State Consumer Disputes Redressal Commission
Sandeep Kaur vs Kgm Hospital on 1 August, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No.4 of 2006
Date of institution: 17.02.2006
Date of decision : 01.08.2012
1. Sandeep Kaur daughter of S.Kultar Singh;
2. S.Kultar Singh s/o Late Sh.Diwan Singh;
3. Ravinder Jit Kaur w/o S.Kultar Singh;
All residents of 572, Gurgobind Singh Avenue, Near Trinity College,
Chogitti, Jalandhar.
.....Complainants
Versus
1. K.G.M. Hospital through Sole Proprietor Dr.Kulwant Singh, 25,
Gurjaipal Nagar, Cool Road, Jalandhar.
2. Dr.Kulwant Singh, 25, Gurjaipal Nagar, Cool Road, Jalandhar.
.....Respondents
Consumer Complaint under the Consumer
Protection Act, 1986.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Mr.Jasbir Singh Gill, Member Mr.Vinod Kumar Gupta, Member Argued by:-
For the complainants : Sh.Munish Goel, Advocate
For the respondents : Sh.Sudeep Mahajan, Advocate
& Dr.Kulwant Singh in person
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This is a complaint under Section 17 (wrongly mentioned as Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) filed by Sandeep Kaur and her parents regarding the medical negligence of the OPs claiming compensation of Rs.2.94 lacs on account of medical expenses, Rs.20 lacs on account of loss of job including future as Consumer Complaint No.4 of 2006 2 well as present expenses, Rs.20 lacs on account of harassment and mental agony and Rs.20,000/- as litigation expenses.
2. The facts leading to the present complaint are that on 18.8.2003 complainant Sandeep Kaur, a young girl aged about 20 years was going on her Kinetic scooter at Pathankot when she was hit from behind by a bus. She suffered injuries. A telephonic call was received by her mother Ravinder Jit Kaur complainant No.3 who reached the spot and shifted her to Civil Hospital, Pathankot at 11.20 a.m. Her X-ray of the pelvic and left heel was performed by the Civil Hospital authorities in a clumsly manner and it was diagnosed that superior and inferior ramus on the right side were fractured. Since the equipment of Civil Hospital was not proper, they, therefore, could not detect the fracture on the left side. There were injuries on other parts of her body and the doctors at the Civil Hospital, Pathankot felt that they would not be able to treat the injured properly and, therefore, referred her to Government Medical College and Hospital, Amritsar. The contention of the complainants is that Ravinder Jit Kaur complainant No.3 was alone at Pathankot; they are local residents of Jalandhar; the condition of Sandeep Kaur was serious; therefore, instead of taking her to Government Medical College and Hospital, Amritsar, she took her to Jalandhar and got her admitted in KGM Hospital OP No.1. The case of the complainants further is that although Sandeep Kaur was crying with pain yet the OPs did not bother to properly examine the position of bones and the affected area and started treatment by applying skin traction on the right leg alone. The OPs did not conduct fresh X-ray to ascertain the exact condition of the fractured Pelvis and based the entire treatment on the X-ray clumsly taken by the Civil Hospital, Pathankot which had not taken note of the injury on the left side of the pelvic. It was due to that reason that the OPs applied skin traction only Consumer Complaint No.4 of 2006 3 on the right leg. However, when the pain did not subside, even inspite of heavy dose of pain killer and tranquilizers and the condition of Sandeep Kaur was deteriorating, the OPs got MRI of LS spine and pelvis done on 5.9.2003 after 19 days of hospitalisation. The OPs did not inform the complainants about the position of the patient or those of injuries or the contents of the report of MRI and even thereafter did not change the treatment to start skin traction on both the legs. The report of MRI dated 5.9.2003 was kept secret and the OPs continued giving assurances of early recovery just to extract money from the complainants. Sandeep Kaur was discharged by the OPs on 7.10.2003 after keeping her in their hospital for 50 days. Even at the time of discharge, she complained of severe back pain and stiffness but the OPs concealed true condition of Sandeep Kaur by saying that the fracture of pelvis has reunited well and she would soon start walking. He prescribed some medicines, pain killers, powerjesic gels as further treatment after the discharge. Sandeep Kaur came to the OPs for follow up visits on 18.10.2003 and 20.11.2003 but even on those dates, the OPs did not disclose the true condition and tried to conceal the same by saying that the severe low back pain was due to dead muscles. It was never told by him that the fracture of left sacral bone had not united nor was she told about upward dis-locatioin of left side of pelvis due to the skin traction being applied on right leg alone. He did not get X-ray, CT scan or MRI of Pelvis to assess the progress of the treatment. Four months thereafter, when Sandeep Kaur was still unable to walk without support, she came to the OPs on 25.12.2003 for follow up and again muscles strengthening exercises were prescribed to restore flexibility and joint motions. Kultar Singh complainant, therefore, took her to the Physiotherapy Centre, Pathankot where she was examined by the Physiotherapist who Consumer Complaint No.4 of 2006 4 pointed out shortening of her leg by 1.5 inches. He also advised that before staring exercises, it is necessary to review/assess the recovery of fracture of pelvis. The complainants, therefore, came to the OPs and told about the discussion with the Physiotherapist, upon which, Dr.Kulwant Singh OP became furious as to why they were relying upon a Physiotherapist and not on him. However, after much persuasion, the X-ray of pelvis both hips joint and left heel was prescribed. The OP insisted to get it done in his own hospital but reluctantly agreed for X-ray from outside. On 9.2.2004, X-ray of the pelvis and left heel were got done from M/s Bhangu Scan and X-ray Clinic, Jalandhar. The contention of the complainant further is that it was revealed through the said reports that the condition of Pelvis after treatment from the OPs was much worse as compared to the time of accident. The OPs, however, never told the complainants about the extremely deteriorating condition of pelvis and the complainants being laymen, could not see the ill design of the OPs in hiding the real picture.
3. When the condition of complainant No.1 Sandeep Kaur did not improve even inspite of assurances given by the OPs, her relatives suggested to get expert opinion. She was, therefore, taken to various medical institutions at Ludhiana, Amritsar, Chandigarh, Delhi, Pathankot, Haridwar, Dharamshala etc. It was, for the first time, on 17.2.2004 that the complainants were told about wrong treatment given to her by the OPs when they consulted Dayanand Medical College and Hospital, Ludhiana. The complainant also consulted Dr.J.L.Bassi, Head of Orthopaedics and, thereafter, Dr. Hardas Singh, Ex-Professor and Head of Department of Orthopaedics, Government Medical College and Hospital, Amritsar on 25.2.2004. The CT scan was taken on that date and Dr. Hardas Singh also opined that wrong treatment was given to the complainant. Thereafter, a Consumer Complaint No.4 of 2006 5 number of institutions/Doctors were consulted by the complainants and all of them were of the view that the OP was negligent but they expressed their unwillingness to give such an opinion in writing. They also opined that due to lapse of time and wrong calcification because of skin traction given on one side alone, it was then not possible to correct the damage by surgical procedure. Sandip Kaur was also taken to the PGI, Chandigarh but the doctors were unwilling to perform operation at that belated stage. When these opinions were told to the OP, they advised MRI which was got done on 19.3.2004 and after going through the report, the OP himself realized the negligent treatment given by him. However, he advised exercise only and told them that he could not do anything further in the matter.
4. The case of the complainant is that apart from Orthopaedic problem, Sandeep Kaur developed problem in passing the urine and was, therefore, got examined from Urology Department of the PGI on 31.7.2004. Their contention is that due to wrong diagnosis, wrong treatment, negligence and by passing of the laid down procedure in such kind of injuries, an irreversible damage has been caused to Sandeep Kaur resulting in shortening of her left leg by 1½ inch rendering her permanently handicapped for whole of her life. She is unable to walk without support and cannot perform the household chores without a permanent attendant. She developed various kinds of gynaecological problems and the doctors told that she cannot enjoy her normal matrimonial life, due to which, her parents have decided not to marry her. It was contended that Sandeep Kaur has developed suicidal tendencies and has undergone acute depression.
5. The case of the complainant further is that Sandeep Kaur was taken to various Super Speciality Institutes all over India in the hope that she may be cured but the doctors were of the view that there was no solution at Consumer Complaint No.4 of 2006 6 this belated stage for the malunion of pubic ramus and fractured sacrum and non-united fracture involving S1/S2/S3 segments of left side of sacrum. The doctors, however, were unwilling to give any kind of written opinion being in the same profession as the OPs. The father of Sandeep Kaur also consulted Dr.Malcom Smith of Massachusetts General Hospital, Boston (USA) who described it a case of pelvic malunion, possibly a non-union.
6. Complainants No.2 and 3 demanded from the OPs the complete medical record of Sandeep Kaur pertaining to the period of hospitalisation to plan their visit to Boston. The OPs, however, refused to handover the record regarding which representations and requests were made to him and to higher authorities also and a legal notice was also served but to no effect. The parents also filed complaints to different authorities to persuade the OPs to supply copies of the record to them and ultimately, filed a consumer complaint before the learned District Forum but to no effect. However, some of the medical record was handed over to Kultar Singh complainant through agency of Deputy Commissioner, Jalandhar but it disclosed gross anomalies and fabrication/forgery. The signatures of Sandeep Kaur and her Mamaji were forged on the consent letter and several other documents were also forged by the OPs. The father of the complainant moved a complaint to the Deputy Commissioner with a copy to the SSP etc. and criminal action was initiated against him.
7. The contention of the complainants is that the OP was negligent in giving treatment firstly in by passing laid down procedure in not conducting the X-ray before starting the treatment and thereby giving skin traction on the right leg only., secondly by not disclosing the true condition of Sandeep Kaur despite having knowledge of the same was also medical negligence. The OPs were also allegedly deficient in not monitoring the Consumer Complaint No.4 of 2006 7 progress of treatment by taking X-rays periodically and not handing over the complete medical record and also not referring the complainant to Super Speciality Institute. It was also alleged that the condition of Sandeep Kaur has deteriorated to this extent that her left leg has shortened by 1.5 inches, there is upward dislocation of left side of pelvis and non-union of left sacral bone due to which she has become permanent disabled to the extent of 45% and they have to keep a permanent attendant for her and were spending Rs.5000/- per month. They, therefore, prayed for a compensation of Rs.42.94 lac and litigation costs of Rs.20,000/-.
8. The complaint is opposed by the OPs alleging that the compensation claimed is inflated intentionally to bring the matter within the purview of this Commission whereas it should have been filed before the learned District Forum, Jalandhar. Their contention is that Sandeep Kaur was treated by them according to standard line of treatment recommended in such kind of injuries suffered by the complainant and there was no medical negligence on their part. If at all, Sandeep Kaur was suffering, that was not the result of treatment rendered to her in the hospital but on account of her own negligence and lack of care in the post operative period after she was discharged from the hospital.
9. On merits, it was admitted that Sandeep Kaur was admitted in their hospital on 18.8.2003 with multiple injuries. She was having X-ray report and was referred from Civil Hospital, Pathankot. She was examined by the OPs under Image Intensifier which is a computerised system of X- ray. Photographs of the pelvic region were taken through the said equipment and the treatment was started. Their contention is that the traction was applied on both the legs and it was wrong that the OPs did not consider the pelvic injury on the left side of the leg or applied traction only on one side. It Consumer Complaint No.4 of 2006 8 was also denied if the OPs did not take X-ray, CT Scan or MRI but their contention is that the scanning was being done under the Image Intensifier as and when required and the progress of treatment was reviewed with the help of the said photographs. It was denied if shortening of leg occurred due to wrong treatment given by the OPs. According to them, even if there had been skin traction only on right leg, it could not have caused damage by upward displacement on a part of pelvic bone which was only due to the reason that Sandeep Kaur did not take rest as advised and started putting weight on her legs even before she was completely cured. It was said to be her own fault for which the OPs cannot be held liable.
10. It was denied if any of the Doctors or Institutions consulted by the complainants ever expressed the opinion that the OPs had given wrong treatment to the complainant or if the damage was irreversible. The OPs, therefore, contended that there is no merit in this complaint and the same be dismissed.
11. Both the parties were given opportunity to produce evidence in support of their contentions.
12. We have heard the arguments of the learned counsel for the parties and have perused the record including the written arguments.
13. The learned counsel for the complainants has argued that the complainants have proved that when complainant Sandeep Kaur met with an accident before she came to the OP hospital for treatment, she was not suffering from shortening of leg. It is also not disputed that at present, her left leg is short by 1.5 inches and also there is non union of the fracture and there is upward displacement of left pelvis side in the region of S1 joint. The post trauma fracture both pubic bones and left sacral bone leading to upward displacement of left side of pelvis is clear from the report Ex.C6 issued by Consumer Complaint No.4 of 2006 9 Bhangu Scan & X-ray Clinics on 9.2.2004. The MRI report Ex.C6/2 dated 25.2.2004 also showed old non-united fracture left ALA of sacrum with united fracture bilateral obturator rings with cranial migration of left hemiplevis. According to the learned counsel, these facts show that even after the treatment of Sandeep Kaur, there is non-union of bone and her condition has deteriorated as compared to that which was when she was admitted in the OP Hospital. In this respect, the learned counsel for the complainant has also referred to Ex.C2 which is a photo copy of the skiagram dated 18.8.2003, Ex.C5 copy of skiagram dated 9.2.2004 and Ex.C10 copy of skiagram dated 31.7.2004 a comparison of which shows not only the non union of sacral piece of left side in relation to S1, S2 and S3 but also upward displacement of the left side of pelvis.
14. The contention of the complainant is that it was due to the reason that the OP was negligent in so far as the OPs did not take fresh X- ray before starting the treatment which was started on the basis of X-ray conducted by the doctors at Civil Hospital, Pathankot who did not notice the injury to the left pelvis and sacral. The next deficiency in service is alleged to be that the OPs did not conduct periodic X-ray, CT Scan and MRI to monitor the progress of treatment and/or to change the treatment, if the same was not obtaining the desired results. The next deficiency in service alleged by the complainant is that the skin traction was applied only on the right leg presuming (on the basis of the X-ray report of Civil Hospital, Pathankot) that the injury was only on the right side pelvis and due to this skin traction, left sacral bone was pulled upward spoiling the entire alignment of the bones in pelvis and sacral area which led to permanent disability of Sandeep Kaur.
15. The next deficiency in service on the part of the OP is that they did not inform the complainants about these developments and continued Consumer Complaint No.4 of 2006 10 giving them false hope that the injuries were being healed properly. When the OP found that there was no proper healing even then he did not refer the injured complainant to some Super Speciality Hospital for treatment, may be due to the reason that the medical negligence on their part would come to notice or it was sheer greed for money being paid as fees by the complainants. Yet another deficiency in service on their part is when they manipulated the record to show that the complainant had consented for treatment or that the copies of record had been given to them.
16. The learned counsel for the OP has argued that there is sufficient evidence to show that no medical negligence is proved on the part of the OP and the complainant was properly treated in accordance with the established medical practice and if anything went wrong, the OP cannot be accused of medical negligence. So far as the legal position is concerned, there is no dispute about it. A doctor is not an insurer who can be held liable in case anything goes wrong. It is true that every disease cannot be cured perfectly and permanently. However, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. However, medical practitioner can be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field as held by the Hon'ble Supreme Court in case "Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others, 2010 AIR (SC) 1050". The complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do as held by the Hon'ble Supreme Court in case "Jacob Mathew v. State of Punjab & Anr." AIR 2005 Supreme Court 3180. In the light of this law Consumer Complaint No.4 of 2006 11 cited by the learned counsel for the OP, let us examine whether the OPs are guilty of medical negligence or not?
17. The contention of the learned counsel for the OP is that in addition to consulting the X-ray report and the record Ex.C1 of the Civil Hospital, Pathankot, the OP had scanned the injury under an image Intensifier and, thereafter, started the treatment. Admittedly, they did not get any fresh X-ray taken before starting the treatment. The contention of the OP is that they used to scan the injury under the Image Intensifier and, therefore, there was no need for X-ray. It, however, does not appear to be correct. No evidence was produced by the OPs if there was any such Image Intensifier with them. The OP has produced the record of treatment but in the said record, there is no mention if and when the injuries were seen under the Image Intensifier. No copy of the impression given by the Image Intensifier was placed on treatment file nor any copy was produced on the record. No mention was made in the treatment chart as to what they observed after scanning the injuries under the Image Intensifier. There is no document/report or mention in the treatment record if the OP had seen the injuries on the left side pelvis or sacral region of the complainant. We are, therefore, of the opinion that the contention of the OP that the injuries were examined under the Image Intensifier is a false story, subsequently, coined by the OP to cover up their negligence in treating the complainant. If the complainant had been examined under the Image Intensifier, a mention thereof would have been made in the treatment record as to on which date and by whom, such an examination was conducted. It also would have found a mention as to what was observed and what was the condition of the injury observed by them. We are, therefore, unable to believe this story coined by the OP.
Consumer Complaint No.4 of 2006 12
18. The contention of the OP is that he did not call any Radiologist to study the images allegedly taken by him under the Image Intensifier. It may be mentioned that in order to study the bone fractures, the Radiologist is the appropriate person and in its absence, we cannot say that the location and extent of the fractures has been correctly appreciated by a person who has not studied the radiography. The OP was, therefore, negligent in not getting the bone fractures identified from the Radiographer and not obtaining any report from the Radiographer, in this respect.
19. The contention of the OP is that the report of the Image Intensifier and other reports used to be stapled by him with the treatment record. According to him, the OP could not produce the reports of Image Intensifier because the same was handed over to the complainants when demanded by them. In this respect, the OP produced a writing vide which the original X-ray films and reports, ultrasound scan reports and films, CT scan report and films and MRI scan & report were handed over to Sandeep Kaur and her maternal uncle Surinder Singh. The complainants have denied if any such record was given to them by the OP or the said receipt bears their signatures. These signatures were got examined from hand writing expert who reported vide Annexure C64 that it was a forgery. The matter was also reported to the police and a criminal case was registered against the OP and Challan Ex.C65 was submitted before the learned Judicial Magistrate. Efforts were made by the OP and the Police to get the case cancelled but the same did not succeed. The learned Magistrate as per the order Ex.CX3 was of the view that prima facie, a case under Section 336, 465, 468, 471 IPC was made out against the OP and a charge was, accordingly, framed against him. This contention of the OP that the documents were handed over to the complainant vide this receipt is, therefore, falsified. Consumer Complaint No.4 of 2006 13
20. Sandeep Kaur complainant rather filed a consumer complaint against the OP, copy of which is Ex.C15 alleging that they demanded the copies of the record from the OP but he has refused to give the same. It is true that the said complaint was dismissed by the learned District Forum vide order OP4 (also Ex.PW/7) against which the complainant filed an appeal. Vide a separate order, we are allowing the appeal and the complainant holding that the OP was deficient and did not supply the copies of record to the complainant.
21. The learned counsel for the appellant has also referred to the letter Ex.C12, vide which, Kultar Singh complainant wrote to Dr. Malcom Smith, M.D. Partners Associate Chief of Orthopaedic Trauma Services, Massachusetts General Hospital, Boston (USA) seeking opinion about the treatment of Sandeep Kaur. The learned counsel referred to the enclosures sent by Kultar Singh with the said letter and, therefore, contended that these had been handed over to him by the OPs. When we peruse the said letter, we find that none of the documents relates to the treatment given by the OP or the tests allegedly carried out by him. The first document is the brief history of the accident case, it was evidently prepared by Kultar Singh himself and not by the OP. The second is the compact disc, it is not the case of the OP if any such disc was prepared by him and, therefore, this document also was not provided by the OP nor is it mentioned in the receipt fabricated by him. The third document is the photocopies of initial X-ray (2 numbers). These, X-rays were conducted at Civil Hospital, Pathankot and not by the OP, these were with the complainants and had been produced before the OP who had started the treatment on its basis. 4th document is the copy of nerve conduction report done on 19.4.2004. This document also does not find mention in the list of documents prepared by the OP having been handed Consumer Complaint No.4 of 2006 14 over to the complainants. Sandeep Kaur complainant had already been discharged from the OP hospital on 7.10.2003 and the documents mentioned at Serial No.4, 5 and 6 were not prepared during the treatment of Sandeep Kaur in the OP Hospital. These documents, therefore, cannot be said to have come in existence during her treatment given by the OP and, therefore, cannot be said to have been given by the OP. It, therefore, shows that even as per this receipt the OPs have not given any document of treatment to the complainant and his stand that the copies of images from the Image Intensifier were given to the complainant is a false story. There is no mention in the said list if any such copies of images or the reports based thereon were handed over to the complainant. It leads us to the only conclusion that the complainant had not been viewing the injuries under the Image Intensifier as claimed by him and he was proceeding with the treatment without any feed back which is contrary to the standard medical procedure. The deficiency in service on the part of the OP, in this respect, is, therefore, proved beyond doubt.
22. The learned counsel for the complainant referred to Ex.C1 which is the report of the X-ray issued by the Civil Hospital, Pathankot. At Serial No.2, is mentioned, large lacerated wound on the left heel encircling around it except at the dorsal surface, it was crushed. The injury at Serial No.4 is an abrasion on the right lumber region. After the x-ray was taken, it was the injury on the right hip joint which alone was detected by them and not the fracture of the left pelvis. The treatment given by the hospital authorities further is that traction was advised on the right leg only. It was this record which was shown to the OPs. Admittedly, the OPs did not take any fresh X-ray to examine if there was any injury on the left side pelvic also. The contention of the complainant is that basing his treatment on the Consumer Complaint No.4 of 2006 15 clumsy X-ray report conducted by the Civil Hospital, Pathankot, the OP applied skin traction only on the right leg. The OP has denied this fact and contended that the traction was applied on both the legs. He has deposed so in his own affidavit and the statement before the Commission and also produced the affidavit Ex.RW/2 of Dr.Sanjay Mittal who claims to have visited the OP hospital and deposed that the skin traction was given on both lower limbs. When we peruse the treatment record, there is no mention if the traction was given on both the legs. The reason given by the OPs is that if the traction was to be given on both the legs, then, no reference of right or left leg is to be made whereas these legs are to be specifically mentioned if the traction is to be given only on one leg. When we peruse the affidavit of Dr. Sanjay Mittal who claimed to have examined the injured on 24.8.2003, he mentioned in his affidavit Ex.RW/2 that it was bilateral traction. Dr.R.P.S.Boparai in his opinion Ex.R12 and his statement before this Commission also referred to bilateral traction. It means if traction is to be given on both the legs, then it has to be mentioned as bilateral traction but even that much was not mentioned by the OP in the treatment record. There is overwhelming evidence, in this respect, that the traction was given only on the right leg. Besides the affidavits of complainant Sandeep Kaur and Kultar Singh, we may refer to the affidavits Ex.A38 of Joginder Pal Singh, Ex.A39 of Surinder Singh, Ex.A40 of Gurdvinder Singh, Ex.A41 of Gurmit Singh, Ex.A42 of Mohinder Kaur, Ex.A43 of Surjit Kaur, Ex.A44 of Kuljeet Kaur, Ex.A45 of Davinder Kaur, Ex.A46 of Amarjit Kaur, Ex.A47 of Jagjit Kaur, Ex.A48 of Manjit Kaur, Ex.A49 of Kirpal Singh, Ex.A50 of Kulwinder Pal Singh, Ex.A51 of Harminder Pal Singh, Ex.A52 of Rachpal Singh, Ex.A53 of Inderjit Singh, Ex.A54 of Rajinder Kumar Sharma, Ex.A55 of Kamalinder Singh Walia, Ex.A56 of Neena Walia, Ex.A56A of Consumer Complaint No.4 of 2006 16 Jaswant Singh and Ex.A56B of Harbhajan Singh who had been visiting the injured complainant in the OP hospital and noticed that the traction was given only on her right leg. The record produced by the OP does not show if the traction was given on both the legs i.e. if it was bilateral traction. It all shows that the OP is telling a lie in this respect and the traction was given only on the right leg.
23. Further, a perusal of Ex.C1 shows that the doctors of Civil Hospital, Pathankot ordered traction of the right leg only. Had they noticed the fracture of left pubic ramus and sacral bone, there is no reason why the traction on the left leg also would not have been advised. In any case, one thing is clear that no traction on the left leg was advised by the doctors at Civil Hospital, Pathankot which shows that they did not notice the said injuries on the left pubic ramus and left sacral bone. This record along with skiagram Ex.C2 was handed over to. Dr. Kulwant Singh OP who admitted this fact in his cross-examination and further admitted that he started the treatment of Sandeep Kaur on its basis and on the basis of the scanning done by him through Image Intensifier. The record about Image Intensifier or the scanning done under it is not in sight. It is, therefore, clear that the OP started his treatment on the basis of Ex.C1 only and skin traction of right leg alone was applied by him. Otherwise also, the skin traction on the left side could not have been given because there was extensive Hematoma left buttock, left thigh, extensive abraded contusion all over the area and large lacerated wound on the left heel which was crushed as mentioned in the cross-examination of Dr.Kulwant Singh OP conducted on 18.4.2007. Inspite of exercising an ordinary degree of professional skill and competence in getting fresh x-ray and report of the Radiologist about the injury and thereafter, to start the treatment, the OP started the treatment on the basis of Consumer Complaint No.4 of 2006 17 clumsy report received from the Civil Hospital, Pathankot and, therefore, the conduct of the OP fell below the standards of a reasonably competent medical practitioner.
24. The circumstantial evidence also proves this fact. If the traction was given on both the legs, the OP would have mentioned the same in his record. If not two legs, at least bilateral traction would have been mentioned but there is no such fact supporting him. Further, if the traction was given on both the legs, then, the question of the left pelvic bone protruding upwards would not have been there. The explanation given by the OP as to why the left pelvic bone protruded upward instead of being in alignment with the right pelvic bone is not acceptable. There is also no plausible explanation as to why there is non-union of the bone even though the injured had remained in the hospital of the OP for more than 7 weeks. There is no evidence produced by the OP to suggest if there could be no better treatment in other hospital than the one given by him or we say it otherwise that the result of treatment in every hospital would have been the same as is now. The deficiency in service on the part of the OP, in this respect, is, therefore, proved beyond doubt.
25. The learned counsel for the OP has also referred to the affidavit Ex.RW/2 of Dr.Sanjay Mittal who claims to have examined Sandeep Kaur on 24.8.2003 at 1.30 p.m.. It was he who reported that she was on bilateral traction of legs. The contention of the learned counsel for the complainant is that in fact he has given a false affidavit because of his close relationship with the OP, both being in the same profession. It is contended that the entry dated 24.8.2003 made in the treatment record is an afterthought and forgery. The receipt for Rs.300/- as visiting charges by Nephrologist was issued on 22.8.2003. There is no receipt to suggest if any such charges for the visit of Consumer Complaint No.4 of 2006 18 Dr.Sanjay Mittal were levied on the complainant for 24.8.2003. However, while forging the record in this respect, the OPs forgot that they have prepared two different daily charts dated 24.8.2003 giving different treatment which are at pages 86 and 87 of the file giving different pulse rate and different BP at 9.00 a.m. on that day. It is, therefore, a clear manipulation of record. It shows that Dr.Sanjay Mittal never visited the complainant and has been falsely introduced as a witness.
26. The contention of the OP is that the skin traction was applied on both legs. His contention is that the skin traction was on when Sandeep Kaur was discharged by him from his hospital. The OP did not mention in the discharge certificate ( at page 45 of the documents attached with the written reply) as to whether there was skin traction on and if so, when the same would be removed. She has visited the OP for follow up again but no mention is made whether she was having skin traction or not. There is no mention in the record when and by whom the skin traction was removed. If the skin traction was removed after discharge, the OP did not raise any objection against it. The learned counsel for the complainant has argued that in fact, skin traction had been removed before she was discharged from the hospital and the contention of the OP that it was still on is wrong. As regards the backpain, she was told that it is due to dead muscles which would be alright by exercises in a few days. For that purpose, pain killers and powerjesic gel was prescribed. The OP was, therefore, negligent in this respect also whether the traction was removed at the time of discharge or she was discharged from the hospital when the traction was still there. Further not mentioning in the discharge certificate as to when the traction was to be removed or when the same was actually removed is also deficiency in service on their part.
Consumer Complaint No.4 of 2006 19
27. The first X-ray regarding the injuries is Ex.C2 dated 18.8.2003. Thereafter, is the report Ex.C3 dated 9.9.2003, Ex.C4 dated 5.9.2003 and the skiagram Ex.C5 and the report dated 9.2.2004 is Ex.C6. When we peruse the result of treatment from 18.8.2003 to 9.2.2004, it is clear from these reports and the skiagrams that the condition of the injured was going from bad to worse. There was no improvement in the union of bones nor any relief from pain she had been suffering pain throughout the period from 18.8.2003 to 9.2.2004. A period of 25 weeks had lapsed, even as per Dr.H.S.Sohal (Ex.R6 & RW/6), the injured needed only 12 weeks rest in bed and the fractures might have united between 8 to 12 weeks of its own. It shows that something was wrong in the treatment, due to which, even after 7 weeks as indoor patient in the hospital of the OP and 18 weeks thereafter, there was no union or healing of the bones. In fact, the treatment started on wrong lines and 7 weeks indoor stay in the OP hospital made the condition of Sandeep Kaur worse to the extent that not only 18 weeks thereafter, it could not have healed properly throughout her life.
28. The contention of the OP is that after her discharge from their hospital, the injured had been putting weight on her legs, due to which, there was upward displacement of the left pelvis and non-union of the bones. As against it, the learned counsel for the complainant argued that the injured was unable to move; she was suffering from pain and in the follow up on 18.10.2003 and 20.11.2003, the OP was prescribing pain killers and powerjesic gels showing that the complainant was suffering from pain and was unable to walk. The OP has now fabricated this story that she had started walking, due to which, the condition deteriorated. Till 20.11.2003, when the injured visited the OP, more than 13 weeks had already passed and in view of the evidence of Dr.H.S.Sohal produced by the OP as Ex.R6, the Consumer Complaint No.4 of 2006 20 bone would have automatically united but it did not. It was, therefore, only due to the wrong treatment that the bone did not unite and there is upward displacement of the left pelvic bone and not due to the complainant putting any load on her legs.
29. It is also argued by the learned counsel for the OP that the complainant Sandeep Kaur admitted in her cross-examination that in March, 2004, she appeared in her paper of 4th Semester and for this purpose, she was taken to the Examination Centre by her father in the car which used to be parked at a little distance from the Examination hall where necessary arrangement of taking the exam was made for her. She admitted that she used to walk to the Examination Hall with the help of walker. She denied if it was because of walking that she suffered displacement. She also admitted that thereafter, she gave driving test for obtaining a driving licence in August, 2004 and denied if the body weight was put on the pelvic while giving the driving test for issuance of driving licence. A perusal of the stand taken by the OP itself falsifies the truth therein. The skiagram Ex.C5 and the X-ray report Ex.C6 taken on 9.2.2004 itself show the upward displacement of left pelvic side in the region of S1 joint and non-union of bones. Steps taken by her, subsequently, could not have been the reason for the condition she was facing. In this manner, when even before February, 2004, the condition of the complainant had deteriorated, the subsequent events in March or August, 2004 were of no consequence for the said displacement and non-union. Moreover, if according to Dr.H.S.Sohal, the bone would have united within 8 to 12 weeks, the taking of tests in March, 2004, 28 weeks later or giving of driving test 52 weeks later would not have any adverse affect on her treatment. The OP is now finding faults with the complainant instead of realising his own negligence. Otherwise also, Consumer Complaint No.4 of 2006 21 Sandeep Kaur came to the OP on 18.10.2003, 20.11.2003 and 25.12.2003, the OP never disclosed if there was any mal-union or non-union of bones or the left pelvic bone was protruding upwards. It shows that the problem was already there but the OP was not disclosing it to the complainant. He was gaining time, he did not refer her to any other hospital so that the said blunder does not come to notice. He is now making a false excuse by taking benefit of delay which he himself had caused.
30. The main allegation of the OP is that the complainant had put weight on her legs, due to which, there was mal-union or non-union of the joint. It is not his case if the bone had properly joined at its proper place when she was discharged from the hospital by him nor is any report/record to prove the same. It is also not his case if due to putting of weight, there was re-fracture of bones at that very place where a fracture had earlier occurred due to accident on 18.8.2003 and it was due to that reason that non- union or mal-union existed. In the X-rays conducted, subsequently, it was not mentioned that there was re-fracture at the place or the bones had earlier joined and, thereafter, there was re-fracture at that very joint. The reports have rather suggested that it was an old fracture. The contention of the OP that the problem occurred due to the complainant putting weight is, therefore, ruled out.
31. The learned counsel for the OP referred to the opinion of Dr.R.P.S.Boparai (Ex.R12), Professor and Head of the Department of Orthopaedics, Government Medical College, Amritsar. It is argued that he fully investigated the case with X-rays, ultrasound, scanning and MRI of the pelvis and opined that conservative treatment in the form of bilateral skin traction and medicines was standard treatment given to the complainant; that good care was taken of the patient by the OP and there is no likelihood Consumer Complaint No.4 of 2006 22 of much permanent disability in such cases. He also opined that there is no negligence on the part of the Orthopaedics Surgeon Dr.Kulwant Singh from the medical and technical point of view. However, minor residual disability, if any, could be the result of multiple fractures sustained by her during the accident which is normal in due course of nature.
32. The contention of Dr.R.P.S.Boparai is that the complainant was fully investigated with X-rays, Ultrasound scan and MRI scan of the pelvis/c which helped in arriving at the diagnosis. He did not mention the date of X- rays, ultrasound or scanning or number thereof. The learned counsel for the complainant argued that it was intentionally omitted because Dr. Boarai had not perused any such X-rays, ultrasound scanning and MRI scanning of the complainant. In his cross-examination, Dr. Boparai deposed that he received the letter along with record from the Assistant Commissioner of Police, Model Town, Jalandhar for his medical opinion by registered post. He gave his opinion regarding X-rays of LS spine and pelvis because it was the part of the file which he examined. This file was taken by the official after he recorded his opinion. The Commission then summoned the Assistant Commissioner of Police, Model Town, Jalandhar, according to him, he conducted an enquiry on the basis of the report submitted by Dr.Boparai and submitted the cancellation report Ex.R10 to the Police Commissioner, Jalandhar who sent it to the SHO concerned. A report (under Section 173 (8) Cr.P.C.) was, subsequently, submitted before the learned Magistrate but the cancellation report was not accepted and, as mentioned earlier, the charge was framed against the OP vide Ex.CX/3.
33. According to the Assistant Commissioner of Police, the documents which were sent by him to Dr.Boparai for his opinion were attached by him with the cancellation report which was forwarded to the Consumer Complaint No.4 of 2006 23 Commissioner. After the approval of the Commissioner, these documents were submitted through SHO to the Court concerned. He further admitted that the documents which are part of the cancellation report were the only documents sent by him to Dr.Boparai and no other documents. However, when the complainant applied for copy of the record from the Court concerned, it was reported on his application Ex.C66 that no such record has been submitted to the Magistrate along with the cancellation report. The report Ex.R10 of the Assistant Commissioner of Police also does not show if any X-ray ski-gram, CT scan or MRI scans were attached with the said report. Further, according to the Assistant Commissioner of Police, the documents were sent by the police to the Head of the Department/Administrator(Orthopaedic), Government Medical College and Hospital, Amritsar vide Ex.CX12. On the other hand, Dr. Boparai in his cross-examination deposed that the letter along with the file was sent to him by the Assistant Commissioner of Police, Model Town, Jalandhar. His statement, therefore, belies if the documents were sent to the Head of the Department/Administrator and not to Dr.Boparai directly. It all shows that neither there were any documents with the police nor the same were provided to Dr. Boparai as claimed by him in his report nor the same were returned by him to the police nor these were submitted further to the Court. They have just concocted a false story to obtain this report Ex.R12 from Dr.Boparai to help the OP and submitted a cancellation report (under Section 173(8) Cr.P.C.) to the police. The Magistrate considered this report but did not find any merit in it and framed a charge against the OP. The OP filed a revision petition against the same but the said revision petition has since been dismissed by the learned Sessions Judge vide his order dated 1.10.2011, a copy of which has been attached with the written arguments Consumer Complaint No.4 of 2006 24 which was not disputed by the OP. The report of Dr. Boparai having not been based on any record, therefore, cannot be accepted to conclude that proper treatment was given to the complainant.
34. It is argued by the learned counsel for the complainant that the OP has also submitted the affidavits of Dr.Suresh Sharma and Dr.Rajneesh Nagpal. They have not checked the patient even once and they cannot say anything about the treatment given by the OP to the patient. Their testimony, therefore, cannot be read in evidence.
35. The learned counsel for the OP then argued that the complainant Sandeep Kaur had appeared for driving licence and was issued a driving licence holding that she was not suffering from any disability to drive a vehicle. It is argued that the doctor issued a certificate having personally examined Sandeep Kaur and found that the condition of arms, legs, hands and joints of both extremities of the candidate and she was medically fit to hold a driving licence. On its basis, the licence was issued to her which shows that the certificate Ex.C63 showing that she was having disability of 45% permanent, was, therefore, a procured one and should not be relied upon. It is argued that application for driving licence proves that there was no deficiency in service on the part of the OP and she had cured well.
36. We do not find any merit in this argument. Whether Sandeep Kaur has been cured well or not has been discussed above and is proved from the X-rays reports and MRI report. The OP has not produced any subsequent reports to suggest if the defects noticed in those reports had been cured. The OP did not even produce the affidavit of the doctor who issued the certificate to Sandeep Kaur that she was able to drive the vehicle to clarify as to in case of what disability a person cannot be issued such a Consumer Complaint No.4 of 2006 25 certificate and therefore, cannot get a driving licence. As regards obtaining of driving licence, even a handicapped person can drive the vehicle. All that the applicant is to satisfy under Clause (b) of Sub Section (3) of Section 9 of the Motor Vehicles Act is that he/she may not be suffering from any disability which is likely to cause his/her driving to be a source of danger to the public. The mere fact that the complainant applied for a driving licence or obtained the same neither proves that there was disability of the type mentioned in the reports referred to above or that the OP was not negligent in rendering proper service.
37. When the OP came to know that Sandeep Kaur had applied for a driving licence and has obtained the report of the Doctor on the application for driving licence to the effect that she was competent to drive a vehicle, he filed a complaint against her alleging that on the one hand, she was claiming to be fit to drive the vehicle and, on the other, she has obtained a medical certificate from the Civil Surgeon, Gurdaspur reporting that she was permanently handicapped to the extent of 45%, she was, therefore, guilty of an offence under Sections 420, 467, 468, 471 IPC. The police without obtaining any expert advice about the culpable liability of Sandeep Kaur as to whether a person who is 45% handicap, due to the pelvic injuries is competent to drive a vehicle or not, were quick enough to lodge FIR Ex.R12 against her. The learned counsel for the OP wants us to presume that her earlier reports regarding 45% disability is a false report and that she is hale and hearty and enjoying her life properly. We do not find any merit in this argument. The OP has not produced any such evidence to suggest that a person 45% disabled due to pelvic injuries is unable to drive a vehicle. Further there is no evidence X-ray, CT scan or MRI report if there are no pelvic injuries on the body of Sandeep Kaur or if there is no upward Consumer Complaint No.4 of 2006 26 protrusion and non-union of pelvic bone as mentioned in different reports referred to above. The OPs rather admit these problems but say that these were due to putting weight on her legs by Sandeep Kaur complainant. The OPs have nowhere made their stand clear whether there is no such disability in her and whether such a disability existed when she was discharged on 7.10.2003. There is no mention whether there was such disability when she visited him on 18.10.2003, 25.11.2003 and 25.12.2003. In fact, the OP in order to put pressure on the complainant is resorting to dubious means and is fully assisted in this respect by the police which were ready to register a case even without examining whether any cognizable offence is made out or not. We are, therefore, of the opinion that obtaining a driving licence or the registration of FIR Ex.R12 is not going to help the OP and on its basis, it cannot be said if there is no medical negligence on his part.
38. The complainant was discharged by the OP on 7.10.2003. According to him, she was discharged in good satisfactory condition. There is no mention in the discharge certificate as to what precautions the complainant was to take. There is no mention if she was suggested not to put weight on her legs or she was to continue with traction and if so, for how long. When the patient is discharged, it is the duty of the Doctor/Hospital to prescribe precautions to be observed by the patient but in the present case, no such precautions were prescribed. Even if it is presumed for the sake of arguments, though it is denied by the complainant that she put weight on her legs, it was negligence on the part of the OP who did not advise the complainant properly in this respect. There is deficiency in service on the part of the OP in this respect also.
39. The learned counsel for the OP has also argued that the complainant had moved a complaint to the MCI (Medical Council of India), Consumer Complaint No.4 of 2006 27 Punjab which after enquiry held that there was no negligence on his part. His contention is that in view of this report which amounts to expert evidence, no action can be taken against him. This argument also is devoid of merit. We have gone through the report of the Disciplinary Committee and that of the MCI from which it is clear that out of 23 complaints against different doctors, the action was taken only in two cases and in those two also, only warning was issued to the doctor. The learned counsel for the complainant argued that in fact, the Medical Council is constituted on the basis of voting by the doctors including the OP and, therefore, the office bearers of MCI who are elected with the help of votes cast by the doctors who are medically negligent is not going to take action against them. It is argued that the Member of the Council would always have the next election in mind because if strict action is taken by him against the doctor, his chances of winning the election for the next tenure would be bleak. Further more, in the report submitted by the Medical Council, no details have been given, no reasons have been given to exonerate the doctor and, therefore, such a sketchy report which is not a speaking one, cannot be taken as a piece of evidence to help the OP.
40. After leaving the OP hospital, the complainant had been running from pillar to post under the hope that they would get the treatment to put the bone on right track of healing. The complainant, however, has not been able to find any hope so far. They have produced a list of doctors and institutions which were contacted/visited by them for the treatment. The prominent among those are PGI, Chandigarh, DMC and Hospital, Ludhiana, Dr.Hardas Singh Sandhu, Ex-Professor and Head of Department, Orthopaedics, CMC, Ludhiana, Dr.Yogesh Gulati, Civil Surgeon, Senior Consultant, Spine Surgery, Apollo Hospital, Delhi, Dr.G.S.Tucker, Consumer Complaint No.4 of 2006 28 Orthopaedic Surgeon, Batra Hospital, Delhi, All India Institute of Medical Sciences, Delhi, Baraham Chikitsalaya, Haridwar (U.P.), Dr.Malcom Smith, M.D. Partners Associate Chief of Orthopaedic Trauma Services, Massachusetts General Hospital, Boston (USA) and others. So far the complainant has not been able to see a ray of hope for improvement in the condition of Sandeep Kaur. It was not a case which should have resulted in the manner it did. And if it was so complicated that OPs were unable to set it right, they should have referred her to some Super Speciality Hospital for surgical intervention. Viewed from any angle, the negligence of OP is writ large.
41. In fact, this all occurred due to the reason that Dr.Kulwant Singh OP did not adopt the established and proper approach to the treatment of the complainant. He should have first got conducted X-ray examination and should have obtained opinion thereon from the Radiologist before starting the treatment. It was required of Dr.Kulwant Singh OP that he monitored the progress of treatment periodically through X-ray, CT Scan or MRI and should have retained the result or would have mentioned the same in his treatment record. Needless to mention that Dr.Kulwant Singh is not a Radiologist and it was necessary for him to obtain the opinion of some Radiologist to study the skiagram or the image of Image Intensifier. Instead of obtaining the opinion, he claims to have himself studied the injuries by scanning the same through an Image Intensifier which appears to be not only wrong approach but appears to be a false story. It was expected of Dr.Kulwant Singh OP that if he was unable to treat the complainant even after a lapse of 7 weeks, he should have told this fact to the complainants and should have referred her to some Super Speciality Hospital but he continued with the treatment either to conceal his drawbacks or to earn Consumer Complaint No.4 of 2006 29 unnecessary fees from them. It may have been easy at the earlier stages to set the bones right even by surgical intervention. While discharging Sandeep Kaur, specific instructions should have been given on the discharge certificate where also he was lacking. The OP, therefore, did not adopt a reasonable care either in the treatment of the complainant or in monitoring the progress of the treatment or while discharging her. He, therefore, converted a youthful girl into a cripple who is 45% handicapped. On the other hand, the complainant was dragged into criminal litigation for the sole purpose of putting pressure on her to withdraw the complaint. The OP, therefore, committed these defaults which no medical professional in the ordinary sense and prudence would have done. On the other hand, he failed to take appropriate steps as referred to above which again no medical professional in his ordinary senses and prudence would not have failed to do. His conduct, therefore, fell below that of the standards of a reasonably competent practitioner in his field. In view of the cases Kusum Sharma and others and Jacob Mathew, cited by the learned counsel for the OPs, the complainants have succeeded in proving that the OPs were guilty of medical negligence and deficiency in service.
42. As regards the quantum of compensation, we may first refer to 34 institutions/hospitals/doctors as given in the list Annexure C7 which the complainants claimed to have contacted to get further treatment in the matter. The complainants have attached with their complaint various receipts Ex.C17 to Ex.C37 compiled it vide Ex.C11 to show that they had already spent a sum of Rs.2,04,878/- on her treatment till the filing of the complaint and thereafter, some more expenses were incurred as is depicted from Ex.A57 making the total expenditure of Rs.2,23,130/-. The complainants have also attached the details vide Annexure A58 with which all the receipts Consumer Complaint No.4 of 2006 30 were attached showing that he has spent a sum of Rs.14,846/-and also Annexure A59 vide which Rs.1,07,461/- were spent in contacting various doctors and hospitals for which not only fee was paid but also the journey was undertaken and expenses were incurred on transportation. We are, therefore, of the opinion that the complainants would be entitled to this amount of Rs.14,846/- + Rs.1,07,461/- + Rs.2,23,130/- = Rs.3,45,437/-.
43. A youthful girl of 20 years who is yet to enter her charming world has been converted into a cripple due to the medical negligence of the OP who failed to give proper treatment to her. Needless to mention that due to the disability and reduction of her left leg by 1.5 inches, she stands in the list of physically challenged persons. The contention of the complainants is that due to this reason, she feels humiliated and has developed suicidal tendencies. Her employment and matrimonial prospectus have certainly become limited and the disability would affect the enjoyment in life. Due to her limited activity, the life span of a person decreases. She has to depend upon the attendant which not only slows the pace of life but also requires monetary expenses. The loss which she has suffered due to this trauma which reduced her chances to settle in life cannot be measured in money, we, however, are of the opinion that a sum of Rs. Ten Lakhs would be just and proper.
44. It is not only the monetary loss and prospectus of losing employment and enjoyment in life which is lost but all the three complainants have suffered mentally and physically during this period of more than 8 years. They have not only been running after the doctors for her treatment but have been pursuing the cases and tried to defend themselves from the OP who was helped by the police in first giving a cancellation report in the case registered against him and thereafter, lodging a criminal Consumer Complaint No.4 of 2006 31 case against the complainant regarding forgery and cheating. We are, therefore, of the opinion that for this mental and physical harassment, the complainants are entitled to Rs. Five Lakhs as compensation.
45. In view of the above discussion, we are of the opinion that the present complaint succeeds. The same is, accordingly, allowed with costs. The OPs are directed to pay to the complainant a sum of Rs.18,45,437/- within a period of 30 days from the date of receipt of a copy of the order, failing which, the amount would be liable to be paid along with interest @ 9% per annum since the filing of the present complaint i.e. 17.2.2006 till the amount is actually paid to the complainants. The OP would also be liable to pay Rs.20,000/- as costs of litigation.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (VINOD KUMAR GUPTA) MEMBER Aug. 01, 2012.
Paritosh Refer to Reporter