National Consumer Disputes Redressal
Dr. Vinod Kumar Gupta vs Rupal Yadav & Ors. on 15 January, 2013
NATIONAL
CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4823 OF
2012
(From
the order dated 11.09.2012 in First Appeal No. 373/2009 of the
State Consumer Disputes Redressal Commission,
JHARKHAND, RANCHI)
Dr.
Vinod Kumar Gupta
S/o Sri Bhagwan Das Gupta
R/o 18, Kasturba Path
Behind Jamuna Apt., Boring Road
P.S. S.K. Suri, District Patna Petitioner
Versus
1. Ruplal Yadav
S/o Lt. Mahavir Yadav, R/o Village Nawadih
P.S. Narayanpur, District Jamtara
2. Sh. Purshotam Kumar
S/o Sh.Shyam Sunder Sao
R/o Village Govindpur
P.S. Govindpur, District Dhanbad
Jivan Rekha Poly Clinic
Narayanpur, P.S. Narayanpur
District Jamtara
Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M.
MALIK, PRESIDING MEMBER
HONBLE MR.
VINAY KUMAR, MEMBER
For the
Petitioner : Mr. Kripa Shankar Prasad,
Advocate
Pronounced
on _15.01.2013
ORDER
JUSTICE J.M. MALIK
1. Shri Ruplal Yadav, the complainant was operated for hydrosil by Dr.Vinod Kumar Gupta, OP in Jeevan Rekha Poly Clinic, Narayanpur, P.S. Narayanpur, District Jamtara, on 03.02.2008. Before operation, the complainant was given three injections which caused burning and swelling. Thereafter, the complainant was examined at Ranchi Institute of Medical Sciences (RIMS). There it transpired that burning was due to wrong injections given to him. His right arm was amputated from elbow joint on 15.02.2008. The complainant lodged a complaint regarding medical negligence against the OP on 09.04.2008. The District Forum directed the OP to pay Rs.4,50,000/- for medical negligence, Rs.30,000/- for medical expenses and treatment jointly with Jeevan Rekha Poly Clinic to the complainant. Costs of Rs.10,000/- was also awarded in favour of the complainant.
2. Aggrieved by that order, the OP filed an appeal before the State Commission which dismissed the same vide order dated 11.09.2012. Now, the OP has approached this Commission in revision petition.
3. We have heard the counsel for the petitioner. He vehemently argued that there is no evidence that the negligence of petitioner is involved in this case. There is no evidence that the gangrene was occurred due to any injection. The fact of development of gangrene was not denied by the petitioner but he explained that he may have caused this dreadful problem. The petitioner does not deny the factum of amputation of right arm. The learned counsel for the petitioner has invited our attention towards the report of expert. Dr. Nawal Kishore Jha. His evidence was recorded as PW-4. He deposed that Ruplal Yadav was admitted to the Surgery Department of RIMS, on 07.02.2008. He deposed that Dr. Marshan, working under him had admitted the complainant after treating the patient and found that there was blackening of right hand from two days. He admitted that the patient had undergone the operation of his hydrosil and was injected on the right arm and as a consequence, the right hand had blackened. The Doctor also sought second opinion from Dr.J.Prasad, who is the Head of the Department and has advised the operation. He admitted that the amputation of the patient was done by taking elbow joint. This is called disagiticulation.
In his cross-examination, he stated that the disease which had occurred to the patient in the right hand cannot be said with certainty that it has occurred due to the injection. He testified that the disease which has occurred to the complainant is called gangrene and the same is caused due to several reasons. The learned counsel for the petitioner vehemently argued that the expert advice is vague, evasive and leads us nowhere.
4. We find no force in these arguments. In his written statement, the OP stated that it is not part of his job to give injection. It was explained that injection was given in the right hand by Nursing Staff. The OP has not denied either the development of gangrene or the amputation of right hand. In Para Nos. 7 and 8, the State Commission was pleased to hold as under:
7. In such admitted fact the issue remains that after operation on 03.02.2008, the complainant complains of pain and blackening of his right arm. It is also proved that owner of Jeevan Rekha Poly Clinic on 4th or 5th February, 2008 advised him to consult other doctor after which he went to Ranchi. The doctors at RIMS diagnosed the pain and blackening of right arm of complainant due to gangrene after the operation. In these admitted facts, the appellant Dr.Gupta personally submitted before us that gangrene cannot happen due to intramuscular injection. However, he has not challenged this finding supported by Dr.N.K. Jha in the lower forum.
8. In these circumstances, the only probable cause of gangrene may be the injection dated 03.02.2008. It is not improbable nor proved to have occurred due to any other cause. In this context, reference may be made to Bolams test to ascertain the alleged negligence by a medical praction. The appellant has not asserted that he adviced any treatment after the complainant made the complaint to him or proprietor of the clinic on 4th February, 2008. Therefore, it is certainly case of medical negligence by the appellant. In support of this view, The Treaties on Medical Negligence by Michael Jones book gave illustrations where gangrene developed in Claimants arm following an intra-muscular injection, relied upon in Cavan Vs. Wilcox (1973) 44 DLR (3d) 42. This has been found to be a case of medical negligence and held to be applied as RES IPSO LOQUITOR. This has been approved by the Honble Supreme Court vide para 46 of the judgment reported in III (2010) CPJ 1 (SC) in V.Krishna Rao Vs. Nikhil Superior Spl. Hosptial & Others.
5. It is well settled that it is the complainant who is to carry the ball in proving his case. However, when he proves on record some prima facie evidence, the onus shifts on to the OP. The fact that there was development of gangrene was never denied.
The expert Dr.N.K.Jha is a Doctor.
A thorough study of his statement clearly goes to show that he tried to save the OP. It is apparent that a doctor will refrain from criticising the other doctor when both of them reside in the same city. Development of gangrene is one of the causes. No other cause was pointed out or proved.
Onus of proof shifts on to the Doctor to explain as to why did the gangrene develop. The OP has failed to rebut this evidence and facts speak for themselves. It has also transpired that Rekha Poly Clinic has already paid 50% of the award to the complainant. The State Commission rightly held that 50% of the remaining compensation be paid by the petitioner, with interest.
6. The revision petition has no substance and therefore the same is hereby dismissed.
....J (J.M. MALIK) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER dd/20