State Consumer Disputes Redressal Commission
Arun Seghal vs Inscol Health Services Pvt. Ltd. on 31 December, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Appeal No. 07 of 2018 Date of Institution 12.01.2018 Date of Decision 31.12.2018 Arun Seghal son of Late Shri Manohar Lal Sehgal r/o House No.2282/B, Sector 47-C, Chandigarh. .....Appellant/Complainant. Versus 1. Inscol Health Services Pvt. Ltd., through its Managing Director, SCO No.18-19, Sector 34-A, Chandigarh. 2. Dr.M.S.Narula, Inscol Hospital, SCO No.18-19, Sector 34-A, Chandigarh. 3. United India Insurance Company Limited, 60, Janpat, New Delhi 110001 ....Respondents/Opposite Parties BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
MR.RAJESH K. ARYA, MEMBER Argued by:
Sh. Deepak Aggarwal, Advocate for the appellant.
Sh. Rakesh Bhatia, Advocate for respondent No.1.
Sh. Vaibhav Narang, Advocate for respondent No.2 alongwith Sh. M.S.Narula, respondent No.2 in person.
Sh. Sukaam Gupta, Advocate for respondent No.3.
PER PADMA PANDEY, PRESIDING MEMBER Initially, the Forum had decided Consumer Complaint bearing No.566 of 2014 on 05.01.2017. Aggrieved against the aforesaid order, appeal bearing No.45 of 2017 was filed by the complainant and the same was allowed and the impugned order was set aside vide order dated 12.07.2017. The complaint was remanded back to the Forum to decide it a-fresh by hearing both the parties and pass speaking order, by making reference of pleadings and evidence on record. Thereafter, vide order dated 08.09.2017, the Forum decided the complaint thoroughly, against which, the instant appeal has been filed.
2. This appeal is directed against the order dated 08.09.2017, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short 'the Forum' only), vide which, it dismissed Consumer Complaint bearing No.566 of 2014.
3. The Forum noted down the following facts narrated by the complainant :-
"2] The complainant has stated that on 10.5.2013 he suffered leg injuries in a car accident and evacuated to the General Hospital Sector 32, Chandigarh where a CT scan was done to ascertain any head injury. The doctor in Sector 32 hospital confirmed fracture in right leg of the complainant. Since there was no proper care and nor bed was available in the hospital for the complainant, he was shifted to the OP No.1 hospital at Sector 34 where OP No.2 Dr.M.S.Narula, the orthopedician checked the complainant and instead of operating upon and putting plates which were necessary due to multiple fractures on both the legs, plastered the left leg while it was bleeding and no medical aid or plastering was done on the right leg. The complainant complained about the acute pain in the right leg but the doctor said there is no fracture on the right leg though on 11.5.2013 after X-rays it was confirmed that both the legs had complex fractures. The complainant was discharged on 16.5.2013 from the Inscol Hospital with the advice to stay on bed with the plaster on left leg. Thereafter, as per advice of the doctor, the complainant visited the OPs on 27.5.2013, 17.6.2013 for checkup. On 26.6.2013, the plaster of left leg and braces of right side were removed by OP No.2 and took X-ray and told the complainant that both the legs are improving and advised for physiotherapy. Accordingly the complainant started physiotherapy on 27.6.2013 and paid Rs.17,500/- for the said purpose. Thereafter the complainant again visited the OPs on 18.7.2013 and 8.8.2013 when the X-rays of both the legs were taken and OP No.2 told the complainant that the leg has healed and told to put weight on left leg but the complainant was unable to put weight due to the fractures which had not healed and complainant was in same position as at the time when he met with an accident. On 9.9.2013 the complainant again visited the hospital and X-rays of both the legs were taken and Dr. M.S. Narula OP No. 2 advised Citi Scan of both the legs to assess the exact position. On 10.9.2013 scan report was received and it was found that both fractures had not joined. It is alleged that OP No.2 after wasting so much time now advised for operation of left side and also right side as there is no healing of bones which were crushed. It is alleged that due to negligence of OP No.2 the complainant remained on bed from 11.5.2013 to 16.9.2013 and had undergone a lot of mental agony and physical pain and spent Rs.43508/- for hospitalization including of visiting fee of Dr.M.S.Narula alongwith room charges and also Rs.1,10,000/- to two attendants for home care nursing etc. When there was no relief in pain, the complainant went to PGI on 16.9.2013 where Dr. Raj Bahadur a senior orthopedician checked the complainant and told that immediate surgery is required of both the legs and also told that surgery was required on the very first day of accident. The complainant was discharged from PGI on 19.10.2013 and now started normal walking with the help of stick. It is alleged that due to sheer medical negligence of the OPs, the complainant had to suffer mental agony and physical harassment and undue financial hardship. The complainant served a legal notice upon the OPs for redressal of his grievance but nothing fruitful came out. Alleging medical negligence on the part of the OPs it is prayed that the complaint be allowed for refund of Rs.2,33,200/- spent on medicines, hospitalization with OPs alongwith compensation of Rs.10 lakh and litigation expenditure etc."
4. The Forum noted down the following facts narrated by Opposite Party No.1 to the complaint filed by the complainant :-
"3] The Opposite Party No.1 in its reply stated that the complainant was initially examined by Dr.Saurabh who is a well qualified medical practitioner. In case the complainant was not satisfied with the initial care treatment which he received at the premises of the answering Opposite Party, he was at liberty to go to any other hospital as he had done earlier. On 11.5.2013 Dr.M.S.Narula reviewed the case of complainant and X-rays showed very minimally displaced fractures of the proximal tibia of left leg with good articular congruity and 'incomplete' non displaced fracture of right proximal tibia with no Articular incongruity. As the X-ray of the right leg showed an incomplete non-displaced fracture, a knee brace was given and POP slab was given on the left knee. Both these splints are enough to immobilize or splint such fractures to relieve pain and allow healing. It is denied that the treating consultant had told him that there is no fracture in the right leg as his X-rays done at night had already confirmed fracture both legs. It is asserted that as per general rule a fracture is required to apply a plaster and operations are an exception. In the present case due to undisplaced nature of the fracture in right leg, OP 2 had applied a brace as the complainant did not want POP in both legs and was done for his comfort. Moreover this brace also serves as a splint for these kind of fractures as it immobilizes the knee. It is denied that on 15.5.2013, the complainant was asked to stand and walk. The complainant was examined daily in the ward by Dr. M.S. Narula and regular dressing of knee wounds were done as per the record maintained by answering OP and the complainant was discharged on 16.5.2013 in satisfactory condition with necessary prescription and advice of follow up. It is asserted that after nine weeks of the injury the complainant was advised gradual graded partial weight bearing and knee mobilization. At every follow up he was improving symptomatically and did not even complain of pain. Even X-rays did not show any sign of non-union or a gap in the fracture fragments. After approximately 16 weeks, when the complainant was complaining of little pain on partial weight bearing and since the X-rays were still inconclusive on union, a CT Scan was advised, which shows that fractures had not united and further treatment and need for surgery was discussed with the complainant by the treating doctor. But the complainant was not interested in surgery and thereafter, never reported back to the OP No.2. It has been vehemently denied that there is any negligence on the part of the OP No.1 & 2. Pleading no deficiency on its part a prayer for dismissal of the complaint has been made."
5. The Forum noted down the following facts narrated by Opposite Party No.2 to the complaint filed by the complainant :-
"4] OP No.2 in its reply, while taking similar line of plea as has been taken by OP No.1, stated that the complainant was advised against surgery primarily for the reason that his skin condition was not conducive for operation; the type of fracture sustained by the complainant did not warrant an operation as in one knee there was a minimal displacement while there was no displacement in the other knee; the age of the complainant, poor bones condition and good articular congruity as is evident from the X-ray report. The OP No.2 treated the complainant with utmost care, diligence to the best of his professional capability. The complainant on 11.5.2013 as a case of injury of both knees with abrasions on knees was presented and X-ray was got done which confirmed that he had fracture of both legs. Since, the X-ray of the right leg showed an incomplete non-displaced fracture a knee brace was given on the right knee and since there was minimally displaced fracture on the left knee, a POP slab was applied. Both these splints are enough to immobilize or splint such fractures. It is pleaded that the complainant was satisfactorily discharged on 16.5.2013 after applying a cast on the left knee with advice of regular follow up. It is further pleaded that since minimum displacement impacted the nature of the fracture it was difficult to confirm the union radiologically. However, symptomatically the complainant was feeling better in his follow ups. The X-ray did not show any change in fracture configuration. Since there was no displacement from original X-rays and due to metaphysical nature of this fracture it had very good chance of union. However, when after approximately 16 weeks when the complainant was still complaining of a little pain on partial weight bearing and the X-rays were still inconclusive on union, a CT Scan was advised clearly mentioning it was being done to assess fracture union. Even the admission card of PGI where the complainant got treated subsequently clearly mentions that diagnosis as "mal-united fracture" and not non-union". The clearly signifies that radiologically or otherwise the fracture had seemed to be united. No doctor had stated at PGI that such fractures need to be operated immediately or on the same day. It is denied that there is any medical negligence on the part of the OPs. Denying all other allegations levelled in the complaint, it is prayed that the complaint be dismissed."
6. The Forum noted down the following facts narrated by Opposite Party No.3 (United India Insurance Company Limited) to the complaint filed by the complainant :-
"5] OP No.3 (United Indian Insurance Company) in its reply stated that there is no privity of contract between the complainant and the answering OP. No cause of action exists against the answering Opposite Party, as such there is no deficiency on the part of the answering OP. The answering OP has issued Professional Indemnity Policy No.040100/46/12/35/00006353, valid for the period from 15.12.2012 to 14.12.2013 in favour of Dr.Manpal Singh Narula subject to certain terms and conditions exceptions/exclusions etc. of the policy in question and the maximum limit of liability granted/covered up is upto Rs.10 lakh in respect of any one year and any one accident. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed."
7. The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
8. The parties led evidence, in support of their case.
9. After hearing Counsel for the parites and, on going through the evidence, and record of the case, the Forum, dismissed the complaint, as stated above.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
11. We have heard Counsel for the parties and have gone through the evidence and record of the case, carefully.
12. Counsel for the appellant/complainant has submitted that the complainant was discharged from the hospital of respondent No.1 without any written advice regarding as to whether he has to stay in bed after discharge or as to how much weight is to be put in each leg after discharge, although orally the complainant was advised to walk with the help of walker. He further submitted the Forum in para No.15 categorically recorded that the complainant visited the hospital for follow up treatment on number of dates but the record of the said visits including directions/advice given to the complainant have not been placed on record. He further submitted that the complainant was put brace on the right leg on 12.05.2013 instead of plaster/cast but the said doctor failed to answer as to how much weight is to be initially put on the leg, which is under brace. He further submitted that in the right leg, the doctor was duty bound to put cast on the right leg and was to perform surgery on the left leg in such type of high impact injuries due to motor vehicle accidents. He further submitted that the surgery was the only option, which was recommendable on the left leg but the doctor waited for the complainant to remain in pain for approximately four months and even the CT Scan was done after 16 weeks and after the report of the same he waked up from the deep slumber and decided for surgery. He further submitted that the hospital patient record was sought vide the legal notice dated 28.05.2014, which was to be supplied within 72 hours but the same was supplied on 13.05.2015 i.e. after about 12 months of the request. He further submitted that while passing the impugned order, the Forum neither referred the expert report nor discussed in the impugned order. He further submitted that the surgery was conducted by Dr.Raj Bahadur in PGI on the same person i.e. the complainant whom Opposite Party No.2 treated with the above stated conditions and after surgery, the complainant was relieved from pain. He further submitted that the doctor had negligently done his duty and prayed for allowing the appeal and setting aside the order passed by the Forum.
13. On the other hand, Counsel for respondent No.1, Counsel for respondent No.2 & Counsel for respondent No.3 submitted that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal filed by the complainant.
14. After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.
15. The core question that falls for consideration before us is as to whether the Forum has rightly passed the impugned order. The answer, to this, question is in the affirmative. On perusal of the record, we find that the impugned order passed by the Forum does not suffer from any infirmity & perversity for the following reasons :-
16. Respondent No.1/Opposite Party No.1 is a multi-speciality hospital, where doctors and various specialists visit including Dr.M.S.Narula, MS Ortho, who has been made a party in the complaint as well as in the appeal as respondent No.2/Opposite Party No.2 specifically. It is not out of place to mention here that Dr.M.S.Narula, Opposite Party No.2 is a well qualified doctor from CMC Ludhiana and has been in practice for more than 12 years in the same discipline. He has vast experience to his credit in handling routine cases and conducted cases of spine & joint replacement surgeries. Opposite Party No.1 in its written statement has mentioned that the complainant was initially examined by one Dr.Saurab, who is well qualified medical practitioner and later on, the case was passed on to Dr.M.S.Narula, Opposite Party No.2. The complainant in fact made an allegation that the doctor who initially examined him as a "quack". In fact, the complainant could have gone to some other hospital or a doctor if he is initially not satisfied by the person who examined him. Dr.M.S.Narula, Opposite Party No.2 reviewed the case of the complainant on 11.05.2013 treated the patient according to his expertise and knowledge and according to the requirement of the condition of the patient at that particular point of time after applying his medical acumen and after assessing the depth of the situation. Dr.M.S.Narula, Opposite Party No.2 observed that "very minimally displaced fractures of the proximal tibia of left leg with good articular congruity and 'incomplete' non displaced fracture of right proximal tibia with no articular incongruity". The x-ray of the right leg showed an incomplete non-displaced fracture and accordingly, the knee brace was given on the right leg and POP slab was given on the left knee. In the judgment and opinion of the doctor, these splints were enough to immobilize or splint such fractures, to relieve pain and allow healing. The doctor himself applied POP splints and in fact done the dressing himself on the left knee. The general rule is that when fractures are there it is to apply a plaster and operations are an exception. Dr.M.S.Narula, Opposite Party No.2 has stated that in the present case, due to undisplaced nature of the fracture in right leg, a brace was given for the same, as the complainant did not want POP in both the legs. Rebutting the contention by the complainant that on 15.05.2013 the complainant was asked to stand and walk, the said plea was contradictory to the contentions, wherein, the complainant himself had admitted that during his stay in the hospital he remained on bed. It is further stated by Opposite Party No.2 that decision of operating and putting plates in a given case of fracture are taken by the medical practitioner based on various symptoms. In the instant case, the line of treatment adopted by Opposite Party No.2 doctor was adequate and in-synchronisation with the medical literature. Opposite Party No.2 while discharging the patient on 16.05.2013 had given the necessary prescriptions and advised including follow up after 10 days. Further, the POP slab was removed after 4-6 weeks and he was advised for review that after three weeks after his first OPD follow up, and also informed that his plaster may be removed depending upon his progress. A perusal of the medical record shows that he had been going for routine examination as per the schedule prescribed and there was no distress or pain expressed by him during this period. The complainant rather was followed up by Opposite Party No.2 and Opposite Party No.1 hospital for four months, which clearly showed that he was fully satisfied with the line of treatment. During this follow up, Opposite Party No.2 was assessing the clinical symptoms of fracture configuration and the complainant was improving symptomatically. Opposite Party No.2 in fact started, as per the recommended protocol, knee mobilization and quadriceps exercises to prevent muscle stiffness. Further, after nine weeks of the surgery, the complainant was advised of gradual graded partial weight bearing and knee mobilization. We find from the record that the complainant was improving symptomatically and did not even complaining pain. It was after a lapse of sixteen weeks, when the complainant was complaining of a little pain during a partial weight bearing and since the x-rays could not conclude whether the fracture was united, a CT Scan was advised and the said CT Scan showed that the said fracture had not united, the diagnosis being that it was a minimally displaced fracture with no articular incongruity and further treatment and need for surgery was required. However, at that point of time, the complainant was not willing to undergo a surgery as stated by Opposite Party No.2. The complainant later on, on his own went to PGI, Chandigarh and got surgery done.
17. The foremost question as to decide is as to whether there was any medical negligence by the doctor i.e. Opposite Party No.2, who treated the complainant at Inscol Hospital. Before coming to this, let us ponder what is medical negligence ? Law of negligence has to be applied according to the facts of the case :-
"48. According to Halsbury's Laws of England Ed.4Vol.26 pages 17-18, the definition of Negligence is as under:-"22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient (c)."
49. In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee (1957) I WLR 582 : (1957) 2 All ER 118 (Queen's Bench Division - Lord Justice McNair observed.
"(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a 24 practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48).
Lord Justice McNair also observed : Before I turn that, I must explain what in law we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action.
59. In Bolam v. Friern Hospital Management Committee (supra), Lord McNair said :"..........I myself would prefer to put it this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art.
68. A three-Judge Bench of this court in Bhalchandra alias Bapu& Another v. State of Maharashtra AIR 1968 SC 1319 has held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in 33
72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-36
"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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
82. The Privy Council in John Oni Akerele v. The King AIR 1943 PC 72 dealt with a case where a doctor was accused of manslaughter, reckless and negligent act and he was convicted. His conviction was set aside by the House of Lords and it was held thus:-41
(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.;
(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation.... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.
(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion....The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."
The Hon'ble Apex Court in the judgment titled as "Kusum Sharma & ors. Vs. Batra Hospital, Civil Appeal No.1385 of 2011, decided on 10.02.2010 had discussed the above facts regarding medical negligence.
18. In the instant case, Dr.M.S.Narula, Opposite Party No.2 had taken due care of the complainant when he was admitted to the Inscol Hospital. An x-ray was taken immediately after admission and proper diagnosis of the nature of injury to both the legs were done, which were of the nature of very minimally displaced fractures of the proximal tibia of left leg with good articular congruity and 'incomplete' non displaced fracture of right proximal tibia with no articular incongruity and knee brace was given on the right leg, since it was an incomplete non displaced fracture and POP slab was given on the left knee. The said line of treatment according to Dr.M.S.Narula, Opposite Party No.2 was enough to immobilize such fractures and are capable of reliving plain. The general rule is that fractures require a plaster first and operations are an exception. The doctor who is a specialist in the said field and who had been treating fractures and similar kind of orthopaedic surgeries for more than a decade has applied his wisdom to treat the said patient by applying a brace and POP plaster. According to him, the said line of treatment would take care of the healing. From the record, we find that Dr.M.S.Narula, Opposite Party No.2 was meticulous enough to do the follow up with the patient and was monitoring his level of pain every time when the complainant visited the OPD. It was only after 16th week that the patient complained of a mild pain while doing weight bearing exercise and Opposite Party No.2 himself advised for a CT Scan through which he came to know that there was minimally displaced fracture, which required a surgery. However, the patient himself was not willing to get the surgery with Opposite Parties No.1 & 2 and had consulted PGI. The PGI in his admission prescription had made a diagnosis that 'proximal tibia malunited' and advised surgery on 01.10.2013, whereas, the same diagnosis was also given by Opposite Party No.2 while the CT Scan was done in his clinic. The complainant had averred in the complaint that while getting himself admitted with PGI, the doctor of PGI had made a remark that a big mistake has been shown by Opposite Party No.2 in not performing surgery on time and there was a medical negligence but the complainant has no proof of this whatsoever. In our opinion, we find that there is absolutely no negligence on the part of Opposite Party No.2 i.e. Dr.M.S.Narula for the reasons given below :-
The complainant on admission to Inscol Hospital after getting himself from GMCH-32, Chandigarh was duly taken care of his injuries, where x-ray was conducted and Opposite Party No.2 treated him for injury in both his legs by putting a brace in one leg and POP plaster on the other, which according to Opposite Party No.2, would suffice at that moment for the healing of the fractures.
He was discharged after a week or so with clear cut instructions for follow up regularly and after nine weeks he was suggested quadriceps exercises for weight bearing.
After the end of 16th week, since the complainant was having a little pain while doing the exercise was suggested, to have a CT Scan and it was observed that 'proximal tibia malunited'.
Opposite Party No.2 doctor himself offered to conduct surgery, whereas, the complainant went away from his silently without rebutting back and got himself admitted in PGI, Chandigarh for performing the said surgery.
The complainant is a chronic smoker, as per the medical record, due to which, healing of the fracture may take a longer time or may not.
The complainant produced medical literature to show that every kind of fracture is treatable with surgery, which may have or may not have authenticity to believe but the expertise of the treating doctor matters a lot in such cases.
The dealing doctor i.e. Opposite Party No.2 was diligently following up with bone healing.
The literature produced by Opposite Party No.2 shows that proximal tibia can be treated non surgically or surgically and there are benefits and risks associated with both ways of treatment.
19. Therefore, we are of the opinion that there was no negligence on the part of treating doctor i.e. Opposite Party No.2 and Opposite Party No.1 in treating the fractures of the complainant. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum is upheld.
20. Certified copies of the order be sent to the parties free of charge.
21. File be consigned to the Record Room after completion.
Pronounced.
December 31st, 2018.
(PADMA PANDEY) PRESIDING MEMBER (RAJESH K. ARYA) MEMBER rb