National Consumer Disputes Redressal
Darshan Singh vs Dr.Pawan Bansal & Anr. on 18 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3661 OF 2007 (From the order dated 16.07.2007 in Appeal No.454/2001(Pb)/154/07 of the State Commission, UT Chandigarh) Darshan Singh Petitioners(s) Versus Dr.Pawan Bansal & Anr. Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr.David Rao, Advocate For the Respondent(s) : Mr.Mukund Gupta, Advocate for R-1 Mr.Mohan Babu Agarwal, Advocate for R-2. Pronounced on 18th April, 2012 ORDER
PER VINEETA RAI, MEMBER Petitioner herein, Darshan Singh who was the original complainant before the District Forum has filed this revision petition being aggrieved by the order of the State Consumer Disputes Redressal Commission, UT Chandigarh (hereinafter referred to as the State Commission) in Appeals No.454/2001(Pb) and 154/07 which was decided in favour of Dr.Pawan Bansal and another, Respondents herein.
The facts of the case according to the Petitioner who is a farmer, is that while cultivating his fields with a tractor on 05.03.1996, he suffered a fracture in his left arm when the tractor overturned.
His brother got him admitted in the Respondent/Doctors nursing home and as per advice his arm was operated during which a nail was inserted in it. However, due to negligence of the Respondent/doctor soon after the operation, pus developed in the arm and Petitioner started experiencing severe pain and agony. Although, Petitioner remained admitted in the nursing home and under the treatment of the Respondent/doctor, the condition of his arm further deteriorated and because there was a possibility of gangrene seeting in which could have resulted in amputation of the Petitioners arm, he left Respondents nursing home on 12.02.1996 and got himself admitted in the Civil Hospital, Mansa where after being medically examined by one Dr.Ashok Kansal, Surgical Specialist, a second operation was conducted on 15.04.1996 when the old nail was removed and a new nail was inserted, Petitioner was informed by Dr.Kansal that the problem had occurred because the nail had been inserted in an unhygienic and wrong manner. Petitioner was discharged on 16.04.1996. Thereafter, Petitioner did not recover fully from the damage done to his arm because of the first surgery which resulted in its 60% disability due to the negligence of the Respondent/doctor. According to Petitioner, he had to spend more than Rs.50,000/- on his medical treatment. Being aggrieved by Respondents negligence, Petitioner filed a complaint before the District Forum on grounds of medical negligence and deficiency in service and requested that he be paid a compensation of Rs.3 lakhs towards the expenses incurred including the suffering and the loss of proper use of one arm for his entire life.
The above contentions were denied by the Respondent/doctor who stated that as a qualified doctor he had taken all reasonable medical care required in dealing with the case including pre-operative precautions and administering antibiotics to avoid any infection. It was further contended that the nail which was inserted in the humerus bone got jammed due to variation in the canal cavity which can happen despite best medical care and treatment as per medical literature available on the subject and after detecting the jamming, Petitioner was assured that the nail would be detached within 3-4 weeks and a new nail inserted in its place. However, instead of listening to the correct medical advice, Petitioner ran away from the nursing home on 12.03.1996 without informing the Respondent and without adhering to medical advice to take the medicines prescribed by the Respondent/doctor.
There was therefore no medical negligence on the part of the Respondent/doctor and the fault lay with the Respondent.
The District Forum after hearing both parties and on the basis of evidence led by the parties accepted the complaint and directed Respondent No.2(New India Assurance Co. Ltd.) with whom Respondent/doctor was insured in respect of all risks covered while performing his professional duties as a doctor, to pay Rs.90,000/- as compensation and costs to Petitioner within a period of two months from the date of receipt a copy of the order.
Aggrieved by this order, both Respondent/doctor and Insurance Company filed separate appeals before the State Commission.
State Commission remanded the case back for deciding it afresh to District Forum on the ground that one of the Members(Mrs.Amrit Raina) who had signed the order of District Forum had not heard the arguments in the final proceedings of the case. District Forum vide its order dated 10.10.2000 again allowed the complaint and directed both the Respondent/doctor and the Insurance Company to jointly and severally pay the Petitioner an enhanced amount of Rs.2,44,800/- towards compensation for 60% disability to his arm and Rs.10,000/- for medical expenses within two months from the date of receipt of the copy of the order. The relevant part of the order of the District Forum is reproduced:
The OP No.1 has produced a famous book in his defence.
It is mentioned at Page 1648 in this book that after deciding that the fracture is suitable for medullary nailing, careful planning before surgery is necessary. First he must be aware of the same facts about canal medullary. The proper length of the nail be determined pre-operatively. This is best done by Roetgenography(X-ray). A nail of known length is strapped on the lateral side of the normal bone (Humerous), then two antero posterior roentgenogram are made one to show the elbow, distal part of the nail, and the other to show shoulder and proximal part of the nail (elbow and shoulder substituted for knees and hip in the present context). Only roentgenography, however, provide information about the contour and size of the canal.
On page 1707 of this book, on fracture, it is mentioned, if a deep infection occurs following medullary nailing, the involved site usually fracture site should be surgically opened and widely drained. All devitalized tissues, small bone fragments, granulation tissues and haemotorne should be removed and the site is left open to heel accordingly. Cultures should be obtained and appropriate antibiotic are begun. The reply of the affidavit of the OP No.1 does not show if any steps or care was taken as referred to in the book referred by him.
Aggrieved by this order, Respondent/doctor and the Insurance Company filed separate appeals before the State Commission which allowed the appeals and dismissed the Petitioners complaint by observing as follows:
The main contention of Dr.Pawan Bansal is that since, Darshan Singh did not take medicine as prescribed by him, so, he developed pus and further he did not take treatment from the clinic and ran away from the clinic. There is no medical expert evidence on file that Dr.Pawan Bansal had conducted operation of K.Nailing in negligent manner which resulted into formation of pus and subsequently gangrene. The very fact that he escaped from the nursing home of Dr.Pawan Bansal on 12.03.1996 and subsequently got himself admitted in the civil hospital on 14.03.96 shows that he might have developed gangrene during the said period because he may have not taken proper medicines or may have not observed instructions as advised by the operating doctor. Dr.Pawan Bansal has categorically stated that he had inserted K.nail in the humerus bone of the arm of complainant Darshan Singh in a highly hygienic, sterilized manner but it got jammed due to variation in the canal anatomy and possibility of such jamming was always there.
The burden was upon complainant to prove in what manner Dr.Pawan Bansal had acted in a negligent manner which he had failed to prove. From the mere fact that he developed pus or gangrene subsequently does not show that operation was conducted in a negligent manner or nail was not sterilized. If he had not taken medicine for 2-3 days as advised by the doctor i.e. antibiotics then that could be the reason for developing pus and subsequently gangrene.
Hence, the present revision petition.
Counsel for both parties made oral submissions.
Counsel for Petitioner stated that State Commission erred in setting aside the well-reasoned order of the District Forum based on the medical literature available on the subject and allowed the Respondents appeals. Counsel for Petitioner further stated that the entire problem relating to the pus/gangrene in the arm occurred because Respondent/doctor was negligent in not taking due pre-operative care before inserting the nail during the surgery on the fractured arm by not doing a Roentgenography (X-ray) to determine the proper length of the nail to be inserted prior to the surgery which would have provided the necessary information about the contour and size of the canal. Even thereafter there is no evidence that the involved site was surgically opened and drained etc. Respondent/doctor prescribed some antibiotics and told the Petitioner that second surgery could only be done after 3 to 4 weeks. Understandably, the medical treatment for the above reasons did not inspire confidence in the patient who continued to suffer pain and therefore, in the interest of his own health, he was justified in leaving the premises.
Thereafter, he went to the Civil Hospital for further treatment wherein his problem was attended to and the earlier nail was removed and a new nail was inserted after which he was discharged on 15.04.1996.
Counsel for Respondent on the other hand stated that Respondent being a qualified doctor had taken all reasonable medical precautions/skill in treating the patient on whom he operated in a highly sterilized operation theatre after doing the necessary pre-operative tests. However, as can happen despite all precautions, during the procedure the nail got jammed inside the medullary cavity and even though Respondent tried to take it out with a good extractor, it could not be extracted. Thereafter, necessary medication including antibiotics was given to ensure that there would be no infection and patient was explained that the jamming of the nail would be removed after 3 or 4 weeks and a new nail would be put without any problem. There is no evidence on record that there was any medical negligence in treating the Petitioner and even Dr.Ashok Kansal who subsequently treated the Petitioner in the Civil Hospital has stated in his cross-examination that the possibility of the nail getting jammed due to variation in canal cavity is there and it is also a fact that it would take 3 to 4 weeks to remove and insert another nail. In fact, even Dr.Kansal extracted the nail after 3 weeks and thereafter inserted a new nail. Thus, it was the Petitioner who without taking due treatment and medicines ran away from the nursing home of the Respondent/doctor and developed subsequent medical complications. On the other hand, Petitioner did not attach the medical bills and in some of the bills which were attached, the medicines were never prescribed by the Respondent/doctor and were either forged or fabricated. Counsel for Respondent further contended that it needs to be highlighted that the President of the District Forum had dismissed the complaint and the other two Members who had ruled against him being doctors by profession in the same City had probably done so because of professional rivalry.
Further, the State Commission which apart from being a first court of appeal is also a court of fact had correctly appreciating the evidence filed before it and concluded that there was no medically negligence and set aside the order of the District Forum.
We have heard learned Counsel for both parties and have carefully gone through the evidence on record including the medical literature on the subject filed by the parties. It is not disputed that during the course of the surgery conducted on the Petitioner by the Respondent/doctor, the nail which was inserted in the humerus bone got jammed due to variation in the canal anatomy and thereafter Petitioner got himself admitted in the Civil Hospital being dissatisfied with the medical treatment of the Respondent/doctor. The contention of the Petitioner all along has been that the operation conducted by the Respondent/doctor was done in haste without taking due precautions of doing a Roentgenography(X-ray) prior to the surgery which was necessary to determine the proper length of the nail to be inserted. Medical literature confirming the need for the X-ray has also been filed in evidence.
We have carefully perused the evidence on record including the case history and treatment in respect of the Petitioner which was produced before the Fora below. Under the heading Treatment and Investigation it is nowhere mentioned that an X-ray was conducted prior to the surgery. Only the urine examination and blood group test was conducted and some medicines prescribed. When we specifically asked Counsel for Respondent how this fact would be explained, because prima facie it appears that there was ab initio negligence on the part of the Respondent by not getting this important X-ray done, Counsel for Respondents reply was that even Dr.Ashok Kansal, Specialist from the Civil Hospital in his cross-examination stated that it is not necessary to conduct an X-ray. However, he also stated that an X-ray was conducted. We are unable to accept this contention in the absence of any evidence to the effect that an X-ray was conducted including the case history of treatment which also does not mention this fact. Counsel for Respondent has relied on the cross-examination of Dr.Kansal to support his contention that there was no medical negligence. We have gone through the statement of Dr.Kansal during cross-examination and we note that although he has stated that it is not necessary for an X-ray to be conducted, he again states that he would have measured the size of the nail required for insertion through an X-ray prior to the surgery. The District Forum has made the following observations in respect of Dr.Kansals cross-examination:
The said Doctor was summoned as court witness but he has been evasive while replying to the court questions. He has used the words as Roughly Practice with me which shows that instead of replying to the questions according to medical science, he opted to reply in a casual manner.
We agree with this observation of the District Forum, since many of Dr.Kansals responses instead of being specific are either general or evasive.
The principles governing the test of what constitutes medical negligence are now well established by many landmark judgments including of the Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 in which the Honble Apex Court has held that one of the principles to be observed in determining medical negligence is, whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the 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 [(Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582)]. In the instant case, after carefully weighing the evidence on record including the medical literature on the subject, we are convinced that by not conducting an X-ray required for an operation where insertion of a nail is required, there was medical negligence on the part of the Respondent/doctor. The State Commission erred in not taking note of this important omission which resulted in the botched surgery and caused irreversible damage to the arm of the Petitioner who has now 60% lifelong disability in one arms. The State Commission further erred in concluding that the patient might have developed gangrene because he did not take proper medicine or may not have observed the instructions as advised by the operating doctor. These statements are based on conjectures and are not borne out by the evidence on record which clearly indicate that the Petitioner had taken medicines/antibiotics during the operation. The District Forum in its order dated 10.10.2000 after remand, had enhanced the compensation from Rs.90,000/- to Rs.2,44,800/-. Keeping in view the fact that the Petitioner is young man and an agriculturist by profession and because of the negligence of the Respondent/doctor he has become handicapped for life, we are of the view that the enhanced compensation of Rs.2,44,800/- awarded by the District Forum is justified. We therefore, have no option but to set aside the order of the State Commission and allow the revision petition. The order dated 10.10.2000 of the District Forum is restored. Respondent No.1 (Dr.Pawan Bansal) and Respondent No.2 (New India Assurance Co.Ltd.) are directed to jointly and severally pay the Petitioner Rs.2,44,800/- towards compensation for 60% disability of his arm and Rs.10,000/- for medical expenses incurred within six week months from the date of receipt of the copy of the order failing which interest @ 9% per annum shall be applicable on the entire amount from the date of passing of the order by the District Forum.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/