State Consumer Disputes Redressal Commission
Gianpal Anand vs Dr. Mohd. Yamin on 15 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.261 of 2011
Date of Institution: 07.02.2011
Date of Decision : 15.07.2015
Gianpal Anand aged about 65 years s/o Babu Lal Anand r/o 137, New
Deep Nagar, Civil Lines, Ludhiana.
.....Appellant/Complainant
Versus
1. Dr.Mohd Yamin, MS (Ortho), DMC Hospital, Ludhiana.
2. Managing Director, DMC Hospital, Ludhiana through its Secretary.
3. M/s United Insurance Company Limited Savitri Complex No.1, First
Floor, G.T Road, Ludhiana through its Branch Manager.
... Respondents/Opposite Parties.
First Appeal against order dated
05.01.2011 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri. Harcharan Singh Guram, Member Present:-
For the appellant : None
For the respondents no.1 & 2 : None
For the respondent no.3 : Sh. Munish Goel, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the First Appeal No.261 of 2011 2 opposite parties in the complaint), challenging order dated 05.01.2011 of District Consumer Disputes Redressal Forum Ludhiana, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.
2. The complainant Gianpal Anand has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that his left leg was fractured on 10.4.2008, when he suddenly fell from the bed. He was undergoing unbearable pain in his lower left limb and could not put on any weight on it. He was taken to the OPs and admitted in DMC Ludhiana, vide admission no.2008-12064 CR No.2008-34414 under Dr. Mohd Yamin of Orthopedic Department. OP No.2 advised operation and diagnosed closed fracture subtrochantric region femur left side. OP conducted open reduction and internal fixation of fracture with Recon (zimmer) (12x38) (2cervical screws) (2D) on 11.4.2008. OP assured the complainant to perform the operation of his left leg and thereby he would be able to walk within a week therewith. The condition of the complainant rather worsened after operation and his wound started bleeding. OPs and nursing staff did not pay any heed to the complainant, whenever, the complainant inquired from OP No.1 about the cause of bleeding, it was taken in a casual manner only. The condition of the complainant started worsening as the zimmer came out of his operated left leg. The complainant later on came to know that said zimmer has not been properly fixed in the left leg. Instead of giving any conciliation to the complainant, the OP No.1 First Appeal No.261 of 2011 3 showed rough behavior to the complainant. Bed rest was recorded on the OPD card of the complainant in a perfunctory manner by OP No.1. The complainant eventually approached Mittal Nursing Home and Trauma Centre Kithclu Nagar Ludhiana on 27.04.2008, where Dr. Anil Mittal examined the complainant and conducted his x-ray and blood tests and found his HB level as 6 mg. Six blood bottles were transfused to the complainant to save his life thereat. After x- ray examination, it was revealed that zimmer has not been properly fixed by OP No.2 in the broken leg of complainant at the time of operation. The blood kept on oozing on account of negligent act on the part of OP No.2. Dr. Anil Mittal also informed the complainant that the fixed zimmer was not compatible for the said fracture and only plates could cure the said fracture and plates should have been fixed rather than the zimmer therein. The complainant has alleged medical negligence on the part of Ops, as they fixed the zimmer in stead of plates in a cursory manner on the complainant. The complainant alleged in the complaint that OPs failed to adopt the correct line of the treatment by fixing zimmer instead of plates in the left leg of the complainant. Zimmer was not properly stitched and it came out causing bleeding to the complainant. The complainant had to incur Rs.2 lac on his treatment. The complainant has, thus, filed the complaint claiming compensation from the OPs of Rs.5 lac along with interest @ 24% p.a on account of medical negligence exhibited by the OPs in the above treatment of the complainant.
3. Upon notice, OPs No.1 and 2 filed their separate written reply and contested the complaint of the complainant by raising First Appeal No.261 of 2011 4 preliminary objections that the present complaint is not maintainable. The complex question of facts and law are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Forum. The complainant has failed to prove as to what ought to have been done and what has not been done by the OPs in this case. The claim of the complainant is based on exaggeration and lies only. No specific allegation of negligence has been leveled by the complainant against the OPs in the complaint. It was admitted by OPs that complainant was admitted in the Department of Orthopedic through emergency, vide C.R No.2008-34414 on 10.04.2008. Required investigations were got done and he was operated in the form of open reduction and internal fixation with recon nail made by zimmer on 11.4.2008. The patient became restless and was talking incoherently on 12.4.2008. After ruling out medical basis for this condition, psychiatric consultation was taken, which revealed that he was a chronic alcohol abuser and was suffering from alcohol dependence syndrome and was currently on with withdrawal delirium and was managed accordingly. It was denied that no care of the complainant was taken by OPs, while treating him. It was admitted by OPs that on 22.4.08, the complainant visited Orthopedic OPD for removal of sutures at DMC. On enquiry, it was found that complainant fell from the bed at home. The sutures were removed and wound was healed well. The x-ray report showed that the fracture had displaced and the complainant was advised readmission to adjust the fracture, but he refused for it. It was denied that Dr. Mittal intimated the complainant that the fixed First Appeal No.261 of 2011 5 nail (zimmer) was not compatible for the said fracture and only plates could cure the said fracture and plates should have been fixed in place of nail (zimmer). The OPs further averred that, as per Medical Standard Practice published in Journal of the American Academy of Orthopedic Surgeons Vol.II , No.2, March/April 2003, it is laid down as under :-
"Because of the decreased holding power of plate-and-screw fixation in osteoporotic bone fractures, internal fixation can have a high failure rate, ranging from 10% to 25%. Screws placed into cortical bone have better resistance to pullout than do those placed into adjacent trabecular bone. Plates should not be used to bridge unstable regions of bony comminution in osteoporotic patients. Fixation stability is optimized by securing stable bone contact across the fracture site and by placing screws both as close to and as far from the fracture as possible. Intentional shortening can improve stability and load sharing of the fracture construct. Structural bone graft or other types of fillers can be used to fill voids when comminution prevents stable contact. Load sharing fixation devices such as the sliding hip screw, intramedullary nail, antiglide plate, and tension band constructs are better alternatives for osteoporotic metaphyseal locations. Proper planning is essential for improved fracture fixation in this high risk patient group."
The OPs further averred that individuals who abuse alcohol have an increased risk of sustaining fractures partly due to poor balance, associated illness, frequent falls and accidents, but also First Appeal No.261 of 2011 6 due to the adverse effect of alcohol on bone metabolism (112). The OPs challenged other averments of the complainant regarding any medical negligence on their part and hence prayed for dismissal of the complaint of the complainant.
4. OP No.3/United India Insurance Company filed its separate written reply and contested the complaint of the complainant. It was averred in preliminary objections by OP No.3 that complaint is not maintainable and complaint is bad for mis-joinder and non-joinder of the necessary parties. The policy was taken from OP No.3 for commercial purposes and hence complainant is not a consumer. Complex questions of facts and law are involved in this case, which requires adjudication from competent civil court only. On merits, it was denied that any medical negligence of OP no.3 is involved in this case. Rest of the allegations of the complainant were denied vehemently by the OP No.3 and it prayed for dismissal of the present complaint.
5. The complainant tendered in evidence the affidavit of Kaplesh Dubey (Clerk), Garg Medical Chemist & Druggist Ex.CW-1/A, affidavit of complainant Ex.CW-2, affidavit of Dr. Anil Mittal ExCW-3 along with copies of documents Ex.CW-4 to Ex.CW-20. As against it, OPs tendered in evidence affidavit of Rajiv Khanna , Divisional Manager United India Insurance Company Ex.RW-1/A, affidavit of Dr. Mohd.Yamin Professor and Head of Department of Ortho Ex.R- 1/A, affidavit of Prem Kumar Gupta Secretary Managing Society Ex.R-2/A along with copies of documents Ex.R-3 to Ex.R-9. On conclusion of evidence and arguments, the District Forum, Ludhiana, First Appeal No.261 of 2011 7 dismissed the complaint of the complainant by virtue of order dated 05.01.2011. Dissatisfied with the order of the District Forum Ludhiana dated 05.01.2011, the complainant now appellant has preferred this appeal against the same.
6. We have heard learned counsel for respondent no.3 Sh. Munish Goel Advocate, as none appeared for appellant and only written submissions have been placed on record by respondent no.1 and 2 in this appeal. We have been observing that nobody has been putting in appearance after 17.2.2012 on behalf of appellant on most of the dates. The case has been adjourned from time to time, but nobody appeared for the appellant, so in the circumstances of the case, we have no option but to proceed to adjudicate the case on its merits with the aid of evidence on the record only. It is an undisputed fact in this case that complainant sustained fracture on his left leg on 10.4.08 on account of his sudden fall from the bed. He was brought to hospital of OP No.1 and 2 and was admitted there for his treatment of fracture of bone of left leg. The complainant was treated by OP No.1 and 2 and this fact has not been in dispute in this case. We have to examine the evidence on the record to decide the controversy in this case between the parties. The affidavit Kaplesh Dubey (Clerk) Garg Medical Chemist and Druggist is on the record. He proved that two letters dated 27.4.2008, which have been issued by Dr. Anil Mittal for arranging the blood HB 6 grams O+VE Group, vide Ex.CW-14 and Ex.CW-15 for the complainant. He identified the signatures of the doctor on them. He also further stated that Ex.CW- 16 to Ex.CW-19 are the original receipts dated 27.04.2008. Similarly First Appeal No.261 of 2011 8 he proved the signatures on Ex.CW-20 to Ex.CW-22 with regard to medicines slips issued by Garg Medicare Chemist and Druggist Center Arihant Tower Kitchlu Nagar Ludhiana to the complainant. The complainant has to establish the medical negligence on the part of OP No.1 and 2, while discharging the initial onus in this case. Dr. Anil Mittal of Mittal Nursing Home has been examined before District Forum in this case. He tendered his affidavits Ex.CW-1 and Ex.CW-3 on the record. We have examined his affidavit Ex.CW-1 and Ex.CW- 3 on the record. We have also examined his cross-examination, which was conducted before District Forum Ludhiana. He stated in his cross-examination that the fracture suffered by the complainant could be treated either with nail or plate. He stated in his cross- examination that treatment in DMC was done by inserting nail in the bone of complainant. He further stated that he has not commented upon treatment given by DMC to complainant. He further stated that has no knowledge, if patient was alcoholic. He further stated that it is not correct fact that patient after first operation kept on bleeding at the operation site. He further admitted that 5 to 10% failure is there in such like cases, as per Medical Standard Practice. The affidavit Ex.CW-2 of the complainant is also placed on record. The complainant reiterated the averments, as stated in the complaint on oath in his affidavit before the District Forum with regard to proof of the medical negligence on the part of OPs by fixing the zimmer instead of plate at the place of fracture of his left leg. This is only evidence available on the record.
First Appeal No.261 of 2011 9
7. Dr. Mohd.Yamin Professor & Head Department of Ortho /OP No.1 tendered his affidavit Ex.R-1/A on the record before District Forum. He stated that he did his MBBS and MS Ortho from Punjab University Chandigarh and thereafter did his Orthopedic Surgery from Royal College of Surgeon of England. He remained as Senior House Officer in the Department of Orthopaedics from January 1984 to June 1986. He further stated that he has sufficient experience in the field of Orthopaedics from January 1987 to May 1997 in the Department of Orthopaedics in DMC & Hospital Ludhiana and thereafter he was appointed, as a Reader in the same department from January 1997 to November 2003 and then Professor Orthopaedics from December 2003 to till date. He is recognized teacher for under graduate (MBBS) teaching and postgraduate (M.S) students training in medical education. He further stated that more than one thousand Arthoplastics of knee, hip and shoulder have ben conducted by him and he has been working as Professor and Head of Orthopaedics at DMC Ludhiana. He further stated that complainant concealed the fact of his being a chronic alcohol abuser. The non-disclosure of factum of chronic alcohol abuser is a material fact, which affects the treatment and outcome of the treatment of the complainant. He further stated that complainant was admitted in the Department of Orthopaedics through emergency, vide CR No. 2008-34414 on 10.04.2008 and the required investigation was done therefor. Thereafter, he was operated in the form of open reduction and internal fixation with recon nail made by zimmer on 11.4.2008. On 12.4.2008, the patient/complainant First Appeal No.261 of 2011 10 became restless and was talking and behaving incoherently. After ruling out medical basis for this condition, psychiatric consultation was taken for the complainant, which revealed that he was chronic alcohol abuser and was suffering from alcohol dependence syndrome and currently was on withdrawal delirium and was managed accordingly. He denied that the said nail (zimmer) has not been properly fixed by him at the time of conducting the operation. He further stated that complainant visited OPs on 22.4.2008 for removal of sutures. The sutures were removed and the wound was healed well by that time. The check x-ray showed that fracture had displaced and complainant was advised for re-admission to adjust the fracture, but he refused. Any medical negligence was denied vehemently and emphatically by this witness on his part in this case.
8. From the above-referred evidence on the record, we are called upon to adjudicate this point as to whether fixing of zimmer (nail) instead of plate on the part of fractured left leg is medical negligence on the part of OPs in this case or not. Medical literature has been cited before us contained in Ex.R-3. The standard medical literature of internal fracture fixation in patients with Osteoporosis by Charles N. Cornell, MD Published in Journal of the American Academy of Orthopedic Surgeons Vol. II, No.2, March/April 2003 is reproduced as under :-
"Because of the decreased holding power of plate-and-screw fixation in osteoporotic bone fractures, internal fixation can have a high failure rate, ranging from 10% to 25%. Screws placed into cortical bone have better resistance to pullout than First Appeal No.261 of 2011 11 do those placed into adjacent trabecular bone. Plates should not be used to bridge unstable regions of bony comminution in osteoporotic patients. Fixation stability is optimized by securing stable bone contact across the fracture site and by placing screws both as close to and as far from the fracture as possible. Intentional shortening can improve stability and load sharing of the fracture construct. Structural bone graft or other types of fillers can be used to fill voids when comminution prevents stable contact. Load sharing fixation devices such as the sliding hip screw, intramedullary nail, antiglide plate, and tension band constructs are better alternatives for osteoporotic metaphyseal locations. Proper planning is essential for improved fracture fixation in this high risk patient group."
In Ex.R-4 the Medical Literature on Fractures in Adults Volume-1, it is stated that individuals who abuse alcohol have an increased risk of sustaining fractures partly due to poor balance, associated illness, frequent falls and accidents, but also due to the adverse effect of alcohol on bone metabolism (112). Alcohol exerts a direct toxic effect on bone cells. It affects osteoblast proliferation in vitro and reduces matrix protein synthesis in vivo (113). Similarly, Ex.R-5 is Standard Medical Literature under title C. Michael Robinson Antti Alho Charles M. Court-Brown. It records that intramedullary nailing of sub-trochanteric femoral fractures is associated with better results than plate fixation. Parker et al, (1997) analyzed the world literature relating to sub-trochanteric femoral fractures up to 1995. They showed that the overall results for intramedullary nailing were First Appeal No.261 of 2011 12 better than those gained using plates. In Medical Literature, vide Ex.R-6 by Rockwood and Green's on Fractures in Adults , under the title Failure of Fixation, it is recorded that Fixation Failure is common in osteporotic fractures, and the poor bone quality may lead to early loosening of the implants (31) backing out of the distal locked screw. Ex.R-7 is the admission record of the complainant, which has been duly examined by us.
9. From evaluation of the above-referred Standard Medical Practice and Literature on the record, we have come to this conclusion that OP No.1 is a professional competent person. He has requisite qualification and experience in conducting the bone surgeries. Nailing is also standard practice for healing fractures, as per Medical Standard Literature on the record. The patient was discharged in satisfactory condition by fixing of zimmer by OP no.1 and the latter is not found negligent by us. It is normal worldwide practice to fixing nailing to join the bones. We refer to law laid down by Apex Court in Kusum Sharma and others vs. Batra Hospital & Medical Research Centre and others, reported in 2010 CTJ 241 SC, that as long as doctors have performed their duties and exercised an ordinary degree of professional skill and competent, they cannot be held guilty of medical negligence. Reference may be made to another law laid down in PGI vs... Jaspal Singh and others, reported in 2009 CTJ Page 701 SC to this effect.
10. There is simple affidavit of the complainant that fixing of zimmer instead of plates is negligent act of OP, which has not found in the medical literature, as placed on record. Even Dr. Anil Mittal First Appeal No.261 of 2011 13 has not categorized any medical negligence on the part of OPs in this case in fixing the zimmer instead of plates. As per version of the Dr.Anil Mittal, there could be 5 to 10% failure in such like cases, as recorded in Medical Standard Books, it can happen in any case and nobody knew about it. Consequently, we find that even simple error on the part of doctor or an accident is not a proof of negligence on the part of professionals, as held in Jacob Mathew vs State of Punjab and another, reported in 2005 CTJ 1085 (SC).
11. As a result of our above discussion, we have not come across any illegality or material infirmity in the order of the District Forum Ludhiana calling for any interference therein. The order of the District Forum Ludhiana dated 05.01.2011 is, thus, affirmed in this appeal. Finding no merits in the appeal, the same is hereby dismissed.
12. Arguments in this appeal were heard on 10.07.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(HARCHARAN SINGH GURAM)
MEMBER
July 15 2015.
(ravi)
First Appeal No.261 of 2011 14