The operation of the complainant was conducted on 25.08.2014 by the O.P. No.3 to O.P. No.5 after taking signature of complainant's wife on pre-printed forms. The complainant was in full sense and consciousness before the operation, even after that his consent was not taken before operating him. In this operation steel screw was fixed on the spinal cord of the complainant. There was gross negligence on the part of O.P. No.3 to O.P. No.5 as the operation of the complainant was performed without the Guidance of Image Intensifier because of which the screw was fixed slantly in the D11 of spinal cord which badly damaged the vital nerve of the spinal cord and caused paralysis to the complainant's lower part of his body and complainant also lost control over his excreta. After seeing the deteriorating condition of the complainant, city scan of complainant's body was done by the O.P. No.3 to O.P. No.5 and they realized their mistake after looking the report of CT scan. After realizing their mistake, O.P. No.3 to O.P. No.5 performed the second // 5 // operation in hurry and again did not take the consent from the complainant. Before performing the second operation, O.P. No.3 to O.P. No.5 got the signature of the complainant's wife on the letter which was dictated by O.P. No.3 to O.P. No.5, by suppressing the true facts and showing the fear that if the second operation will not be performed the condition of the complainant will further deteriorate. Again the consent from the complainant was no taken. Even after the second operation there was no improvement in the condition of the complainant. As a result of negligence in performing of operation by O.P. No.3 to O.P. No.5, the complainant became disabled and lost his control over stool and urine. Although before operation, the complainant had full control over his body and was physically fit and all his body parts were healthy. After operation, the complainant has lost his control over his excreta because of which he is forced to use the rubber pipe for urine and to wear diaper all the time because of stool as he lost control over it. In both the cases, the complainant has to face regularly face lots of pain and embarrassment because of these circumstances. The complainant also went to Dr. Aadarsh Trivedi and Dr. Shailesh Kelkar for medical advice for the treatment of his disablement, caused because of negligent operation performed by O.P. No.3 to O.P. No.5 by slantly fixing screw in the D11 of the spinal cord which badly caused damage to the vital nerve of the spinal cord due to which complainant never got the benefit / advance of any other // 6 // treatment and there is no change in the condition of the complainant. The complainant demanded for all the medical documents from the OPs so that he can get treatment from other doctor, but they refused to give the medical documents and when complainant took help of R.T.I. for getting his medical documents, the OPs delayed as much as they can in providing the document. OPs within with intention of criminal conspiracy have forged the medical documents of the complainant by adding the word "Paraparesis" in different places of medical documents to hide their mistake / negligence and to suppress the fact of complainant being paralyzed. Although this not the condition of the complainant before the operation. The complainant's lower part of the body got paralyzed and complainant became disabled as a result of negligent performance of operation by the O.P. No.3 to O.P. No.5. Because of which the complainant has to face extreme body pain, mental trauma and embarrassment situation. Complainant is not able to walk and has lost control over his excreta because of which he is deprived from the joy of life and has become dependent on his family. He has to spent lots of money on treatment, medicines, physiotherapist, attendant and for fulfilment of other requirement. The complainant has to face financial instability because of increase in expenditure and medical treatments and is deprived of his income also, as he is unable to attend and to participate in Court proceedings. OPs are responsible for the present condition of the complainant due // 7 // to which complainant sent them the legal notice but even after receiving the notice, the OPs refused to accept their negligence and to pay any compensation amount to the complainant. Hence, the complainant filed the instant complaint.
3. The OPs have filed their joint written statement and raised preliminary objection. The complaint is not maintainable because as per provisions of the Consumer Protection Act, 1986, the complainant does not come in the category of the consumer. The OPs are not service provider, but the OPs constructed the Hospital for the personnel, who are engaged in manufacturing of steel and for their dependents under which free medical facility is given to them. Thus, as per the provisions of the Consumer Protection Act, 1986, neither the complainant is consumer nor the OPs are service provider, therefore, complaint is liable to be dismissed. The entire treatment was provided to the complainant free of cost. If the complainant would have any problem, then he was entitled for free medical treatment, but he ignored his health and for the two years he had taken treatment at other various places and intimation regarding the same was not in the knowledge of the OPs, therefore, the OPs did not commit any unfair trade practice of deficiency in service. The treatment was given to the complainant as per the procedure and principle given in the medical science by the experienced and reputed doctors taking precautions and giving intimation to the complainant and family members of the // 8 // complainant. The complainant has not filed any document or expert opinion to establish that the OPs committed medical negligence. In Jawahar Lal Nehru Hospital and Research Centre, there is no post of Incharge Officer. The Bhilai Steel Plant is a Plant which is producing / manufacturing steel under Steel Authority of India, which is a Government company. The hospital is not running under the control of O.P. No.2. The O.P. No. 3 to O.P. No.5 are the doctors appointed by O.P. No.1, who are working on the monthly salary basis and they are not getting extra incentive for treatment of the patient. National Accredition "NABH" First Stage Certificate has been given to the medical facilities of the Hospital. As the wife of the complainant is working under O.P. No.1, therefore, her husband has been provided free medical facility by Sector 9 BSP Hospital. The patient was got admitted in J.L.N. Hospital & Research Centre on 03.08.2014 but the averment of the complainant that O.P. No.3, 4 & 5 have admitted him is false. The complainant was admitted in Orthopaedics department and at the time of test weakness was found in quadriceps, which was mentioned by the doctors of the Orthopaedics department. From the perusal of the note sheet regarding admission, it is clear that on 03.08.2014, the complainant was admitted due to tramatic colaps of D11 Vertrebral Body. At the time of admission, the wife of the complainant has voluntarily gave consent for doing medical procedure as per requirement. The O.P. No.3 to 5 did not examine the // 9 // complainant from 03.08.2014 to 25.08.2014 every day because on 03.0.2014, the complainant was admitted in Orthopaedics department. Prior to operation, the complainant was elaborately informed regarding consequences of the conducting operation and not conducting operation. Regarding operation of the complainant, for all medical procedures e.g. anaesthesia, surgery, consent has been taken and information regarding the probable consequences of the procedure adopted and complications has been given to the relative of the complainant Devesh Kumar and wife of the complainant Jyoti Agrawal. In the neuro surgery, the operation of spinal cord is not minor and easy. Prior to operation, the O.P. No.3 to 5 informed the complainant there are two options, firstly he should take bed rest for 4 months, then his condition would be improved or surgery of D11 and d12 of his spinal cord be done and can be mobilized at the earliest. The O.P. N.1 to 3 did not give assurance to the complainant that above operation is a general routine surgery in which his gap would be corrected and he would become alright and would get rest. The O.P. No.4 & O.P. No.5 have elaborately informed the wife of the complainant regarding the operation and probable danger of the anaesthesia and obtained consent of wife of the complainant. Signatures of the relative of the complainant were not obtained in pre- printed form. The information regarding the complication is handwritten and the same was written by informing relatives of the // 10 // complainant. In the complications, it is specifically mentioned that in the probable danger of the operation i.e. termination of control over excreta, weakness of legs and implant failure were included. For the operation help of C-Arm which was available in the operation theatre, was taken, which is mentioned in surgical checklist page No.52. On 25.08.2014, head of neuro surgery department and renowned Dr. Subodh Hiran and other assistants of his tem Dr. Kaushlendra and Dr. Bisoi conducted surgery of D.L. of the complainant as per best technique approved in medical science and with the help of image intensifier and fixed without screw. On 26.08.2014 i.e. next day of operation, the complainant informed that in his leg there is no movement, then immediately O.P. No.3 & O.P. No.4 got conducted CT scan of the complainant on 26.04.2014 in which it was found that one screw in the middle side was mal-positioned, which is occurred due to any reason because several time it occurred that the person above 50 years of age who lost calcium and in his bones, during movement of drill or nail, the bone is mal-positioned, for which any person cannot be held responsible, because it is out of control of the human. On 26.08.2014 prior to conducting second operation the doctors have explained the wife of the complainant and obtained her consent. After second surgery, on 27.08.2014 the complainant told that there is proper movement in his leg which is called Paraparasis in medical terms At the time of admission, the complainant was suffering from // 11 // quadriceps weakness and after surgery when there was no improvement, then CT scan of the complainant was conducted. The relatives of the complainant was elaborately explained regarding probable danger of the operation and thereafter on 26.08.2014 second operation was conducted. The OPs did not commit any medical negligence. In the treatment paper given by Dr. Adarsh Trivedi and Dr. Shailesh Kelkar, it is not mentioned that O.P. No.3, O.P. No.4 and O.P. No.5 have committed any negligence whereas the above doctors are giving medical facility and medicine to the complainant, which was generally given to patient like complainant. No cause of action accrued to the complainant to file the instant case, therefore, the complaint is liable to be dismissed. This Commission has no jurisdiction to hear the complaint because it is not a consumer dispute. The complainant is not entitled to get any relief from the OPs, therefore, his complaint is liable to be dismissed. The complainant is not consumer of the OPs and the OPs did not provide any service by obtaining consideration or service charges, therefore, the complainant has no right to file instant complaint against the OPs. The instant complaint cannot be decided by the Consumer Fora in summary procedure and the same can be decided by competent Civil Court in Civil Suit. During admission in the Hospital, the complainant told that due to fell down in the floor he sustained injuries in his back and spinal cord. During the examination and after taking x-ray, the Ortho // 12 // department found that there is fracture in D-11 i.e. spinal cord and on 07.08.2014 itself the doctors advised the complainant to take bed rest for 3-4 months, then improvement can be made or by adopting spine surgery image intensifier procedure, the part of D--11 can be mobilized. The complainant and his wife were provided sufficient time to take decision and on 25.08.2014 the operation was conducted and before operation, they gave consent. Prior to it, the complainant told that he is an advocate and understand the fact of consent and you can obtained consent letter from my wife by explaining her the facts and thereafter the wife of the complainant Jyoti Agrawal gave her consent in the presence of the witness and after reading and understanding the consent letter, she signed the same. At that time the doctors told the complainant and his wife that after operation in such surgery there is possibility of termination of control over excreta i.e. paraparesis in reply to which they told inspite of having risk, they are prepared. Thereafter Dr. Subodh Hiran, renowned Neuro Surgeon and Head of the Department along with Dr. Kaushlendra Thakur and Dr. Bisoi, conducted operation of D-11 of the complainant on 25.08.2014 as per procedure prescribed in medical science and fixed screw for combining fractured bone and for decreasing the pressure. The OPs did not commit any medical negligence. The complaint is liable to be dismissed.
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4. The complainant has filed documents. The documents are documents relating to treatment in Jawahar Lal Nehru Hospital & Research Centre, Bhilai for the period from 03.08.2014 to 11.09.2014 in original (Page No.01 to 132), M.R.I. Report dated 06.08.2014 in original (Page No.133), C.T. Scan Report dated 26.08.2014 in original (Page No.134), Discharge Note dated 26.08.2014 in original (Page No.135), OPD Card issued by Chandulal Chandrakar Memorial Hospital, Bhilai (C.G.) in original (Page No.136), Prescription slip dated 27.09.2014 issued by Dr. Shailesh Kelkar, Uro Surgeon, in original (Page No.137), Prescription Slip of Dr. Shailesh Kelkar, Uro Surgeon, Wockhardt Hospital, Nagpur, dated 25.10.2014, in original (Page No.138), Prescription Slip of Dr. Shailesh Kelkar, Uro Surgeon, Wockhardt Hospital, Nagpur, dated 22.11.2014, in original (Page No.139), Prescription Slip of Dr. Shailesh Kelkar, Uro Surgeon, Wockhardt Hospital, Nagpur, dated 27.12.2014, in original (Page No.140), Prescription Slip of Dr. Shailesh Kelkar, Uro Surgeon, Wockhardt Hospital, Nagpur, dated 24.01.2015, in original (Page No.141), OPD slip issued by Chandulal Chandrakar Memorial Hospital, Bhilai from 02.06.2015 to 30.05.2016, in original, (Page No.142 to 157), pass book of the complainant in original (Page No.158), photo of the complainant (Page No.159), Notice dated 24.05.2016 in original (Page No.160 to 162), reply of notice, dated 10.06.2016 in original (Page No.163 to 167). The complainant has also filed list of medical bills with medical bills in // 14 // original (Page No.1 to 181), Annexure S is photocopy of Swasthya Seva Pustika, Annexure T is Operation Note dated 25.08.2014.
5. The OPs have filed documents. Annexure 1 is literature regarding medical test spinal cord injury, Annexure 2 is literature regarding the Spine Volume II, Annexure 3 is literature regarding Osteoporosis etc. - Louis Solomon Ninth Edition, Annexure 4 is literature on Thoracolumbar Spine Fracture, Annexure 5 is literature on Thoracic and Thoracolumbar Injuries. The OPs have also filed documents i.e. D-1 is Certificate of Dr. N.K. Thakur regarding Neurosurgery Skills Training Program, D-2 is Certificate of Neurotrauma 2011, D-3 is Training Certificate of BSP dated 06.01.1998, D-4 is Certificate of Appreciation awarded by Trauma 2009, D-5 is Certificate issued by Dr. A.K. Mahapatra, Professor & Head Neuro Surgery, A.I.I.M.S, New Delhi.
6. Shri Shishir Bhandarkar, learned counsel appearing for the complainant has filed written arguments and contended that on 03.08.2014, the complainant slipped in his house and sustained injuries, therefore, he went to the O.P. No.2 Hospital, which is running by the O.P. No.1. When the complainant went o the O.P. No.2 Hospital, the check up was started by the doctors and he was conscious and his blood pressure was normal. The complainant was complaining about the pain on lower part of his spinal cord. During check up it was found that there was tenderness on D11 and D12 of // 15 // complainant's spinal cord but no deformity or Neurological Deficit was found. The complainant was advised bed rest and he was admitted in O.P. No.2 Hospital where he was examined by sub- ordinate staff of O.P. No.2 Hospital regularly. M.R.I. of the complainant was also got done on 06.08.2014 in which comprassion collaps was fund in D11 of spinal cord, therefore, the complainant was advised bed rest with medication. The blood pressure and different test of the complainant were regularly taken in O.P. No.2 hospital. The complainant was advised full bed rest and was asked not to sit and walk for approximately six weeks. The complainant was conscious during the period from 03.08.2014 to 25.08.2014 and he had full control over his excreta and was also able to perform by himself. He was only having pain in his lower part of the spinal cord and was regularly complaining about it to O.P.No.3 to O.P. No.5. The O.P. No.3 to O.P. No.5 informed the complainant that small and minor operation has to be performed. The complainant asked the O.P.No.3 to O.P. No.5 that what was the need of operation, if his condition can be improved by bed rest. The O.P. No.3 to O.P. No.5 assured the complainant that there is no need to be afraid of this operation as it is simple and routine operation through which the gap between bones will be filled and after this operation, he will recover faster than expected from the injury and pain. The operation of the complainant was conducted on 25.08.2014 by the O.P. No.3 to 5. The operation of // 16 // the complainant was not necessary, but the O.P. No.3 to O.P. No.5 told that the operation was minor and routine operation, which was an alternative and also assured the complainant that after operation the condition of the complainant would be improved. According to the principle of operation, the operation must be performed only when no other alternative remedy is available, but in the instant case, initially the O.P. No.3 to O.P. No. 5 have advised the complainant for complete bed rest but they unnecessarily conducted operation. The operation was conducted by the O.P. No.4 who is not the Neuro Surgeon, which comes within purview of medical negligence. The O.P. No.3 to O.P. No.5, must be held liable for committing medical negligence.
7. Shri Shishir Bhandarkar, learned counsel appearing for the complainant further argued that from perusal of the documents filed by the complainant, it appears that during check-up only tenderness on D11 & D12 of spinal cord and weakness on the front muscles of thigh was found but no Deformity or Neurological deficit was found. From perusal of MRI Report on page No.127 dated 06.08.2014, it was found that even after Comprassion Collaps, disc level and vertebral alignment of D6 to D12 was normal. Normal Signal Intensity was also found on spinal cord. No Neurological deficit and Non Surgical Management was found. Looking to the documents dated 22.08.2014 (Page No.44) it is clear from the entries in that document that operation was Minor and Routine Operation because of which it was // 17 // postponed. Even from analysis of document Page No.48 it is clear that the operation was routine operation, complainant was not informed about the potential risk of that operation by the O.P.No.3 to O.P. No.5. The consent for operation was also not taken from the complainant before conducting operation. In the consent letter the signatures of the wife of the complainant was obtained whereas the complainant was conscious and healthy and he was competent to give consent, but the consent of the complainant was not taken by the O.P. No.3 to O.P. No.5. The OPs have stated that they have obtained the written consent of wife of the complainant before operation of the complainant for second time, although on going through the Page No.57 of medical document it is apparent that the OPs have not informed the complainant's wife about slantly fixation of screw which comes under the category of suppression of the material fact. Even the documents have been fabricated by the OPs. From perusal of Annexure T and Page No.55 of medical document produced by the complainant, it is apparent that word "paraparesis" has been added afterwards, therefore, the act of OPs come within deficiency in service and medical negligence. The complainant is consumer and complainant is entitled to get compensation, as mentioned by him in the prayer clause of the complaint. He placed reliance on Indian Medical Association Vs. V.P. Shantha & Ors. III (1995) CPJ 1 (SC); Dhanwanti Kaur Vs. S.K. Jhunjhunwala (Dr.) & Anr. III (2010) CPJ // 18 // 300 (NC); Laxman Thamappa Kotgiri Vs. G.M. Central Railways & Ors. III (2006) CPJ 6 (SC); Sanjeev Rastogi (Dr.) Vs. Deepak Sehgal/Deepak Sehgal Vs. Dr. Sanjeev Rastogi, IV (2010) CPJ 1 (NC); Pushpa Namdeo & Ors. Vs. Vimal Golcha (Dr.) I (2010) CPJ 222 (NC), Dr. Pampa Pathi & Anr. Vs. Dr. H.V. Dayanand & Ors. III (2011) CPJ 287 (NC); Joginder Singh & Ors. Vs. Dr. Rajeev Kumar Majumdar & Ors. IV (2009) CPJ 9 (NC), I Maninmegalal (Smt.) & Ors. Vs. Steel Authority of India Ltd. & Ors. IV (2010) CPJ 221 (NC), Indra Raj Choudhary Vs. L.N. Rathi Memorial Hospital & Research Centre (Rathi Hospital) & Ors. IV (2010 CPJ 265 (NC), Prasad Kumar T vs. Shajahan Yousuf Sahib & Anr. IV (2015) CPJ 22B (Kerala) (CN).
8. Shri Anurag Thaker and Shri Abhishek Vaishanav, learned counsel appearing for the OPs have argued that the wife of the complainant is an employee of O.P. No.1 Bhilai Steel Plant, therefore, the treatment was given to the complainant free of cost and no amount was received from the complainant, hence, the complainant is not consumer and the OPs are not service provider. The complaint is not maintainable under the provisions of the Consumer Protection Act, 1986. If the complainant would have any problem, then he was entitled for free medical treatment, but he ignored his health and for the two years he had taken treatment at various other places and intimation regarding the same was not given by him to the OPs. The treatment was given to the complainant as per the procedure and // 19 // principle given in the medical science by experienced and reputed doctors and giving intimation to the complainant and family members of the complainant. The consent was obtained from the wife of the complainant and post complication was also informed and explained to the complainant as well as his wife. The complainant was got admitted in Orthopaedics department and at that time test for weakness was got conducted and it was found that there was weakness in quadriceps, which was mentioned by the doctors of the Orthopaedics Department. From the perusal of the note sheet regarding admission, it is clear that on 03.08.2014, the complainant was admitted due to tramatic colaps of D11 Vertrebral body. At the time of admission, the wife of the complainant, has voluntarily gave consent for doing medical procedure as per requirement. The O.P. No.3 to 5 did not examine the complainant from 03.08.2014 to 25.08.2014 every day. The operation was conducted as per prescribed procedure and precautions were taken by the treating doctors. In the neuro surgery, the operation of the spinal cord is not minor and easy. Prior to operation, the complainant was informed that he has two options, first he should take complete bed rest for four months or to undergo surgery. In surgery, his condition would be improved faster than bed rest and D11 and D12 of spinal cord can be done and can be mobilized at the earliest. The O.P. No.3 to 5 did not give assurance to the complainant that the above operation is a general and routine // 20 // surgery in which his gap would be corrected and he would become alright and would get rest. The O.P. No.4 & 5 have elaborately informed the wife of the complainant regarding the operation and probable danger of anaesthesia and obtained consent of wife of the complainant. On 25.08.2014, head of neuro surgery department and renowned doctor, Dr.. Subodh Hiran, conducted surgery of D.L. of the complainant and he was assisted by competent doctor, Dr. Kaushlendra Thakur and Dr. Bisoi. The surgery was done properly and no negligence was committed by the OPs. The complainant earlier filed MRI film and x-ray which were taken back by the complainant for obtaining opinion from higher centre, but the complainant did not file any report of the higher centre. The complainant filed an application for obtaining report from Medical Board/Dr. B.R. Ambedkar Memorial Hospital, Report and report is annexed in the record, in which it is specifically mentioned that the treating doctors did not commit any medical negligence. The complainant did not file any expert opinion in rebuttal of report given by experts, therefore, the complainant is utterly failed to prove allegation of medical negligence. The complainant is not entitled to get any compensation from the OPs, therefore, the complaint is liable to be dismissed. They placed reliance on Revision Petition No.1316 of 2016 Ashok Kumar Pathak Vs. Dr. Swarnava Roy & Anr. decided by Hon'ble National Commission vide order dated 21.12.2016; Martin F. D'Souza Vs. Mohd. Ishfaq, I // 21 // (2009) CPJ 32 (SC); Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. I (2010) CPJ 29 (SC); Smt. Vinitha Ashok Vs. Lakshmi Hospital and others 1986 - 2004 CONSUMER 8129 (NS) Civil Appeal No.2977 of 1992 decided by Hon'ble Supreme Court on 25th September, 2001; Babu Lal Gupta & Anr. Vs. Navjyoti Eye Centre & Ors. IV (2013) CPJ 586 (NC); Tushar Maternity and Surgical Nursing Home Vs. Dhanashri Dhananjay Savardekar & Anr. III (2016) CPJ 446 (NC) and A. Parameshwar Vs. Asian Institute of Gastroenterology, I (2015) CPJ 113 (NC).
9. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the complaint case.
10. Firstly we shall consider whether the complainant is consumer ?
11. According to the OPs, the wife of the complainant is an employee of O.P. No.1 and the complainant was given treatment by the OPs free of cost and no amount was received by OPs, therefore, the complainant is not consumer and OPs are not service provider. The above contention of the OPs is not acceptable.
12. This question was considered by the Hon'ble Apex Court in the case of Indian Medical Association Vs. V.P. Shantha & ors. (Supra), In paragraph No.55, after discussing the whole Law on the subject, // 22 // following conclusions have been drawn by the Hon'ble Apex Court. Paragraph No.55 reads as under : -
"55. On the basis of the above discussion, we arrive at the following conclusions;
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(3) A "contract of personal service" has to be distinguished from a "contract for personal services".
In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contact of personal service'. Such service is service rendered under a "contract for personal services" and is not covered by exclusionary clause of the definition of 'service contained in Section 2(1)(o) of the Act. (4) The expression "contract of personal service" in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1)(o) of the Act. (5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to // 23 // everybody, would not be 'service' as defined in Section 2(1)(o)of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service-is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression 'service' as defined in Section 2(1)(o) of the Act.
(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be 'service' and the recipient a 'consumer' under the Act. (9) Service rendered at a government hospital/health centre/dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service-is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons // 24 // who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act. (12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(o) of the Act."
13. In Laxman Thamappa Kotgiri Vs. G.M., Central Railways & Ors. (Supra), Hon'ble Supreme Court has observed thus :-
"Medical Services - Paid Service - Appellant employee of Railways - Complaint filed that his wife treated negligently in Central Railway Hospital and died. State Commission came to conclusion that hospital had been set up to treat Railway employees and 'predominant competent' of Railway Hospital was free service to Railway employees and not paid service to outsiders. Charges taken from Railway employees were nominal and with reference to maintenance charges of Hospital. State Commission concluded it would not come within definition of 'paid service' and complaint not maintainable. National Commission upheld this view of State Commission. Where medical service rendered as part of terms and conditions of service, this would not amount to free service and would constitute service for purposes of Act. Impugned order set aside."
// 25 //
14. In Royapettah Government Hospital Vs. R. Lakshmi, II (2016) CPJ 639, Hon'ble National Commission has observed thus :-
"4. We have perused the evidence on record and the observations made by the State Commission. We disagree with the argument that, the patient was not a consumer as the OP is a Government Hospital. It was held by Hon'ble Supreme Court in Indian Medical Association v. V.P. Shanta's, I (1996) CLT 81 (SC) = III (1995) CPJ 1 (SC) = 1995 (SLT Soft) 561 and Savita Garg's v. Director, National Heart Institute, IV (2004) CPJ 40 (SC) = IV (2004) SLT 385, that Government Hospitals are also liable for medical negligence. Recently, Hon'ble Supreme Court in the case of V. Krishnakumar v. State of Tamil Nadu & Ors., VI (2015) SLT 769 = III (2015) CPJ
15 (SC) = Civil Appeal No.8065 of 2009, decided on July 1, 2015 held the Government of Tamil Nadu is responsible for medical negligence caused in the government Hospital."
15. The complainant has specifically mentioned that on 03.08.2014, he went to O.P. No.2 Hospital and he got admitted in the O.P. No.2 Hospital for the period from 03.08.2014 to 25.08.201 and the surgery was conducted by the doctors of O.P. No.2 Hospital. The complainant made allegation of medical negligence against the OPs, and O.P. No.2 Hospital is not treating free of cost of the patients and the O.P. No.2 Hospital recovered fees from the patients other then employees and service was provided after taking fees, therefore, it cannot be held that the O.P. No.2 Hospital is a charitable hospital and it treated the complainant free of cost, therefore, the O.P. No.2 and its doctors are service provider and the complainant was treated by OPs, therefore, // 26 // the complainant is consumer of the OPs and consumer complaint filed by the complainant is maintainable.
16. Shri Shishir Bhandarkar, learned counsel appearing for the complainant has argued that the consent of the complainant, was not obtained by the doctors of the O.P. No.2 Hospital.
17. In Dhanwanti Kaur Vs. S.K. Jhunjhunwala (Dr.) (Supra), Hon'ble National Commission has observed that "Negligence of Respondent No.1 Surgeon in giving treatment and failure to obtain valid consent from complainant on her husband - Not given requisite care and attention to complaints which developed post procedure. No negligence of nursing home in giving treatment. Surgeon alone must compensate. Complainant's body defected, suffered mental and physical pain and could not attend to her house and family for nine months. Surgeon directed to pay lump sum compensation of Rs.2 lakh with in terest and cost."
18. Now we shall examine whether the O.P.No.3 to 5 have obtained valid consent from the complainant ?
19. In Patient Progress and Treatment Sheet dated 26.08.2014,, which is annexed in the record of the case at Page No.57, it is mentioned thus :- "
"gedks MkWDVj n~~okjk tkudkjh fn;k x;k fd ejht dh jh<+ dh u'k ds mij ncko vk jgk gS ftlds dkj.k ejht ds nksuks iSj esa detksjh vkbZ gS] vkijs'ku djds u'k ds mij ds ncko dks gVk // 27 // fn;k tk;sxk ftlesa vkijs'ku ds ckn detksjh esa fdruk lq/kkj vk;sxk ;g le; ij gh irk pysxk vFkok ugha Hkh vk ldrk gS ejht dk vkijs'ku iwjh csgks'kh esa fd;k tk;sxk ftlesa tku dk [krjk Hkh cuk jgrk gS ;g lc tkuus ds ckn vkijs'ku ds fy, eSa lgefr nsrh gwaA
20. The consent was obtained by the doctors of the O.P. No.2 Hospital from Smt. Jyoti Agrawal, who is wife of the complainant. Another Consent for Surgery is annexed at page no.60 in the record of the case in which probable risk involved in the surgery, have been mentioned and the same was explained, which runs thus :-
"1. Cardiac arrest.
2. Porcop legs persistant.
3. Middle bowl involve
4. Implant failure
5. CSF /COR.
The signatures of Jyoti Agrawal, Doctor and Witness Dewesh Agrawal, are present.
21. The consent for Anaesthesia & Surgery are annexed at Page No.49 & 50 respectively of the record of the case. Page no.49 i.e. Consent for Anaesthesia bears signature of Rajesh Agrawal, (complainant) and witness Devesh Kumar. Page No.50 i.e. Consent // 28 // for Surgery, wherein signatures of Jyoti Agrawal and witness Dewesh Agrawal are present. In Consent for Surgery, it is mentioned that :-
- During procedure, the circumstances that may arise or special conditions which may be found requiring suspension of extension of the planned procedure or performance of a difference procedure.
- Potential complications which may arise during or after the operative procedure viz :
1. Cardiac arrest
2. Middle bowl involve.
3 Paraparesis / Paraplegia
4. Implant failure
5. Spinal shock".
22. Looking to the above consent letters, it appears that the potential complications, which may arise during or after the operative procedure had been properly explained to the complainant and his wife Jyoti Agrawal and their consent was obtained.
23. The OPs has filed Literature on Accuracy and Safety of pedicle screw fixation in thoracic spine trauma, in which it is mentioned thus :-
".............. with the majority of screws placed between T-5 and T-10.
Of the 201 PSs, 133 (66.2%) were fully contained within the pedicle wall.
// 29 //
24. The OPs have filed literature on Unplanned revision spinal surgery within a week : a retrospective analysis of surgical causes, in which it is mentioned that :-
"Results :
..... The most common surgical causes of reoperation were screw malposition (41 patients).
Background Previous studies have reported that the incidence of significant spinal cord or cauda equine injury following spinal surgery ranges from 0% to 2% [2, 3, ] ....... so the clinical features of patients requiring a requiring a revision surgery within seven days after surgery would hold significant practical value.
Results ................ 658 (6.4%) were performed for fractures, ........ (n=572, 5.5%), ............., a total of 116 patients (50 males and 66 females, mean age, 64.7 years; age range 23-93 years) required revision surgery within seven days from their initial spinal operation....... at the thoracic spine in 11 cases (3.32%, 11/331) at the thoracolumbar spine in 14 cases (2.45% 14/572)...The major surgical causes (in terms of frequency) of revision surgery were screw malposition (incidence rate : 0.82%, 41/4,984),....
Screw malposition Instrumentation No X2 p (n = 4984( instrumentation (n=5366) ... ... ... ... ...
Screw 41 0 n/a
malposition
// 30 //
25. The OPs have filed literature on Complications and problems related to pedicle screw fixation of spine, in which, it is mentioned thus :-
"Abstract ......., hardware failures were observed in 12 patients (10.7%), ...."
26. The OPs have filed literature on complications in spine surgery in which it is mentioned that "Results, In the 105 articles reviewed, there were 79,471/- patients with 13067 reported complications for an overall complication incidence of 16.4 per patient. Complications were more common in thoracolumbar (17.8%) than .....". It appears that the complications were occurred to the complainant after operation of spinal cord.
27. The complainant alleged that the OPs suppressed true facts and they interpolated in bed head tickets. Initially Paraparesis was not mentioned in the bed head tickets, but the same was later on added. The above contention of the complainant, is not acceptable.
28. The OPs pleaded that on 03.08.2014, the complainant was got admitted in O.P. No.2 hospital and during investigation it was found that he was suffering from quadriceps and was suffering from Tramatic Colaps of D11 Vertrebral Body, therefore, the complainant was admitted in the O.P. No.2 hospital and regarding the // 31 // complications, the complainant was informed in detail. Paraparesis was mentioned in the Patient Progress Treatment Sheet dated 08.08.2014. In Patient Registration Details, Paraparesis, is mentioned. In page No.38 & onwards, which are Patient Progress and Treatment Sheet dated 08.08.2014, 09.08.2014, 10.08.2014, 13.08.2014, 15.08.2014, 16.08.2014 and 19.08.2014, Paraparesis, is mentioned, therefore, it cannot be held that "Paraparesis", was added later on. According to the complainant, medical documents produced by him, during chec- kup only tenderness on D11 & D12 of spinal cord and weakness on the front muscles of thigh was found but no Deformity or Neurological deficit was found.
29. We have perused Patient Progress Report and investigation chart. It appears that from very beginning there was mention regarding Paraparasis, therefore, the complainant was advised for operation, so, operation was done. The complainant has not filed any evidence to prove that Deformity or Neurological deficit occurred due to operation conducted by O.P. No.3 to O.P. No.5 in O.P. No.2 Hospital.
30. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and // 32 // treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
31. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., (Supra). in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of // 33 // negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not 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 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.
(3) 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 the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially 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:
// 34 // 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 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 where 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 is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances // 35 // 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 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 // 36 // patients have to be paramount for the medical professionals."
32. In Dr. Sanjay Gadekar Suprathet Hospital and Surgical Research Institute Ltd. Vs. Sangamitra @ Sandhya Khobragade, 2016 (3) CPR 270 (NC), Hon'ble National Commission has observed thus :-
"11 In this context we place reliance upon few judgments of Hon'ble Supreme Court. In Jacob Mathews Case (2005) 6 SCC 1, it was observed by Hon'ble Supreme Court as :
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 SCC 634, the Hon'ble Supreme Court held that :
"in the very nature of medical profession, skills differ 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."
// 37 // The Hon'ble Supreme Court in the case Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480; the bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint held that :
"Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death."
... ... ... xxxxx......
It further observed as, "It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish."
25. In Hucks v. Cole & Anr (1968) 118 New LJ 469, Lord Denning speaking for the Court, observed as under :
"a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field."
33. In Martin F. D'Souza Vs. Mohd. Ishfaq (Supra), Hon'ble Supreme Court has observed thus :-
// 38 // "Medical Negligence - General principles - Medical practitioner not liable for negligence, simply because things went wrong from mischance / misadventure through error of judgment - Medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field. Standard of care has to be judged in light of knowledge available at the time of incident, not at date of trial."
34. The complainant pleaded that on 25.08.2014 the O.P.No.3 to 5 have performed the operation of the complainant without the guidance of Image Intensifier, because of which the screw was fixed slantly in D11 of the spinal cord, which badly damaged the vital nerve of the spinal cord and caused paralysis to the complainant's lower part of his body and complainant also lost his control over his excreta.
35. The OPs have specifically pleaded that the fixation of screws was conducted with the assistance of C-Arm Image Intensifier system. The OPs have further pleaded that the several time it is happens that the person above 50 years of age, due to loss of calcium drill or nail, during the movement of bone, screw is mal-positioned and sometime paraparesis occurred and the complainant came at the stage of paraparesis from stage of paraplegia.
36. In Baljit Singh Vs. Kumar Hospital & Anr. II (2017) CPJ 341 (NC), Hon'ble National Commission has observed that "As per Expert Committee report, the screws along with plate had already been fixed. However, plates and screws were found to have loosened. There could be // 39 // many reasons for loosening of screws, namely, some accident or failure on part of patient to follow medical advice given by Orthopaedic Surgeon at time of discharge. After the surgery, x-ray was done which showed sufficient fixation of implant. If the screws or the plates have loosened for some reason after surgery, doctors who conducted surgery cannot be blamed. Negligence not proved."
37. Merely the screws have loosened for some reasons, the doctors cannot be blamed for committing medical negligence.
38. C.T. Scan Report is annexed in the record at Page No.134 in which it is mentioned that "Post operative status of the compression fracture fixation of D11 vertibral body. The present CT findings are suggestive of comminuted fracture of right side of body of D11 vertebral body and B/L medial displacement of fixation screws at D12 level. Clinical and other correlations to be done. To be compared with previous CT images and be reviewed."
39. The complainant filed an application for obtaining expert report. The matter was sent to Dr. Bhimrao Ambedkar Memorial Hospital, Raipur for giving expert opinion. Dr. Vinit Jain, Professor, Orthopaedics Department, Dr. Atin Kundu, Assistant Professor, Orthopaedic Department and Dr. Rajeev Sahu, Assistant Professor, Neuro Surgery Department, Dr. Bhimrao Ambedkar Memorial Hospital, Raipur (C.G.) sent their opinion on 31.03.2017. In their opinion, it is mentioned thus :- "
// 40 // "mijksDr izdj.k ds laca/k esa fnukad 31-03-2017 dks vfHker gsrq cSBd vk;ksftr dh xbZ xfBr desVh }kjk fn;k x;k vfHker fuEukuqlkj gS%& 1- ejht jkts'k dqekj vxzoky dk pksV dh otg ls Vertibral Body D11 dk QzSDpj FkkA 2- M.R.I. fnukad 06-08-2014 ds vuqlkj 50 izfr'kr ls vf/kd dEisz'ku QSzDpj Fkk ftlesa fnukad 25-08-2014 dks vkWijs'ku (Pedical Screw fixation) fd;k x;kA 3 vkWijs'ku ds ckn ejht dk fupyk fgLlk ydokxzzLFk ,oa laosnu'khy gks x;kA 4 fnukad 26-08-2014 dks flVh LdSu djkus ij ,d Pedical Screw vanj dh rjQ ik;k x;k ftls fnukad 26-08-2014 dks gh Re-Operation dj cny fn;k x;kA 5 vkWijs'ku ds nkSjku lHkh lko/kkuh dks cjrrs gq, Hkh Screw dk viuh txg ij u gksuk bl vkWijs'ku dh laHkkfor Complication esa ls ,d tkuk ekuk Complication gSaA ftlls ydok gksuk] vaxks esa detksjh gksuk] ey ew= ds R;kx esa Control [kksuk] [kwu dh ulks dk {kfrxzLr gksuk 'kkfey gSA 6 vr% ejht dk vkWijs'ku ds ckn fupys vaxks dk ydokxzLr ,oa ey ew= dk R;kx djus esa vleFkZZrk bl vkWijs'ku dk Complication gSaA 1- ,e-vkj-vkb- fjiksVZ¼5 fQYe½ 2- flVh LdSu fjiksVZ¼4 fQYe½ "
40. From bare perusal of the expert opinion, it appears that loosening of screws and mal-position of the screw is known // 41 // complication after operation and termination of control over excreta, weakness of legs and implant failure are also known complications.
41. In the expert opinion, the experts have opined that the Doctors, who treated the complainant did not commit any negligence while conducting operation of the complainant.
42. On 05.12.2016, the complainant filed an application for returning original X-ray, MRI films, for obtaining opinion from Higher Centre of Vellore and the same were returned to the complainant. The complainant again filed the above documents on 02.01.2017 before this Commission, but the complainant has not filed expert opinion or any report of Higher Centre of Vellore. According to the complainant, he went to Higher Centre of Vellore and he obtained the original X-ray, MRI films from this Commission, for perusal of High Centre, then certainly any defect could have been pointed out by the Higher Centre of Vellore. The complainant has again filed above documents before this Commission, but he did not file any report of the Higher Centre of Vellore. The complainant pleaded in para 9 of his complaint that he has taken advice from Dr. Adarsh Trivedi and Dr. Shailesh Kelkar, but reports of above doctors have not been filed by the complainant. The complainant has not filed any document to prove that due to medical negligence committed by the O.P. No.3 to O.P. No.5, the complainant suffered Paraparesis. On the contrary, looking to the expert report obtained from Dr. Bhimrao Ambedkar Memorial // 42 // Hospital, Raipur, it appears that no medical negligence was committed by the treating doctors, therefore, the expert report given by the Experts of Dr. Bhimrao Ambedkar Memorial Hospital, Raipur, is acceptable. On the basis of above report, it cannot be held that the O.P. No.3 to 5 have committed any medical negligence while conducting operation of the complainant.
43. Looking to the Literatures and Procedures adopted by the treating doctor O.P. No.3 to O.P. No.5 of the O.P. No.2 Hospital, it appears that they have acted in accordance with procedures, as prescribed in medical science.
44. The complainant has not been able to prove that the O.P. No.3 to O.P. No.5, have committed medical negligence, therefore, the complainant is not entitled to get any compensation from the OPs.
45. Therefore, the complaint filed by the complainant against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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