National Consumer Disputes Redressal
New India Assurance ... vs New India Assurance Co.Ltd./Virender ... on 21 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2702 OF 2007 (From the order dated 11.05.2007 in Appeal No.957/04 of the State Commission, Uttar Pradesh) New India Assurance Co.Ltd. .Petitioner Versus Virender Singh & Ors. ..Respondents REVISION PETITION NO.2703 OF 2007 (From the order dated 11.05.2007 in Appeal No.993/04 of the State Commission, Uttar Pradesh) Dr.K.K.Mittal .Petitioner Versus Virender Singh ..Respondents BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For the Petitioner : Mr.Kishore Rawat, Advocate with Dr.K.K.Mittal, Petitioner in-person For the Respondents : Mr.D.K.Mehta, Advocate with Mr.Virender Singh, Respondent in- person. Pronounced on 21st September, 2011 ORDER
PER VINEETA RAI, MEMBER These two revision petitions have been filed by New India Assurance Co. Ltd. (R.P. No.2702/2007) and Dr.K.K.Mittal (R.P. No.2703/2007) being aggrieved by the common order of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the State Commission) in Appeal Nos.957/2004 and 993 of 2004 wherein Shri Virendra Singh & others were Respondents.
Since the parties involved and the facts pertain to the same incident, both R.Ps. are being disposed of by a common order by taking the facts from R.P.No.2703 of 2007.
In his complaint before the District Forum, Respondent/ Complainant had contended that on 21.10.1996 he fell in the bathroom of his house at Kavi Nagar, Ghaziabad and took the entire burden of fall on the right side after which he felt acute pain in his right arm from the shoulder to the wrist and found that he was not in a position to move or straighten his arm.
Therefore, suspecting fracture, he went to the Medical Center of the Petitioner/doctor and explained regarding his fall and the pain in his right arm. Petitioner after getting the X-ray done of the upper arm above the elbow diagnosed a fracture in the upper arm above the elbow i.e. in the shaft of the humerus bone and after setting the bone and getting another X-ray done, put a plaster on the right arm from below the shoulder till the wrist. He charged Rs.830/- from the Respondent. Respondent was prescribed medicines and asked to come to the Petitioners clinic for follow-up visits which he did on 7 occasions. The plaster was finally removed on 20th February, 1997 and Petitioner informed him that the fracture had clinically united. However, since the arm continued to be stiff and there was pain in the elbow, Petitioner prescribed painkillers and advised the Respondent to undergo physiotherapy at Yashoda Hospital, Ghaziabad. Despite the painkillers and physiotherapy the pain and stiffness persisted so the Respondent consulted doctors at Shriram Jaipuria Medical Centre on 20.04.1997 where the radiologist conducted another X-ray of the upper arm and the elbow and found that the bones in the upper arm had not united and there was a fracture in the elbow which in medical terms was described as fracture of the Olecranon. Since, Respondent has been under the treatment of the Petitioner for over 5 months, he immediately contacted and confronted him with the findings of the doctors at Shriram Jaipuria Medical Centre. Petitioner again took an X-ray and admitted his mistake and offered to undertake corrective surgery for Rs.40,000/-. Respondent refused this offer having lost faith in the Petitioner and got himself admitted at Mool Chand Khairati Ram Hospital, New Delhi where a surgery was conducted on 05.05.1997 and both fractures were properly set. However, because of the medical negligence of the Petitioner and despite the delayed corrective surgery, even today Respondent is unable to straighten his right arm and therefore, has been deprived of its full movement throughout his life. Respondent, therefore, sent a legal notice to the Petitioner claiming compensation amounting to Rs.5 lakhs on grounds of medical negligence and after not having received proper response from the Petitioner, he filed a complaint before the District forum on grounds of medical negligence and requested that Petitioner be directed to pay Rs.5 lakhs as compensation along with a sum of Rs.1,40,000/- towards actual pecuniary loss and Rs.3,60,000/- towards mental agony, tension, pain and anxiety along with interest @ 18% per annum from the date of filing of the complaint till realization and such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.
Petitioner denied the above contentions of the Respondent.
According to him Respondent complained of pain in the arm above the elbow and chest but did not mention that he had pain in the elbow or below the elbow when he visited his clinic on 21.10.1996.
Therefore, an X-ray of the arm above the elbow was immediately taken by a qualified Radiographer where a fracture in the upper arm above the elbow i.e. in the shaft of the humerus bone was detected for which he was provided adequate standard ortheopaedic treatment. It was only after an X-ray taken on 20.02.1997 which confirmed that the fractured bone had set properly and shown perfect alignment that the Respondent was advised to undergo physiotherapy in another hospital.
Regarding the second fracture of the Olecranon, Petitioner contended that in a domestic fall of the nature described by the Respondent, he could not have sustained this fracture because fracture of the elbow normally takes place in situations when the limb is involved in a high impact accident which was not so in this case. Therefore, in all probability, the second fracture was subsequently sustained after the healing of the first fracture.
The District Forum after hearing both parties and considering the evidence on record allowed the complaint by observing as follows:
This fact has been absolutely established on record that the right arm of the complainant was fractured due to his fall towards right side and that his entire weight came on the arm. The respondent No.2 has taken the X-ray of the arm only from shoulder to elbow which is called humerus in medical language and after the examination only the bones of humerus were set. It is also appearing on record that the respondent no.2 Dr.Mittal did not get any X-ray covering the elbow. In fact his attention has not gone to the injury of the elbow area. Dr.Vipin Tyagi who is well known Orthopedic surgeon of Ghaziabad had stated the words neglected fracture olecranon in his prescription dated 22.04.1997.
Indirectly, this is an opinion that Dr.Mittal, respondent No.2 has failed to find out about the fracture of olecranon. Same opinion has been given by another surgeon Dr.Aruna Goel in her prescription dated 22.4.1997.
Respondent No.2, Dr.Mittal is a qualified Ortho surgeon and due to this reason it is implied that he is also Ortho Radiologist. Despite the same out of the two fractures humerus and olecranon, Dr.Mittal has treated only one fracture of humerus and missed the other. By doing such act of omission, he has committed a palpably wrong diagnosis which comes under the category of medical negligence or carelessness.
It is also the established legal position that despite the knowledge of wrong diagnosis as is revealed from the opinion of Dr.Vipin Tyagi and Dr.Govil the respondent No.2 was adamant on his earlier diagnosis which itself proved that by not changing its earlier palpably wrong diagnosis Dr.Mittal has committed medical negligence and carelessness towards the complainant.
The same is more serious because of the reason that Dr.Mittal is a highly qualified surgeon.
Definitely, Dr.Mittal has not acted as a doctor of ordinary level and has caused deficiency in service towards the complainant.
The District Forum directed that the Petitioner/doctor who is insured with the New India Insurance Company, Respondent No.4 before the District Forum, will pay the Respondent Rs.1,80,000/- with simple rate of interest @ 5% within two months from the date of the order and Rs.3,000/- as litigation costs.
Aggrieved by this order, Dr.K.K.Mittal and the New India Insurance Company filed separate appeals before the State Commission which also held the Petitioner/doctor guilty of medical negligence by essentially reiterating the reasoning given by the District Forum in its order in reaching a similar conclusion.
Hence, the present revision petition.
Counsel for both parties were present as also the Petitioner/doctor and Respondent in-person.
Counsel for Petitioner at the outset stated that from the medical records on file, it was clear that the Respondent was given the best possible medical treatment by the Petitioner and his well qualified staff including the Radiographer who took the X-ray. Therefore, any allegations to the contrary by the Respondent is not borne out by the facts on record. Further, from the description of the fall by the Respondent wherein he fell on right his side, it was not possible for him to have sustained a fracture of the elbow as well as the fracture of the shaft humerus bone. Injuries to the elbow resulting in fractures are usually a high impact injury i.e. when a person is traveling in a car keeping his elbow outside the window which may get hit. This is also supported by medical literature, which was produced in evidence before the Fora below. The Petitioner/doctor who was personally present in Court also demonstrated that when the entire weight falls on the right arm in an attempt to stop a fall and the fall is not on the elbow or on the hand then fracture of the Olecranon is not possible. The first time that the Respondent complained of elbow stiffness was at Yashoda Hospital, Ghaziabad and that too following a query after which an X-ray was done one month later. If indeed, there was a fracture in the elbow on 21.10.1996 i.e. at the time of the first fracture, such late detection was not possible and, therefore, the only presumption that can be drawn is that the second fracture occurred as a result of an injury sustained by the Respondent after the first fracture had healed and that is why it was detected on 22.04.1997 i.e. 5 months after the first injury. The statement of Dr.Vipin Tyagi on which the District Forum has relied that the fracture in the elbow was perhaps 6 months old cannot also be sustained, particularly, in view of a subsequent statement on 21.02.2000 made by the same Dr.Tyagi wherein he had stated that age of fracture cannot be evaluated with certainty by X-ray film whether it is one day old, one week old, one month old, three months or six months old and so on. It is also important to note that the Respondent on whom there was onus to prove medical negligence by producing medical expert/medical opinion to corroborate his allegations of medical negligence has totally failed to do so. Learned Fora below erred in reaching a conclusion of medical negligence in the absence of such evidence. Their conclusions are thus based on surmises, conjectures and wrong statements.
Counsel for Respondent on the other hand stated that Respondent had clearly explained to Petitioner/doctor that he had fallen in the bathroom and that he was experiencing severe pain in the entire arm from the shoulder to the wrist. Despite this specific complaint, the Petitioner/doctor got only the upper arm X-rayed, thus missing the fracture of the Olecranon.
The fact that the Respondent had suffered two fractures was subsequently confirmed from reports of other hospitals/doctors including the report from Sitaram Jaipuria Medical Centre. Respondent who was present in-person further displayed his right arm to us which indicated that he could not straighten it till date and therefore, this has become a lifelong disability. The contention of the Petitioner that Respondent did not substantiate his contention with any medical expert opinion to prove his case is incorrect.
Respondent had produced in evidence the opinion of Dr.Vipin Tyagi and Dr.Arun Goel to prove that he had suffered a fracture of the Olecranon and that in all probability it was about 6 months old.
We have heard learned Counsel for both parties, the Petitioner and Respondent at length and have carefully considered the evidence on record.
It is not disputed that the Respondent after suffering a fall in his house went to the Petitioner/Doctors clinic wherein an X-ray was conducted and he was treated a fracture of the humerus bone and that he continued to visit the Petitioners clinic for a period from 21.10.1996 to 20.02.1997. However, the statement of the Petitioner/doctor that the Respondent did not inform him about the pain in the elbow is factually not correct because it is clear from his complaint before the District Forum as also from subsequent statements that Respondent had clearly mentioned that following the fall, he was suffering great pain in his entire arm from the shoulder to the wrist which obviously includes the elbow. It was for the Petitioner as an Ortheopaedist to have not depended only on a general statement of the patient regarding the nature of his fall; he should have detected the second fracture through specific queries to the patient and through proper diagnosis including X-ray of the entire arm. Respondents contention that the case was not properly diagnosed because the X-ray was not conducted by a professional person, also has some force because the Petitioner could not reply satisfactorily to our specific query to him regarding the name and qualification of the person who had done the X-ray. Petitioners contention that the Respondent complained of pain and stiffness in his elbow only after 5 weeks is well explained by the fact that he could not have done so much earlier because soon after his fall, his entire arm from the elbow to the wrist was put in plaster by the Petitioner. The fact that a second fracture of the Olecranon had taken place is not in dispute and there is evidence of an expert, Dr.Vipin Tyagi who is a qualified Ortheopadic Surgeon that in all probability, this fracture was about 6 months old. The second statement made by Dr.Tyagi diluting his earlier statement is clearly an afterthought and cannot be relied upon.
The contention of the Petitioner that the second fracture had occurred after the first fracture had healed is also based on surmises and conjectures and not on any credible evidence. On the other hand, we are of the view that the Respondent has been able to produce adequate medical evidence to show that he had also sustained a second fracture of the Olecranon after his fall, which was set right after a surgical intervention on 20.05.1997 in Mool Chand Hospital, New Delhi and which was overlooked by the Petitioner who did not even conduct an X-ray of the entire arm. In other words, the evidence produced by the Respondent in respect of his subsequent treatment, surgery and medical opinion of the doctors are adequate proof in support of his case of medical negligence against the Petitioner/doctor. The principles of what constitutes medical negligence is now well established by several judgments of this Commission as well as of the Honble Supreme Court and these inter alia include; whether a doctor adopts the practice of clinical observation and diagnosis, including diagnostic tests and treatment in a case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In the instant case, we are of the view that the Petitioner by not exercising even the basic care and judgment required in the case failed to detect the second fracture which amounts to medical negligence. The learned Fora below being the courts of fact and taking into account the principles of what constitutes medical negligence as well the evidence filed before it rightly concluded that the Petitioner was guilty of medical negligence. We agree with the same and find no merit in the present revision petition which is dismissed. The order of the State Commission is upheld. We direct that the Petitioner/doctor who is insured with the New India Insurance Company, Petitioner in R.P. No.2702 of 2007, to pay the Respondent Rs.1,80,000/- with interest @ 5% within two months from the date of the order and Rs.3,000/- as litigation costs failing which interest @ 9% will be applicable on the entire amount from the date of default.
Sd/-
..
(ASHOK BHAN J.) PRESIDENT Sd/-
..
(VINEETA RAI) MEMBER /sks/