National Consumer Disputes Redressal
Baljinder Singh(Minor) Through His ... vs National Insurance Co.Ltd. & Ors. on 1 January, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.591 OF 2007 (From the order dated 20.11.06 in Appeals No.366 & 367/03 of the State Commission, Punjab) Baljinder Singh (Minor) Petitioner Through his father Amrit Singh Versus National Insurance Co. Ltd. & Ors. Respondents BEFORE : HONBLE MR.ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For the Petitioner : Dr.Ramesh K.Haritash, Advocate Mr.Anil K.Sharma, Advocate For the Respondents : Mr.R.C.Mishra, Advocate for R-1 Mr.S.S.Tripathi, Advocate for R-2 & 3. Pronounced on 1st April, 2011 ORDER
PER MRS.VINEETA RAI, MEMBER The present revision petition has been filed on behalf of Baljinder Singh, a minor, through his father Amrit Singh (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Punjab in Appeals No.366 and 367 of 2003 which set aside the order of the District Forum and decided in favour of the National Insurance Co. Ltd. and Dr.Ashutosh Gupta and Dr.Anuradha Gupta (hereinafter referred to as the Respondents).
The facts of the case according to the Petitioner are that on 11.07.2000, one Baljinder Singh a minor, aged 10 years fell from a Jamun tree and was immediately admitted to the Accident Care and Adarsh Bone & Joint Hospital, Phagwara which was run by the two Respondents/doctors.
He underwent treatment from 11.07.2000 to 15.07.2000 after which he was discharged with assurance by Respondents that he will be cured. However, since his condition and pain deteriorated, he was referred to Dayanand Medical College & Hospital, Ludhiana where Dr.Bassi who was Head of the Department of Orthopaedics in that hospital, after examining the child informed the Petitioner in the presence of Petitioners wife and Sarpanch that because of the presence of dust and small pebbles in the wound, there was severe infection and consequently the leg had to be amputated. This occurred because of medical negligence and deficiency in service on the part of the Respondents/doctors who first treated the patient. The Petitioner, therefore, filed a complaint before the District Forum on the above grounds and sought a direction that the Respondents pay the Petitioner Rs.2 lakhs on expenditure of his sons medical treatment at the two hospitals including miscellaneous expenses and Rs.3 lakhs for loss of leg, mental suffering and harassment.
Respondents denied the contentions of medical negligence. They admitted that the child had been brought to the hospital with a fracture of the left femur which was compound and multiple and as per the history given by the relatives of the injured, he had fallen on soil from a Jamun tree and infection was created in the wound. Respondents/doctors thereafter cleaned the wound and treated the child. They denied that the patient had remained in their hospital from 11.07.2000 to 15.07.2000. According to them, the child was discharged from the hospital on 12.07/2000 at the insistence of the Petitioner but was brought back to the hospital with complaints of pain the next day. The plaster was slit and opened and the wound re-examined but no serious problem was detected. On 15.07.2000 the child developed fever and the wound was again cleaned, adequate splintage was used and the child was given superior antibiotics. An ultrasound test of the abdomen was done which was found to be normal. However, since there was retention of urine and fever, the patient was referred to Dayanand Medical College(DMC) & Hospital, Ludhiana by the Respondents/doctors on the advice of a paediatric surgeon since it had better anesthesia and kidney facilities. The leg had to be amputated 5 days after the patient was admitted and if there had been any major problem the amputation would have been done on the same date.
Respondents denied that there was any negligence or deficiency in service on their part in treating the patient and requested that the complaint be dismissed with costs.
The District Forum after hearing both parties accepted the complaint. The operative part of the order of the District Forum reads as follows:
There is no dispute regarding the rule of law laid down that onus of proving medical negligence is upon the complainant.
However, it is well settled rule of law that each case has to be decided on its own facts and circumstances of the case. Complainant, Baljinder Singh, is a minor aged about 10 years at the time of accident. His father Amrik Singh is an illiterate, poor villager.
If he could not examine any medical expert on account of his poverty and paucity of money, the other evidence led by him regarding negligence on the part of the respondents cannot be thrown away.
Amrik Singh has produced his own affidavit and affidavits of other deponent witnesses discussed above.
From the admissions of the respondents in their written statement it has been admittedly proved that condition of the complainant became worse due to complications which arose on account of negligent treatment given by respondents to the complainant. Had the wound of the injured been properly cleaned and properly plastered the same could not have developed more complications.
As per admission of the respondents in the written statement after plaster was opened a patch was created in the skin condition of wound and had the necessity of creating patch of skin over the wound arose it itself adequate proof that at the time of first plastering the would it was not properly cleaned and that is why condition of the wound became worse and patch was to be created. Thus, in the facts and circumstances of the case from the admissions of the respondents, in our opinion, deficiency in service and negligence on the part of the respondents giving proper treatment to Baljinder Singh, complainant, have been amply proved...
The District Forum directed the Respondents to pay Rs.5 lakhs as compensation for loss of left leg and expenses for medical treatment along with interest @ 15% per annum from the date of filing of the complaint till realization, Rs.15,000/- as compensation for mental tension and harassment and Rs.5,000/- as costs of litigation within two months from the date of receipt of judgment.
Aggrieved by this order both sets of Respondents filed separate appeals before the State Commission. The State Commission during the course of proceedings inter alia summoned Dr.J.L.Bassi of DMC Hospital who had treated the patient and amputated the leg, to assist the Court in coming to a just conclusion in the case. Dr. Bassi when questioned specifically categorically denied that he had found any dust or small pebbles or any other foreign body in the wound of Baljinder Singh and also from the records, he certified that the treatment given to the patient at the Accident Care and Adarsh Bone & Joint Hospital, Phagwara was proper and adequate and there was no medical negligence.
The State Commission taking into consideration this important fact and other relevant evidence allowed the appeals through a single order, the operative part of which is reproduced:
We find nothing material in the statement of the expert to establish that the treatment given to the complainant was in any manner wrong. He denied in his statement that he had found dust and small pebbles when he opened the wound of the complainant and the same were shown by him to Amrik Singh, Gulzar Singh and Sarpanch Tarlok Singh. Learned counsel for the appellants has further argued that there is nothing on record to establish negligence on the part of the doctors. Simple affidavits by the father of the complainant and a few well wishers are no substitute and do not meet requirements of law. The poverty of the father of the patient will also not discharge him from this onus. In these circumstances, learned counsel for the appellants argued that there being no expert witness on the record, the allegations against the appellants cannot stick. We find force in the argument of the learned counsel for the appellants.
On 12.07.2000 the patient was discharged from the hospital on the insistence of his father. He was readmitted on 13.07.2000 when he came with a complaint of severe pain in the leg. The chances of infection in such type of compound or open fractures being very high, it is very difficult to presume as to what transpired during the night intervening the 12th and 13th of July 2000 when the patient was not in the hospital. The complainant has concealed the factum of his discharge and readmission in the hospital and also that his leg was amputated at the DMC Ludhiana and that too after four days later on 19.07.2000. There is no medical expert opinion to prove any deficiency in service on the part of the appellants. We are of the view that in the absence of any medical experts opinion appellants cannot be held to be deficient in rendering service to the complainant.
There was no seriousness in the matter as the complainant was shifted to DMC Ludhiana on 15.07.2000 while the amputation was done on 19.07.2000. In these circumstances, we are of the view that the treatment given by the appellants to the injured is just and proper and as such the District Forum was not correct in its approach in allowing the complaint and awarding compensation of Rs.5 lac to the complainant.
Hence the present revision petition.
Learned counsel for both parties were present.
Learned counsel for Petitioner stated that the State Commission erred in concluding that Dr.Bassi had clearly indicated that there was no dust or small pebbles found in the wound of Baljinder Singh.
In fact, it has come in evidence in Dr.Bassis statement that he did not remember whether there was dust or small pebbles in the wound of Baljinder Singh. This was understandable since the doctor was examined 5 years after the incident had taken place by the State Commission.
Counsel for Respondents on the other hand, pointed out that Dr.Bassi had after looking at the treatment record had specifically confirmed that no dust or small pebbles were found in the wound of Baljinder Singh. It had also been produced in evidence that he had opined there is always a possibility of contamination and infections with bacteria in open and compound fractures. As per Campbells Operative Orthopaedics, Vol-II, 8th Edition, the reported incidences for wound infection are 0 to 2% to type I fractures, 2% to 7% for type II fractures, 10% to 25% for all type III fractures, 7% for type III-A fractures, 10% to 50% for type III-B fractures, and 25% to 50% (with an amputation rate of 50% or more) for type III-C fractures. Keeping in view these facts the infection in the wound cannot be attributed to any medical negligence on the part of the Respondents/doctors who had first treated the patient. Further the onus to prove medical negligence was on the Petitioner who failed to do so.
The revision petition therefore, needs to be dismissed.
We have heard the learned counsel for both parties and have gone through the evidence on record. The reply of Dr.Bassi in response to a specific query to him by the State Commission is clear and unambiguous that he did not find any dust or pebbles or any foreign element or body in the wound and, therefore, the question of showing these to either the Petitioner or anybody else did not arise. Further from the records, he has also certified that the treatment which was given to the patient by the Respondents/doctors at the Accident Care and Adarsh Bone & Joint Hospital, Phagwara was proper and adequate and there was no negligence in any manner. Dr.Bassi clarified that the infection occurred leading to amputation of the leg because when there is a compound fracture with an open wound severe infection can occur from surroundings like atmosphere and dust.
This is what happened in the instant case and proper treatment for it was given at both the hospitals. The medical literature on the subject which was produced in evidence, further confirms the above medical opinion of Dr.Bassi.
It is also a fact that the Petitioner did not produce any medical evidence or expert to support his case and as observed by the State Commission mere affidavits claiming negligence cannot override the specific medical evidence to the contrary. It is well settled law that medical negligence cannot be presumed and has to be proved by the complainant. In the instant case the complainant has failed to do so. In view of this, we see no reason to interfere with the cogent and well-reasoned order of the State Commission which is upheld in toto.
The revision petition is dismissed with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/