National Consumer Disputes Redressal
Dr. Manoj Jain vs Vinod Sahu & Anr. on 13 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1559 OF 2015 (Against the Order dated 23/04/2015 in Appeal No. 322/2014 of the State Commission Chhattisgarh) 1. DR. MANOJ JAIN REGISTRATION NO-5644, IN FRONT OF NEW BUS STAND,SAUBHAGYA COMPLEX, DISTRICT : DURG C.G ...........Petitioner(s) Versus 1. VINOD SAHU & ANR. S/O SHRI KAPURCHAND SAHU, R/O QUARTER NO-164-25,PACHRIPARA ,DURG DISTRICT : DURG C.G 2. THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE-PARMAMAND BHAWAN,DR.RAJENDRA PRASAD CHOWK, DURG C.G ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Rajesh Kumar Bhawnani, Advocate For the Respondent : VINOD SAHU & ANR. THE ORIENTAL INSURANCE CO LTD Dated : 13 Oct 2015 ORDER DR. S. M. KANTIKAR, MEMBER
1. The complainant, Mr. Vinod Sahu, suffered fracture on left Navicular Bone (bone in foot) on 30.10.2008. He consulted Orthopedic Surgeon OP 1/Dr. Manoj Jain, on 31.12.2008. After X-ray, it was diagnosed as simple fracture. OP applied plaster of paris (POP) cast below knee and prescribed medicines for seven days and bed rest for one month. After 7 days, the patient consulted OP 1, he further prescribed medicines for 15 days. On 28.1.2009, OP 1 removed the plaster and after clinical examination, he declared that fractured bone was healed and further advised medicine for 10 days. Then, during review, the pain and swelling persisted, but OP assured that it would be alright, within a month. On 11.4.2009, the patient consulted another orthopedic surgeon, who advised for operation at the fracture site to fix the bone at its position. Few other orthopedicians opined that pain was due to non-union of fractured bone and because of callous formation. Therefore, bone grafting would be helpful, but it is more expensive and painful also. Hence, alleging medical negligence, the complainant filed a complaint before the District Forum, Durg, Chhattisgarh on 27.01.2010.
2. The District Forum dismissed the complaint. Against the order of District Forum the complainant filed first appeal before the State Commission, Chhattisgarh. The State Commission allowed the appeal and directed the OP to pay Rs.1,00,000/- towards compensation for medical negligence and Rs.50,000/- towards compensation for mental agony and financial loss suffered, with interest @9% per annum, from the date of filing of the complaint, till its realization.
3. Aggrieved by the order of State Commission, the OP/doctor filed this revision petition.
4. We have heard the petitioner in person and the learned counsel was also present. The petitioner/OP explained that, the patient was treated properly. The patient was asked to undergo surgery by a latest technique for navicular fracture, but the complainant showed his inability due to poor financial condition, therefore, requested to apply POP cast and some medicines. The patient did not follow the instructions. He was riding the motor cycle after putting the POP cast. On 28.1.2009, POP was removed and the complainant was asked to take X-ray of the fractured site, but he refused, due to poor financial condition. Hence, OP 1 prescribed only medicines. The learned counsel submitted that, the District Medical Board gave clean chit that there was no negligence on the part of OP 1 and fracture of navicular bone needs long treatment and even after treatment, the swelling and pain may persist for a long time. The OP further submitted that the patient never came to him, after 29.2.2009. It was due to patient's own negligence. The patient did not follow the instructions. The counsel relied upon the medical literature from a book - Watson-Jones Fracture and Joint Injuries.
5. We have perused the medical record and prescriptions available on file. The OP treated the patient properly, but the main controversy swirls around, whether, it was necessary for the OP-1 to take x-ray, after removal of POP to confirm union of navicular bone fracture? The prescriptions of OP-1 showed entries about medication only, but nowhere, we have noticed about the advice for X-ray, after removal of the POP cast. During arguments, the OP-1, Dr.Manoj Jain, himself admitted that, he did clinical assessment after removal of POP cast, he did not feel necessary to take X-ray of the fractured site.
6. We are of considered view that it was the act of omission by the doctor. It was not a standard of practice, it was a deficiency in service, hence a medical negligence. According to the book Watson-Jones Fracture and Joint Injuries that after completion of treatment, the removal of POP cast, the doctor should take X-ray, to confirm about the union of fractured area. If there is no union or malunion, doctor should not delay further, but he should take alternate mode of treatment, by proper surgery. The OP-1 failed to do so, what he was supposed to do, thus, we hold OP-1 negligent.
7. From a bare perusal of literature of Watson Jones, it is evident that the foot should be immobilized in plaster for about four weeks and the functional result is always good. It must be remembered, however, that this injury can be only a part of a more serious subluxation of the mid-tarsal joint and X-rays should be carefully scrutinized to exclude displacement of the forefoot.
8. In the expert report (Ex.A-1), it is mentioned that if the gap between the fractured bones is 3 to 5 mm then, advice should be given for the operation. Even after entire treatment, if bone is fractured, there will be traumatic arthritis, which needs operation.
9. We are of considered view that, it was not a bonafide mistake. In a decision in the case of Spring Meadows Hospital & Anr. v. Harjot Ahluwalia through K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39, their Lordships observed as follows:
" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
We also reject the contention of OP that the patient was reluctant to undergo X-ray and operation, but preferred medicines. In this context, it was the bounden duty of the doctor to decide the correct line of treatment; doctor wouldn't just blindly obey the wishes of the patient., which itself would be unethical as discussed by the Hon'ble Supreme Court in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Ors. [(2009) 9 SCC 221].
10. In Vasudeva P. Kamath (Dr.) Vs. Vishwanath III (2007) CPJ 102 (NC), this Commission has observed as:
"In view of the fact that at the time of removal of POP cast, petitioner did not take X-ray to satisfy him that the bones have joined or not, and not recording if any clinical examination was done to satisfy him that this has happened, is a clear case of medical negligence for which the complainant had to go to other hospital where he was properly treated and bones were joined. The negligence on the part of the petitioner, resulted in prolonging - both physical and mental agony to the complainant and his son. We find that the awarded amount is a pittance in these given circumstances."
11. On the basis of foregoing discussion, we do not find any merit in this revision petition. Therefore, the revision petition is dismissed.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER