State Consumer Disputes Redressal Commission
Manjinder Singh S/O Shri Ranjit Singh vs Gurkeerat Hospital, Ludhiana Road, on 25 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1000 of 1999
Date of institution : 14.9.1999
Date of decision : 25 .11.2009
Manjinder Singh s/o Shri Ranjit Singh son of Shri Nahar Singh, aged 21 years,
resident of Village Jalaladiwal, Sub Tehsil Raikot, District Ludhiana.
.......Appellant
Versus
1. Gurkeerat Hospital, Ludhiana Road, Raikot, District Ludhiana through Dr.
Manbir Singh.
2. Dr. Manbir Singh of Gurkeerat Hospital, Ludhiana Road, Raikot, District
Ludhiana.
3. M/s Oriental Insurance Company Ltd., Clock Tower, Ludhiana.
4. Dayanand Medical College and Hospital, Ludhiana through its Principal
(Deleted vide order dated 21.9.1999).
......Respondents
First Appeal against the order dated 11.8.1999 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Lt. Col. Darshan Singh (Retd.), Member.
Shri Piare Lal Garg, Member.
Present :-
For the appellant : Shri Dinesh Malhotra, Advocate.
For respondents No.1&2 : Shri Pankaj Gupta, Advocate and Dr. Manbir Singh with him.
For respondent No.3 : None.
For respondent No.4 : Deleted vide order dated 21.9.1999.
JUSTICE S.N. AGGARWAL, PRESIDENT:
For order, see First Appeal No.964 of 1999 (Gurkeerat Hospital and another vs. Manjinder Singh and others).
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(LT. COL. DARSHAN SINGH [RETD.])
MEMBER
November 25 , 2009 (PIARE LAL GARG)
Bansal MEMBER
First Appeal No. of 200. 2
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
Misc. Application No.2218 of 2009
In/and
First Appeal No.964 of 1999
Date of institution : 7.9.1999
Date of decision : 25 .11.2009
1. Gurkeerat Hospital, Ludhiana Road, Raikot, District Ludhiana through Dr. Manbir Singh.
2. Dr. Manbir Singh of Gurkeerat Hospital, Ludhiana Road, Raikot, District Ludhiana.
.......Appellants Versus
1. Manjinder Singh s/o Shri Ranjit Singh son of Shri Nahar Singh, aged 21 years, resident of Village Jalaldiwal, Sub Tehsil Raikot, District Ludhiana.
..........Respondent
2. M/s Oriental Insurance Company Ltd., Clock Tower, Ludhiana.
3. Dayanand Medical College and Hospital, Ludhiana through its Principal (deleted vide order dated 21.9.1999).
......Proforma Respondents First Appeal against the order dated 11.8.1999 of the District Consumer Disputes Redressal Forum, Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Lt. Col. Darshan Singh (Retd.), Member.
Shri Piare Lal Garg, Member.
Present :-
For the appellants : Shri Pankaj Gupta, Advocate and
Dr. Manbir Singh with him.
For respondents No.1 : Shri Dinesh Malhotra, Advocate.
For respondent No.2 : None.
For respondent No.3 : Deleted vide order dated 21.9.1999.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This order of ours shall dispose of two appeals, namely, First Appeal No.964 of 1999 (Gurkeerat Hospital and another vs. Manjinder Singh and others) and First Appeal No.1000 of 1999 (Manjinder Singh vs. Gurkeerat Singh and others) as both these appeals have been directed against the same impugned order dated 11.8.1999 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"). For the sake of convenience, facts are taken First Appeal No.964 of 1999. 2 from First Appeal No.964 of 1999 and the parties would be referred by their status in this appeal.
2. The facts of the case are that the respondent was an agriculturist. He was helping his father Ranjit Singh in agriculture profession. He was standing near a generator set. His payjama got entangled in the generator. Thereby he suffered an injury in the calf of his right leg below the knee on 12.3.1998 at about 4.30 P.M. He was immediately taken to Gurkeerat Hospital, Ludhiana Road, Raikot appellant No.1 (in short "appellant Hospital") of which Dr. Manbir Singh appellant No.2 (in short "appellant doctor") was the owner. The appellant doctor told the respondent and to his attendants that injury was minor in nature and he would take care of it. He immediately sutured/stitched the wound and admitted the respondent as indoor patient. He prescribed some medicines. These were brought by the attendants of the respondent from the chemist's shop which was situated inside the premises of the appellant Hospital. The respondent had made the payment of Rs.3,000/- to the appellant doctor as his medical fee and spent Rs.8,000/- on the medicines.
3. It was further pleaded that the pain on the wounded part of the leg of the respondent started increasing and it became unbearable. The respondent told the appellant doctor about it and enquired about the reason. The appellant doctor assured the respondent that the pain would subside and, therefore, there was no cause to worry. On the third day of the admission of the respondent in the appellant Hospital the wound started giving foul smell. The compounder of the appellant doctor kept on changing the bandage. The appellant doctor could not explain the reason for increase in the pain. He only answered that the medicine was giving smell and the wound was healing up. The respondent and his attendants requested the appellant doctor to get the wound subjected to x-ray examination or to any other tests so as to reduce the pain which was increasing.
4. It was further pleaded that the appellant doctor kept on assuring them that the wound would recover within a week and there was no necessity for performing First Appeal No.964 of 1999. 3 x-ray examination or any other medical tests. The compounder, however, continued changing the bandage daily. 3/4 days thereafter, there was severe swelling in the whole leg and the pain was unbearable. The appellant doctor did not pay attention to the anxious enquiries made by the respondent and his attendants. The reasons for swelling, foul smell and pain were not given by the appellant doctor to the respondent or to his attendants.
5. It was further pleaded that on 19.3.1998 the appellant doctor called Ranjit Singh father of the respondent and told him that the wound was not responding to the treatment and gangrene appeared to have developed. The only remedy was to amputate the leg to save the life of the respondent. On this the respondent and his attendants were extremely shocked as the appellant doctor was assuring the respondent of recovery prior to that. If the respondent or his attendants had any inkling about this tragedy the respondent could have got medical treatment from a more specialized hospital and from a doctor who was specialist. The respondent refused to get his leg amputated from the appellant doctor.
6. It was further pleaded that immediately the respondent and his attendants called for the taxi and the respondent was shifted on 19.3.1998 to the Dayanand Medical College & Hospital, Ludhiana respondent No.4 (in short "DMC"). The respondent had started having fever on 14/15.3.1998 when he was lying admitted in the appellant Hospital. This fever persisted till 19th March 1998 when he was shifted to DMC, Ludhiana. It was later on detected to be a case of typhoid.
7. It was further pleaded that the doctors of the DMC, Ludhiana told the respondent that they had delayed reaching the Hospital in time. They further informed the respondent about the negligence of the appellant doctor and that he should have sutured/stitched the wound unless the wound had healed up. They also told the respondent that there was no alternative but to amputate the leg as the gangrene had already developed beyond controllable stage. They had further informed that if the respondent had taken proper medical treatment this catastrophe would have been avoided. The doctors also asked for blood from the First Appeal No.964 of 1999. 4 relatives as the respondent was subjected to operation. 12 units of blood were taken from the relatives/attendants of the respondent including from Ranjit Singh father of the respondent.
8. It was further pleaded that the respondent and his attendants had already spent Rs.11,000/- which they paid to the appellant doctor for medical fee, medicine etc. They had also deposited a sum of Rs.23,000/- in the DMC, Ludhiana. The said hospital also charged for the testing of various persons to match the category of blood and a sum of Rs.5,400/- was spent. The respondent also spent a sum of Rs.4,200/- for the purchase of blood. Rs.20,000/-
approximately was spent on the medicines. From the first day of the respondent in DMC, Ludhiana upto 26.4.1998, Rs.50,000/- were spent by the respondent and his father on medicines and on misc. expenses.
9. It was further pleaded that after shearing the leg, the remaining limb of the respondent was in the shape of a stump and he was unable to look after himself or to do his day to day recourse. He has become completely disabled and handicapped person and was unable to do his vocation as cultivator. It was permanent disability to the extent of 80%. Alleging medical negligence on the part of the appellant hospital and appellant doctor the respondent filed the complaint against them in the District Forum for recovery of Rs.4,.90,000/- on account of physical deformity, physical pain and financial loss, loss of earning etc. Compensation, interest and costs were also prayed.
10. The appellant hospital and the appellant doctor filed the joint written statement. It was denied if the respondent was assisting his father Ranjit Singh in the cultivation of his land. Rather the respondent was working at Dev Electrical Works, Raikot which was at a distance of half kilometer from the appellant hospital. It was admitted that at about 4.30 P.M. on 12.3.1998 the respondent had met with an accident with generator which resulted into serious injury of right lower leg causing extensive crush injury of right calf muscles damaging major blood vessels permanently.
First Appeal No.964 of 1999. 5
12. It was denied if the respondent was brought immediately to the appellant hospital. In fact the respondent was brought at 5.30 P.M. and there was delay in bringing the respondent to the appellant hospital. The respondent was in a very bad condition and he had lost a great deal of blood before he reached the appellant hospital. The injury was caused to the respondent by a pointed rotating object of an engine generator set which by its drilling motion at a very high speed crushed the right calf muscles into bits of several small pieces. This crush injury was severe enough to damage the major blood vessels permanently resulting in complete cessation of blood flow to the distal part of right leg below the knee leading to gangrene.
13. It was further pleaded that the respondent was in a state of circulatory collapse and shock. When he had come to the appellant Hospital, he was profusely bleeding. His pulse was not palpable and his blood pressure was not recordable. His heart sound was feeble, respiration laboured and level of consciousness as delirious. On feel, he had clammy skin. It was a large lacerated crush injury in the posterior aspect of leg below right knee. Wound size was 6" X 6" and it was bone deep. The wound was profusely bleeding. The crush injury involved a large part of right calf muscles and large part of muscle mass was lost due to the injury. There were small bits of muscle tissue found with the clothes (Payjama). There was extensive destruction of muscle tissue and blood vessels. Peripheral pulses distal to the wound were not present. Right femoral pulse was present.
14. The appellant doctor took resuscitative measures to revive the patient from the state of circulatory collapse and shock. Few stitches were given to approximate the wound to prevent further blood loss.
15. It was denied if the appellant doctor had told the respondent or his attendants that the injury was minor or that he would take care of the same or if he had administered oral medicines or if the respondent had paid a sum of Rs.3,000/- to the appellant doctor as medical fee. It was pleaded that no fee was paid by the First Appeal No.964 of 1999. 6 respondent or by his attendants to the appellant hospital or to the appellant doctor. It was not denied that the respondent bought medicines for the value of Rs.8,000/-.
16. It was pleaded that as a matter of fact the appellant doctor had explained to the respondent and his attendants the prognosis and condition of the leg and type of injury resulting in the loss of distal pulsation due to cessation of the blood flow to the lower part of the right leg. They were also told by the appellant doctor to take the patient to DMC, Ludhiana or to any other specialized hospital but the respondent and his attendants refused to take the respondent in that condition and requested the appellant doctor to continue with the treatment in the appellant hospital. On the request of the respondent and his attendants, the respondent was admitted and he was given the medicines.
17. It was further pleaded that the story pleaded by the respondent was based on twisted facts. It was denied if the appellant doctor had told the respondent that there was nothing to be worried or that the pain would subside gradually. Rather the appellant doctor had told to the respondent about the seriousness of his disease and that the chances of recovery were bleak. On the same day, the pulse of the respondent was 130 per minute but it was feeble and blood pressure was 80/60 at 8.30 P.M. Then the respondent was given medical treatment in the form of injections/medicines. The blood pressure and pulse rate of the respondent had become better.
18. It was further pleaded that on 13.3.1998 at about 3.00 A.M. the pulse rate and blood pressure had improved but the distal pulsation of the right leg of the respondent was not palpable. All distal pulsation of the right leg below the knee was absent. The respondent was duly informed about the impending gangrene of the right leg and the need of the amputation of the right leg was advised. The respondent was also advised that he should be shifted to DMC, Ludhiana or to CMC, Ludhiana but the respondent and his attendants refused to do so. The medical treatment in the form of injections and medicines was given to the respondent on 13.3.1998.
First Appeal No.964 of 1999. 7
19. It was further pleaded that the respondent was examined by Dr. Bhupinder Singh, M.S. on 13.3.1998 at 9.30 A.M. He had found the skin colour of the right lower leg of the respondent changing to bluish and swelling of the leg. Distal pulsation around the ankle was missing. He advised immediate orthopedic consultation. It was done and the respondent was got examined from Dr. B.S. Hunjan M.S. (Ortho) who also advised the amputation of the leg. Relatives of the respondent were called and he was asked to give his consent. Proper medicines in the form of injections etc. were being given. Dressing was done at 12.30 P.M. There was slight oozing of blood. The skin of the leg turned bluish and the leg was kept in a raised position. The respondent and his father were asked to give consent for amputation but they promised to give the same after consulting the members of their family.
20. It was denied if the appellant doctor was a compounder and that the appellant doctor did not answer to the queries of the respondent to tell him about the status of wound as alleged. It was further pleaded that on 14.3.1998 the blood pressure of the respondent was normal. He was given proper treatment. Dressing was done. There was not active bleeding. There was bluish discolouration of the right lower leg. Gangrene had already developed below the knee. Distal pulses were absent. Sensation had impaired. Active movement was not present. Blood transfusion of one unit was administered at 11.00 A.M. Proper injections and proper medicines were given. X-ray examination was already conducted on 13.3.1998. Proper treatment was being given to the respondent. It was denied if the appellants had ever assured the respondent that there was no anxiety or that the wound would recover in a week.
21. It was further pleaded that on 15.3.1998 again injections were given so also the medicines. The blood pressure of the respondent was normal. The wound condition was as before with discharge. The distal pulsation was absent in the right leg. There was bluish discolouration of the skin of the right lower leg which had become gangrene. Consent for amputation was asked but it was not given. First Appeal No.964 of 1999. 8
22. It was further pleaded that on 16.3.1998 almost the same treatment was given to the respondent plus addition of other medicines. Dressing was done at 8.00 A.M. and at 8.00 P.M. There was some discharge from the wound. Smell was also there. Peripheral pulses distal to the right knee were absent. Skin developed bluish discolouration. Right lower leg became oedematous and gangrenous. Again consent for amputation was called but it was not given. The respondent was duly informed of the risks of the delay. The condition of the injury, the condition of the patient, the treatment and prognosis were duly explained to the respondent. The respondent and his attendants delayed the consent for amputation. There was no need of any more tests or for further diagnosis as alleged by the respondent.
23. It was denied if on 19.3.1998 appellant No.2 had told to the father of the respondent that the wound was not responding to the treatment or that the gangrene had developed and that the only remedy was to amputate the leg. The appellants had already informed the respondent and his attendants that due to serious crush injury on the calf muscles and extensive destruction of muscle tissue and vessels, the only alternative was the amputation of the leg as the gangrene was to appear. The story has been falsely made out by the respondent about the medical negligence on the part of the appellants.
24. It was further pleaded that the respondent and his attendants had insisted for the treatment of the respondent in the appellant hospital where he was brought in a very serious condition hanging between life and death. He was given best medication in those circumstances and the life of the respondent was saved. Instead of agreeing to the amputation of the leg of the respondent, the attendants of the respondent had requested the appellant doctor for the discharge of the respondent. As such the respondent was discharged on 19.3.1998 along with the discharge slip. All the reports of medical tests and x-ray films were given to the respondent and his attendants. The damage caused to the calf muscles and to the blood vessels was irreparable. The severity of the injury and loss of blood supply First Appeal No.964 of 1999. 9 to the distal part of the right leg and damage to the blood vessels and calf muscles resulted to the cessation of blood circulation below the right knee joint which ultimately led to gangrene. The damage was irreversible.
25. It was denied if there was any medical negligence on the part of the appellant hospital or appellant doctor or if the respondent was entitled to any compensation. Dismissal of the complaint was prayed.
26. The Oriental Insurance Company Limited respondent No.3 also filed the written reply. It was pleaded that respondent No.3 had issued professional indemnity insurance policy in favour of DMC, Ludhiana respondent No.4. Since no medical negligence is alleged against respondent No.4, therefore, respondent No.3 is not liable to pay any amount of compensation.
27. Respondent No.4 also filed the written reply. It was pleaded that the respondent was admitted in the DMC, Ludhiana on 19.3.1998 with the following history:-
"Alleged history of injury on his right lower limb occurred when his pajama got entangled in motor of engine on 12.3.98 around 4.00 P.M. History of open and bleeding wound on right leg just below the knee--
-Unable to bear weight on right leg
-History of Vomiting on 18.3.96
-No history of unconsciousness
-No/HO-ENT bleed
-No/HO-conversion at the time of accident
-Later patient went into a state of shock and was revived at Gurkirat Hospital, Raikot where he was also managed in the form of antibiotic and had planned imputation on the patient's and attendants' request. He was then brought to Dayanand Medical College & Hospital, Ludhiana for further management.
-Not a known case of TB/Hypertension/diabetes."First Appeal No.964 of 1999. 10
28. It was denied if the doctors of the DMC, Ludhiana had told the respondent or his attendants that they had delayed in bringing the respondent to their hospital or if they had told him that the treatment given to the respondent was inadvisable or ineffective or if it was not proper or if the appellant doctor was negligent or that he had not conducted the necessary medical tests/scanning etc. immediately after his admission in the appellant Hospital. It was denied if the wound should not be sutured/stitched without repairing the damage inside the wound. It was also denied if they had told the respondent that proper care was not taken in the appellant Hospital or that the proper treatment was not given to him by the appellant doctor or if the proper treatment if given would have saved this catastrophe.
29. It was further pleaded that every effort was made to save the leg of the respondent but when it was found that it could not be saved then the leg was amputated to save the life of the respondent. The attendants of the respondent were asked to arrange for the bottles of blood which were required. Only the necessary expenses have been charged from the respondent and his attendants and the amount of expenditure has been exaggerated by the respondent.
30. It was further pleaded that the leg of the respondent was amputated, just above the knee. The respondent was having temperature on 20.3.1998 as per the history record. It was denied if it was a case of typhoid due to wrong administration of the wound by the appellants.
31. It was denied if the respondent was unable to look after himself or if he was unable to do his day to day recourse. It was also denied if he had become completely disabled or a handicapped person or if he was unable to do any cultivation or if he cannot perform his vocation as cultivator. It was also denied if disability was 80% or if he had become a constant burden on his parents. He can pursue his activities with the help of an artificial limb. It was denied if there was any medical negligence on the part of respondent No.4 or if the respondent was entitled to any compensation. Dismissal of the complaint was prayed. First Appeal No.964 of 1999. 11
32. The respondent proved documents Ex.P-1 to Ex.P38. He also filed the affidavit of Avtar Singh son of Jagir Singh, affidavit of Nardev Singh son of Nand Singh and the affidavit of Nahar Singh, grandfather of the respondent and the affidavit of Ranjit Singh father of the respondent.
33. On the other hand, the appellant doctor filed his affidavit dated 21.4.1999 and the affidavits of Dr. Bhupinder Singh dated 21.4.1999, of Dr. Balwant Singh Hunjan dated 21.4.1999 and of Gurcharan Singh dated 17.4.1999. Dr. Manbir Singh appellant also tendered himself for cross-examination. He was cross- examined at length. Dr. Bhupinder Singh, Dr. Balwant Singh Hunjan and Gurcharan Singh also tendered themselves for cross-examination and were cross- examined at length. Dr. S.C. Ahula, Principal of DMC and Hospital, Ludhiana also filed his affidavit.
34. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint qua the appellant hospital and appellant doctor vide impugned order dated 11.8.1999 and directed them to make the payment of Rs.60,000/- as compensation to the respondent. However it was held that respondents No.3 and 4 have been impleaded without any basis. The complaint qua them was dismissed with costs of Rs.2,000/- each.
35. The appellants filed the appeal (First Appeal No.964 of 1999) for setting aside the impugned order dated 11.8.1999.
36. Manjinder Singh respondent also filed appeal (First Appeal No.1000 of 1999) seeking enhancement of the amount of compensation.
37. Both these appeals were disposed of by common order dated 30.9.2002. The appeal filed by the appellant hospital and appellant doctor (First Appeal No.964 of 1999) was dismissed by this Commission with costs of Rs.1,000/-. The appeal filed by the respondent (First Appeal No.1000 of 1999) was accepted; the amount of compensation was enhanced to Rs.4,90,000/- and the appellants were directed to pay this amount to the respondent.
First Appeal No.964 of 1999. 12
38. The appellants filed revision petition No.1282 of 2003 (Gurkeerat Hospital and another vs. Manjinder Singh) in the Hon'ble National against the order dated 30.9.2002. It was disposed of by the Hon'ble National Commission vide order dated 4.5.2009. The counsel for both the parties had agreed that the case be remitted back to the State Commission with a direction to refer the case to the Board of doctors to obtain the expert opinion on the subject. Accordingly the judgment dated 30.9.2002 passed in First Appeal No.964 of 1999 and First Appeal No.1000 of 1999 was set aside and the matter was remitted to this Commission for referring the matter to the PGI, Chandigarh for seeking the medical expert opinion from the Board of doctors.
39. In compliance with the judgment of the Hon'ble National Commission, this Commission made reference to the Director, PGI, Chandigarh for seeking expert opinion of the Board of doctors about the medical negligence attributed to the appellants. The Director, PGI, Chandigarh constituted a Board of doctors vide order dated 26.8.2009. The Medical Board examined the matter and reported as under:-
"The board of doctors is of the opinion that:
1. As per the record supplied the patient had crush injury right lower leg along with vascular injury. From the record it looks that limb was not salvasable and amputation of the affected limb was eminent.
2. The party has claimed that the patient was not given proper treatment at the Gurkeerat Hospital, whereas from the claim of the treating doctor as listed in the documents supplied; it appears that the patient received proper treatment at the hospital.
3. Whether the seriousness of the condition of the patient, proposed treatment, possible final outcome and the urgency of the treatment was properly explained to the patient or his relatives by the treating doctor cannot be commented upon as the same is not reflected in the documents supplied.First Appeal No.964 of 1999. 13
4. Whether proper consent of the patient/kin/relatives to continue treatment in the said hospital and not shifting the patient to DMC despite worsening condition of the patient, was taken or not cannot be commented upon as it is not available in the documents supplied.
5. The negligence of the treating doctors cannot be commented upon as a. It appears from the documents that the treating doctors did not advice wrong treatment to the patient.
b. No document has been provided to confirm whether the patient was explained properly about the nature of the illness, treatment and final outcome and whether the consent to continue the treatment was obtained or not.
CONCLUSION:
In view of the above, the Medical Board cannot pin point whether there has been medical negligence in this case or not.
Sd/- Sd/- Sd/-
(Dr. Rajinder Singh) (Dr. Vijay Goni) (Dr. R.K. Sharma)
Chairman Member Member Secretary"
40. The medical expert opinion was received from the Board of doctors which has been reproduced above. The respondent had filed an application for permission to cross-examine Dr. Rajinder Singh, Head, Department of General Surgery. That application has been dismissed by this Commission vide separate order of even date.
41. The first submission of the learned counsel for the respondent was that the expert opinion is just advisory in nature and is not binding on the Court. In this context reference was made to the judgment of the Hon'ble Supreme Court reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) and the subsequent judgment reported as "RAMESH CHANDRA AGRAWAL vs. REGENCY HOSPITAL LTD. & ORS."
IV(2009) CPJ 27 (SC).
First Appeal No.964 of 1999. 14
42. It was held by the Hon'ble Supreme Court in Ramesh Chandra Agrawal's case (supra) as under:-
"15. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case.
The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
43. It is, therefore, held that the expert opinion given by the Medical Board is advisory in nature.
44. The next submission of the learned counsel for the respondent was that the medical literature was not available to the Board of doctors. Therefore the report of the Board of doctors cannot be made the basis for rejecting the claim of the respondent. Reference was also made to the medical literature Annexure A-1 submitted in this Commission in order to explain the definition of 'crush injury', nature of such injury and the kind of medical treatment which was advisable. It was, therefore, submitted that since the medical literature was not taken into consideration, therefore, the report of the Board of doctors needs to be rejected and the appeal of the appellants deserves to be dismissed.
45. This submission has been considered.
First Appeal No.964 of 1999. 15
46. It has no merits. It cannot be presumed that the doctors who constituted the medical board were not aware about the medical literature on the subject. They were not only the expert doctors of the subject but they had a lot of experience running into number of years and they have examined such like patients in thousands. It is, therefore, held that the report of the Board of doctors cannot be rejected only on the ground that the medical literature has not been referred by them in their report dated 26.9.2009 reproduced above.
47. It was then submitted by the learned counsel for the respondent that the bed head ticket has been prepared at one go by the appellants. It was not prepared on day to day basis. It was submitted that the bed head ticked has been prepared separately on a sheet and not in the routine registers nor the record of that period consisting of other patients has been produced. Hence it was submitted that the bed head ticket produced by the appellants is not a valid piece of evidence and deserves its rejection.
48. On the other hand, the learned counsel for the appellants submitted that since it is a matter of about 10 years old, therefore, the other record has not been retained. This file was retained only for the reason that a court case was pending.
49. These submissions have been considered.
50. The appellant doctor was asked to produce the original bed head ticket of the respondent. It was so produced by him, photocopy of which was already placed on file. The respondent remained admitted in the appellant Hospital from 12.3.1998 at 5.30 P.M. to 19.3.1998 till at 8.00 P.M. when he was discharged for being taken to DMC, Ludhiana.
51. The medical record consisting of bed head ticket of the respondent produced by the learned counsel for the appellants has been perused. It appears that it has been prepared at the one and the same time. No doubt there are entries allegedly made by Dr. Bhupinder Singh and by Dr. B.S. Hunjan but the overall perusal of this document makes it undependable.
First Appeal No.964 of 1999. 16
52. It was submitted by the learned counsel for the respondent that x-ray examination of the injury was advised on 13.3.1998 as per bed head ticket produced by the appellants but the result of the x-ray examination is nowhere mentioned.
53. On the other hand, the learned counsel for the appellants submitted that the x-ray examination was conducted and the x-ray film was given to the respondent and his attendants on 19.3.1998 when he was discharged from the appellant Hospital.
54. It may be so but the fact remains that in the bed head ticket the result of the x-ray examination is nowhere mentioned or discussed.
55. Even as per the version of the appellants, the respondent had suffered a serious injury on right lower leg causing extensive crush injury of right calf muscles damaging major blood vessels permanently resulting in complete cessation of blood flow to the distal part of right leg below the knee leading to gangrene. All distal pulsation of the right leg below the knee was absent. The appellants have also taken the plea that the respondent was duly informed about the impending gangrene of the right leg and the amputation of the right leg was advised.
56. If the condition of the respondent was so serious and critical then it was not advisable for the appellants to keep the respondent in their hospital and should have referred to him in a more specialized Hospital like DMC, Ludhiana or CMC, Ludhiana or PGI, Chandigarh. The appellants did not have any surgeon or orthopedic surgeon.
57. According to the version of the appellants they had requested Dr. Bhupinder Singh, M.S. from Ludhiana to examine the respondent on 13.3.1998 who also gave a dismal picture of the injury suffered by the respondent and advised to take the opinion from Orthopedic Surgeon. Orthopedic Surgeon Dr. B.S. Hunjan was allegedly called from Ludhiana who had also reported that the colour of the leg was bluish and on feel it was cold and there was no peripheral First Appeal No.964 of 1999. 17 pulsation present. Even the appellant doctor had advised amputation of the leg on 13.3.1998 itself. When the appellant hospital and appellant doctor did not have sufficient arrangement at their own level and if they knew that the condition of the respondent could go from bad to worse, therefore, there was no reason for them to retain the respondent any longer in the appellant hospital.
56. The appellant doctor had taken the plea in the written statement that he had asked the respondent and his attendants to shift the respondent to a more specialized hospital but he and his attendants refused to do so and wanted the treatment to be carried on in the appellant hospital.
57. This version of the appellants appears to be a made up story. No such question was put by the appellants to the respondent or to his attendants in writing nor the consent of the respondent or his attendants was obtained to the effect that they did not want to shift the respondent to a specialized hospital like DMC, Ludhiana, CMC, Ludhiana or PGI, Chandigarh or they wanted to have the medical treatment in the appellant Hospital itself.
58. The appellant hospital has not placed on the file any document to show if any such question was put to the respondent or to his attendants or if they had given a written consent not to shift the respondent to a more specialized hospital.
59. No doubt the Board of doctors has reported in their report dated 26.9.2009 that from the record it looked that the limb was salvageable and amputation of the affected limb was imminent and that the proper treatment was given by the appellant hospital yet they have not commented on the plea of the appellants that seriousness of the condition of the respondent or the proposed treatment or the possible final outcome or the urgency of the treatment was properly explained by the appellant doctor to the respondent or to his relatives because no such situation was reflected by the documents furnished by the appellants.
60. The Board of doctors had also reported that they were unable to comment whether the proper consent of the patient i.e. the respondent or of his relatives or of his attendants to continue the treatment in the appellant hospital and for not First Appeal No.964 of 1999. 18 shifting the respondent to DMC, Ludhiana despite worsening condition of the respondent was taken or not as no such record was available.
61. Since there is no record if the appellants had taken the written consent of the respondent or his attendants to continue with the treatment in the appellant hospital or for not being shifted to a more specialized hospital, therefore, the plea of the appellants cannot be accepted that the appellants advised the respondent or his relatives/attendants that the respondent should be shifted to DMC, Ludhiana or CMC, Ludhiana or PGI, Chandigarh or that the respondent and his attendants had refused to do so or they had insisted to continue with the medical treatment in the appellant hospital. This, therefore, amounted to a clear-cut medical negligence on the part of the appellants as they failed to give proper medical advice to the respondent.
62. It may be that keeping in view the nature of serious injury the amputation may have been imminent but earlier to that it was required to be amputated below the knee and the condition worsened so much that the leg was amputated above the knee. It may not have mattered much but the psychological effect on the mind of the victim is substantial that the leg could have been saved had he got the proper and more specialized medical treatment in time in a big medical institution like DMC, Ludhiana, CMC, Ludhiana or PGI, Chandigarh.
63. The Board of doctors has also specifically reported that the negligence of the treating doctor cannot be commented upon. It may not be that the appellant doctor gave the wrong medical treatment but the medical treatment given by him could not be equated with the medical treatment which the respondent might have obtained from the specialized doctor or from the specialized hospital.
64. Therefore it is held that appellant hospital and appellant doctor have committed medical negligence in not referring the respondent to a more specialized hospital for getting more specialized medical treatment and retaining him in his hospital for about a week without his consent by which his condition worsened.
First Appeal No.964 of 1999. 19
65. It may be that the respondent is not totally handicapped and could run his profession but his life has certainly become pitiable and because of his incapacity to move about like a normal person has run off the track. He has become dependant. He is unable to face the social society. He has got the inferiority complex and he has become handicapped.
66. The compensation will not restore him to the normal position but it would be a consolation and will be a source of help to him to run his life. In the circumstances of this case the compensation amount is assessed to be Rs.2,00,000/-.
67. Therefore this appeal (First Appeal No.964 of 1999) filed by the appellants is dismissed.
FIRST APPEAL NO.1000 OF 1999:
68. Keeping in view the discussion held above, this appeal is accepted and the amount of compensation payable by the respondents in First Appeal No.1000 of 1999 is increased from Rs.60,000/- to Rs.2,00,000/-. This amount should be paid by the respondents to the appellant within a period of two months after the receipt of a copy of this order failing which they will be liable to pay this amount of Rs.2,00,000/- with interest at the rate of 7.5% per annum from today till the date of payment. The respondents (First Appeal No.1000 of 1999) shall also pay a sum of Rs.10,000/- to the appellant as costs of litigation.
69. The arguments in these cases were heard on 13.11.2009 and the orders were reserved. Now the orders be communicated to the parties.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(LT. COL. DARSHAN SINGH [RETD.])
MEMBER
November 25, 2009 (PIARE LAL GARG)
Bansal MEMBER
First Appeal No.964 of 1999. 20
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
Misc. Application No.2218 of 2009
In/and
First Appeal No.964 of 1999
Date of institution : 7.9.1999
Date of decision : 25 .11.2009
1. Gurkeerat Hospital, Ludhiana Road, Raikot, District Ludhiana through Dr. Manbir Singh.
2. Dr. Manbir Singh of Gurkeerat Hospital, Ludhiana Road, Raikot, District Ludhiana.
.......Appellants Versus
1. Manjinder Singh s/o Shri Ranjit Singh son of Shri Nahar Singh, aged 21 years, resident of Village Jalaldiwal, Sub Tehsil Raikot, District Ludhiana.
..........Respondent
2. M/s Oriental Insurance Company Ltd., Clock Tower, Ludhiana.
3. Dayanand Medical College and Hospital, Ludhiana through its Principal (deleted vide order dated 21.9.1999).
......Proforma Respondents First Appeal against the order dated 11.8.1999 of the District Consumer Disputes Redressal Forum, Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Lt. Col. Darshan Singh (Retd.), Member.
Shri Piare Lal Garg, Member.
Present :-
For the appellants : Shri Pankaj Gupta, Advocate and
Dr. Manbir Singh with him.
For respondents No.1 : Shri Dinesh Malhotra, Advocate.
For respondent No.2 : None.
For respondent No.3 : Deleted vide order dated 21.9.1999.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This order of ours shall dispose of two appeals, namely, First Appeal No.964 of 1999 (Gurkeerat Hospital and another vs. Manjinder Singh and others) and First Appeal No.1000 of 1999 (Manjinder Singh vs. Gurkeerat Singh and others) as both these appeals have been directed against the same impugned order dated 11.8.1999 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"). For the sake of convenience, facts are taken First Appeal No.964 of 1999. 2 from First Appeal No.964 of 1999 and the parties would be referred by their status in this appeal.
2. The facts of the case are that the respondent was an agriculturist. He was helping his father Ranjit Singh in agriculture profession. He was standing near a generator set. His payjama got entangled in the generator. Thereby he suffered an injury in the calf of his right leg below the knee on 12.3.1998 at about 4.30 P.M. He was immediately taken to Gurkeerat Hospital, Ludhiana Road, Raikot appellant No.1 (in short "appellant Hospital") of which Dr. Manbir Singh appellant No.2 (in short "appellant doctor") was the owner. The appellant doctor told the respondent and to his attendants that injury was minor in nature and he would take care of it. He immediately sutured/stitched the wound and admitted the respondent as indoor patient. He prescribed some medicines. These were brought by the attendants of the respondent from the chemist's shop which was situated inside the premises of the appellant Hospital. The respondent had made the payment of Rs.3,000/- to the appellant doctor as his medical fee and spent Rs.8,000/- on the medicines.
3. It was further pleaded that the pain on the wounded part of the leg of the respondent started increasing and it became unbearable. The respondent told the appellant doctor about it and enquired about the reason. The appellant doctor assured the respondent that the pain would subside and, therefore, there was no cause to worry. On the third day of the admission of the respondent in the appellant Hospital the wound started giving foul smell. The compounder of the appellant doctor kept on changing the bandage. The appellant doctor could not explain the reason for increase in the pain. He only answered that the medicine was giving smell and the wound was healing up. The respondent and his attendants requested the appellant doctor to get the wound subjected to x-ray examination or to any other tests so as to reduce the pain which was increasing.
4. It was further pleaded that the appellant doctor kept on assuring them that the wound would recover within a week and there was no necessity for performing First Appeal No.964 of 1999. 3 x-ray examination or any other medical tests. The compounder, however, continued changing the bandage daily. 3/4 days thereafter, there was severe swelling in the whole leg and the pain was unbearable. The appellant doctor did not pay attention to the anxious enquiries made by the respondent and his attendants. The reasons for swelling, foul smell and pain were not given by the appellant doctor to the respondent or to his attendants.
5. It was further pleaded that on 19.3.1998 the appellant doctor called Ranjit Singh father of the respondent and told him that the wound was not responding to the treatment and gangrene appeared to have developed. The only remedy was to amputate the leg to save the life of the respondent. On this the respondent and his attendants were extremely shocked as the appellant doctor was assuring the respondent of recovery prior to that. If the respondent or his attendants had any inkling about this tragedy the respondent could have got medical treatment from a more specialized hospital and from a doctor who was specialist. The respondent refused to get his leg amputated from the appellant doctor.
6. It was further pleaded that immediately the respondent and his attendants called for the taxi and the respondent was shifted on 19.3.1998 to the Dayanand Medical College & Hospital, Ludhiana respondent No.4 (in short "DMC"). The respondent had started having fever on 14/15.3.1998 when he was lying admitted in the appellant Hospital. This fever persisted till 19th March 1998 when he was shifted to DMC, Ludhiana. It was later on detected to be a case of typhoid.
7. It was further pleaded that the doctors of the DMC, Ludhiana told the respondent that they had delayed reaching the Hospital in time. They further informed the respondent about the negligence of the appellant doctor and that he should have sutured/stitched the wound unless the wound had healed up. They also told the respondent that there was no alternative but to amputate the leg as the gangrene had already developed beyond controllable stage. They had further informed that if the respondent had taken proper medical treatment this catastrophe would have been avoided. The doctors also asked for blood from the First Appeal No.964 of 1999. 4 relatives as the respondent was subjected to operation. 12 units of blood were taken from the relatives/attendants of the respondent including from Ranjit Singh father of the respondent.
8. It was further pleaded that the respondent and his attendants had already spent Rs.11,000/- which they paid to the appellant doctor for medical fee, medicine etc. They had also deposited a sum of Rs.23,000/- in the DMC, Ludhiana. The said hospital also charged for the testing of various persons to match the category of blood and a sum of Rs.5,400/- was spent. The respondent also spent a sum of Rs.4,200/- for the purchase of blood. Rs.20,000/-
approximately was spent on the medicines. From the first day of the respondent in DMC, Ludhiana upto 26.4.1998, Rs.50,000/- were spent by the respondent and his father on medicines and on misc. expenses.
9. It was further pleaded that after shearing the leg, the remaining limb of the respondent was in the shape of a stump and he was unable to look after himself or to do his day to day recourse. He has become completely disabled and handicapped person and was unable to do his vocation as cultivator. It was permanent disability to the extent of 80%. Alleging medical negligence on the part of the appellant hospital and appellant doctor the respondent filed the complaint against them in the District Forum for recovery of Rs.4,.90,000/- on account of physical deformity, physical pain and financial loss, loss of earning etc. Compensation, interest and costs were also prayed.
10. The appellant hospital and the appellant doctor filed the joint written statement. It was denied if the respondent was assisting his father Ranjit Singh in the cultivation of his land. Rather the respondent was working at Dev Electrical Works, Raikot which was at a distance of half kilometer from the appellant hospital. It was admitted that at about 4.30 P.M. on 12.3.1998 the respondent had met with an accident with generator which resulted into serious injury of right lower leg causing extensive crush injury of right calf muscles damaging major blood vessels permanently.
First Appeal No.964 of 1999. 5
12. It was denied if the respondent was brought immediately to the appellant hospital. In fact the respondent was brought at 5.30 P.M. and there was delay in bringing the respondent to the appellant hospital. The respondent was in a very bad condition and he had lost a great deal of blood before he reached the appellant hospital. The injury was caused to the respondent by a pointed rotating object of an engine generator set which by its drilling motion at a very high speed crushed the right calf muscles into bits of several small pieces. This crush injury was severe enough to damage the major blood vessels permanently resulting in complete cessation of blood flow to the distal part of right leg below the knee leading to gangrene.
13. It was further pleaded that the respondent was in a state of circulatory collapse and shock. When he had come to the appellant Hospital, he was profusely bleeding. His pulse was not palpable and his blood pressure was not recordable. His heart sound was feeble, respiration laboured and level of consciousness as delirious. On feel, he had clammy skin. It was a large lacerated crush injury in the posterior aspect of leg below right knee. Wound size was 6" X 6" and it was bone deep. The wound was profusely bleeding. The crush injury involved a large part of right calf muscles and large part of muscle mass was lost due to the injury. There were small bits of muscle tissue found with the clothes (Payjama). There was extensive destruction of muscle tissue and blood vessels. Peripheral pulses distal to the wound were not present. Right femoral pulse was present.
14. The appellant doctor took resuscitative measures to revive the patient from the state of circulatory collapse and shock. Few stitches were given to approximate the wound to prevent further blood loss.
15. It was denied if the appellant doctor had told the respondent or his attendants that the injury was minor or that he would take care of the same or if he had administered oral medicines or if the respondent had paid a sum of Rs.3,000/- to the appellant doctor as medical fee. It was pleaded that no fee was paid by the First Appeal No.964 of 1999. 6 respondent or by his attendants to the appellant hospital or to the appellant doctor. It was not denied that the respondent bought medicines for the value of Rs.8,000/-.
16. It was pleaded that as a matter of fact the appellant doctor had explained to the respondent and his attendants the prognosis and condition of the leg and type of injury resulting in the loss of distal pulsation due to cessation of the blood flow to the lower part of the right leg. They were also told by the appellant doctor to take the patient to DMC, Ludhiana or to any other specialized hospital but the respondent and his attendants refused to take the respondent in that condition and requested the appellant doctor to continue with the treatment in the appellant hospital. On the request of the respondent and his attendants, the respondent was admitted and he was given the medicines.
17. It was further pleaded that the story pleaded by the respondent was based on twisted facts. It was denied if the appellant doctor had told the respondent that there was nothing to be worried or that the pain would subside gradually. Rather the appellant doctor had told to the respondent about the seriousness of his disease and that the chances of recovery were bleak. On the same day, the pulse of the respondent was 130 per minute but it was feeble and blood pressure was 80/60 at 8.30 P.M. Then the respondent was given medical treatment in the form of injections/medicines. The blood pressure and pulse rate of the respondent had become better.
18. It was further pleaded that on 13.3.1998 at about 3.00 A.M. the pulse rate and blood pressure had improved but the distal pulsation of the right leg of the respondent was not palpable. All distal pulsation of the right leg below the knee was absent. The respondent was duly informed about the impending gangrene of the right leg and the need of the amputation of the right leg was advised. The respondent was also advised that he should be shifted to DMC, Ludhiana or to CMC, Ludhiana but the respondent and his attendants refused to do so. The medical treatment in the form of injections and medicines was given to the respondent on 13.3.1998.
First Appeal No.964 of 1999. 7
19. It was further pleaded that the respondent was examined by Dr. Bhupinder Singh, M.S. on 13.3.1998 at 9.30 A.M. He had found the skin colour of the right lower leg of the respondent changing to bluish and swelling of the leg. Distal pulsation around the ankle was missing. He advised immediate orthopedic consultation. It was done and the respondent was got examined from Dr. B.S. Hunjan M.S. (Ortho) who also advised the amputation of the leg. Relatives of the respondent were called and he was asked to give his consent. Proper medicines in the form of injections etc. were being given. Dressing was done at 12.30 P.M. There was slight oozing of blood. The skin of the leg turned bluish and the leg was kept in a raised position. The respondent and his father were asked to give consent for amputation but they promised to give the same after consulting the members of their family.
20. It was denied if the appellant doctor was a compounder and that the appellant doctor did not answer to the queries of the respondent to tell him about the status of wound as alleged. It was further pleaded that on 14.3.1998 the blood pressure of the respondent was normal. He was given proper treatment. Dressing was done. There was not active bleeding. There was bluish discolouration of the right lower leg. Gangrene had already developed below the knee. Distal pulses were absent. Sensation had impaired. Active movement was not present. Blood transfusion of one unit was administered at 11.00 A.M. Proper injections and proper medicines were given. X-ray examination was already conducted on 13.3.1998. Proper treatment was being given to the respondent. It was denied if the appellants had ever assured the respondent that there was no anxiety or that the wound would recover in a week.
21. It was further pleaded that on 15.3.1998 again injections were given so also the medicines. The blood pressure of the respondent was normal. The wound condition was as before with discharge. The distal pulsation was absent in the right leg. There was bluish discolouration of the skin of the right lower leg which had become gangrene. Consent for amputation was asked but it was not given. First Appeal No.964 of 1999. 8
22. It was further pleaded that on 16.3.1998 almost the same treatment was given to the respondent plus addition of other medicines. Dressing was done at 8.00 A.M. and at 8.00 P.M. There was some discharge from the wound. Smell was also there. Peripheral pulses distal to the right knee were absent. Skin developed bluish discolouration. Right lower leg became oedematous and gangrenous. Again consent for amputation was called but it was not given. The respondent was duly informed of the risks of the delay. The condition of the injury, the condition of the patient, the treatment and prognosis were duly explained to the respondent. The respondent and his attendants delayed the consent for amputation. There was no need of any more tests or for further diagnosis as alleged by the respondent.
23. It was denied if on 19.3.1998 appellant No.2 had told to the father of the respondent that the wound was not responding to the treatment or that the gangrene had developed and that the only remedy was to amputate the leg. The appellants had already informed the respondent and his attendants that due to serious crush injury on the calf muscles and extensive destruction of muscle tissue and vessels, the only alternative was the amputation of the leg as the gangrene was to appear. The story has been falsely made out by the respondent about the medical negligence on the part of the appellants.
24. It was further pleaded that the respondent and his attendants had insisted for the treatment of the respondent in the appellant hospital where he was brought in a very serious condition hanging between life and death. He was given best medication in those circumstances and the life of the respondent was saved. Instead of agreeing to the amputation of the leg of the respondent, the attendants of the respondent had requested the appellant doctor for the discharge of the respondent. As such the respondent was discharged on 19.3.1998 along with the discharge slip. All the reports of medical tests and x-ray films were given to the respondent and his attendants. The damage caused to the calf muscles and to the blood vessels was irreparable. The severity of the injury and loss of blood supply First Appeal No.964 of 1999. 9 to the distal part of the right leg and damage to the blood vessels and calf muscles resulted to the cessation of blood circulation below the right knee joint which ultimately led to gangrene. The damage was irreversible.
25. It was denied if there was any medical negligence on the part of the appellant hospital or appellant doctor or if the respondent was entitled to any compensation. Dismissal of the complaint was prayed.
26. The Oriental Insurance Company Limited respondent No.3 also filed the written reply. It was pleaded that respondent No.3 had issued professional indemnity insurance policy in favour of DMC, Ludhiana respondent No.4. Since no medical negligence is alleged against respondent No.4, therefore, respondent No.3 is not liable to pay any amount of compensation.
27. Respondent No.4 also filed the written reply. It was pleaded that the respondent was admitted in the DMC, Ludhiana on 19.3.1998 with the following history:-
"Alleged history of injury on his right lower limb occurred when his pajama got entangled in motor of engine on 12.3.98 around 4.00 P.M. History of open and bleeding wound on right leg just below the knee--
-Unable to bear weight on right leg
-History of Vomiting on 18.3.96
-No history of unconsciousness
-No/HO-ENT bleed
-No/HO-conversion at the time of accident
-Later patient went into a state of shock and was revived at Gurkirat Hospital, Raikot where he was also managed in the form of antibiotic and had planned imputation on the patient's and attendants' request. He was then brought to Dayanand Medical College & Hospital, Ludhiana for further management.
-Not a known case of TB/Hypertension/diabetes."First Appeal No.964 of 1999. 10
28. It was denied if the doctors of the DMC, Ludhiana had told the respondent or his attendants that they had delayed in bringing the respondent to their hospital or if they had told him that the treatment given to the respondent was inadvisable or ineffective or if it was not proper or if the appellant doctor was negligent or that he had not conducted the necessary medical tests/scanning etc. immediately after his admission in the appellant Hospital. It was denied if the wound should not be sutured/stitched without repairing the damage inside the wound. It was also denied if they had told the respondent that proper care was not taken in the appellant Hospital or that the proper treatment was not given to him by the appellant doctor or if the proper treatment if given would have saved this catastrophe.
29. It was further pleaded that every effort was made to save the leg of the respondent but when it was found that it could not be saved then the leg was amputated to save the life of the respondent. The attendants of the respondent were asked to arrange for the bottles of blood which were required. Only the necessary expenses have been charged from the respondent and his attendants and the amount of expenditure has been exaggerated by the respondent.
30. It was further pleaded that the leg of the respondent was amputated, just above the knee. The respondent was having temperature on 20.3.1998 as per the history record. It was denied if it was a case of typhoid due to wrong administration of the wound by the appellants.
31. It was denied if the respondent was unable to look after himself or if he was unable to do his day to day recourse. It was also denied if he had become completely disabled or a handicapped person or if he was unable to do any cultivation or if he cannot perform his vocation as cultivator. It was also denied if disability was 80% or if he had become a constant burden on his parents. He can pursue his activities with the help of an artificial limb. It was denied if there was any medical negligence on the part of respondent No.4 or if the respondent was entitled to any compensation. Dismissal of the complaint was prayed. First Appeal No.964 of 1999. 11
32. The respondent proved documents Ex.P-1 to Ex.P38. He also filed the affidavit of Avtar Singh son of Jagir Singh, affidavit of Nardev Singh son of Nand Singh and the affidavit of Nahar Singh, grandfather of the respondent and the affidavit of Ranjit Singh father of the respondent.
33. On the other hand, the appellant doctor filed his affidavit dated 21.4.1999 and the affidavits of Dr. Bhupinder Singh dated 21.4.1999, of Dr. Balwant Singh Hunjan dated 21.4.1999 and of Gurcharan Singh dated 17.4.1999. Dr. Manbir Singh appellant also tendered himself for cross-examination. He was cross- examined at length. Dr. Bhupinder Singh, Dr. Balwant Singh Hunjan and Gurcharan Singh also tendered themselves for cross-examination and were cross- examined at length. Dr. S.C. Ahula, Principal of DMC and Hospital, Ludhiana also filed his affidavit.
34. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint qua the appellant hospital and appellant doctor vide impugned order dated 11.8.1999 and directed them to make the payment of Rs.60,000/- as compensation to the respondent. However it was held that respondents No.3 and 4 have been impleaded without any basis. The complaint qua them was dismissed with costs of Rs.2,000/- each.
35. The appellants filed the appeal (First Appeal No.964 of 1999) for setting aside the impugned order dated 11.8.1999.
36. Manjinder Singh respondent also filed appeal (First Appeal No.1000 of 1999) seeking enhancement of the amount of compensation.
37. Both these appeals were disposed of by common order dated 30.9.2002. The appeal filed by the appellant hospital and appellant doctor (First Appeal No.964 of 1999) was dismissed by this Commission with costs of Rs.1,000/-. The appeal filed by the respondent (First Appeal No.1000 of 1999) was accepted; the amount of compensation was enhanced to Rs.4,90,000/- and the appellants were directed to pay this amount to the respondent.
First Appeal No.964 of 1999. 12
38. The appellants filed revision petition No.1282 of 2003 (Gurkeerat Hospital and another vs. Manjinder Singh) in the Hon'ble National against the order dated 30.9.2002. It was disposed of by the Hon'ble National Commission vide order dated 4.5.2009. The counsel for both the parties had agreed that the case be remitted back to the State Commission with a direction to refer the case to the Board of doctors to obtain the expert opinion on the subject. Accordingly the judgment dated 30.9.2002 passed in First Appeal No.964 of 1999 and First Appeal No.1000 of 1999 was set aside and the matter was remitted to this Commission for referring the matter to the PGI, Chandigarh for seeking the medical expert opinion from the Board of doctors.
39. In compliance with the judgment of the Hon'ble National Commission, this Commission made reference to the Director, PGI, Chandigarh for seeking expert opinion of the Board of doctors about the medical negligence attributed to the appellants. The Director, PGI, Chandigarh constituted a Board of doctors vide order dated 26.8.2009. The Medical Board examined the matter and reported as under:-
"The board of doctors is of the opinion that:
1. As per the record supplied the patient had crush injury right lower leg along with vascular injury. From the record it looks that limb was not salvasable and amputation of the affected limb was eminent.
2. The party has claimed that the patient was not given proper treatment at the Gurkeerat Hospital, whereas from the claim of the treating doctor as listed in the documents supplied; it appears that the patient received proper treatment at the hospital.
3. Whether the seriousness of the condition of the patient, proposed treatment, possible final outcome and the urgency of the treatment was properly explained to the patient or his relatives by the treating doctor cannot be commented upon as the same is not reflected in the documents supplied.First Appeal No.964 of 1999. 13
4. Whether proper consent of the patient/kin/relatives to continue treatment in the said hospital and not shifting the patient to DMC despite worsening condition of the patient, was taken or not cannot be commented upon as it is not available in the documents supplied.
5. The negligence of the treating doctors cannot be commented upon as a. It appears from the documents that the treating doctors did not advice wrong treatment to the patient.
b. No document has been provided to confirm whether the patient was explained properly about the nature of the illness, treatment and final outcome and whether the consent to continue the treatment was obtained or not.
CONCLUSION:
In view of the above, the Medical Board cannot pin point whether there has been medical negligence in this case or not.
Sd/- Sd/- Sd/-
(Dr. Rajinder Singh) (Dr. Vijay Goni) (Dr. R.K. Sharma)
Chairman Member Member Secretary"
40. The medical expert opinion was received from the Board of doctors which has been reproduced above. The respondent had filed an application for permission to cross-examine Dr. Rajinder Singh, Head, Department of General Surgery. That application has been dismissed by this Commission vide separate order of even date.
41. The first submission of the learned counsel for the respondent was that the expert opinion is just advisory in nature and is not binding on the Court. In this context reference was made to the judgment of the Hon'ble Supreme Court reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) and the subsequent judgment reported as "RAMESH CHANDRA AGRAWAL vs. REGENCY HOSPITAL LTD. & ORS."
IV(2009) CPJ 27 (SC).
First Appeal No.964 of 1999. 14
42. It was held by the Hon'ble Supreme Court in Ramesh Chandra Agrawal's case (supra) as under:-
"15. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case.
The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
43. It is, therefore, held that the expert opinion given by the Medical Board is advisory in nature.
44. The next submission of the learned counsel for the respondent was that the medical literature was not available to the Board of doctors. Therefore the report of the Board of doctors cannot be made the basis for rejecting the claim of the respondent. Reference was also made to the medical literature Annexure A-1 submitted in this Commission in order to explain the definition of 'crush injury', nature of such injury and the kind of medical treatment which was advisable. It was, therefore, submitted that since the medical literature was not taken into consideration, therefore, the report of the Board of doctors needs to be rejected and the appeal of the appellants deserves to be dismissed.
45. This submission has been considered.
First Appeal No.964 of 1999. 15
46. It has no merits. It cannot be presumed that the doctors who constituted the medical board were not aware about the medical literature on the subject. They were not only the expert doctors of the subject but they had a lot of experience running into number of years and they have examined such like patients in thousands. It is, therefore, held that the report of the Board of doctors cannot be rejected only on the ground that the medical literature has not been referred by them in their report dated 26.9.2009 reproduced above.
47. It was then submitted by the learned counsel for the respondent that the bed head ticket has been prepared at one go by the appellants. It was not prepared on day to day basis. It was submitted that the bed head ticked has been prepared separately on a sheet and not in the routine registers nor the record of that period consisting of other patients has been produced. Hence it was submitted that the bed head ticket produced by the appellants is not a valid piece of evidence and deserves its rejection.
48. On the other hand, the learned counsel for the appellants submitted that since it is a matter of about 10 years old, therefore, the other record has not been retained. This file was retained only for the reason that a court case was pending.
49. These submissions have been considered.
50. The appellant doctor was asked to produce the original bed head ticket of the respondent. It was so produced by him, photocopy of which was already placed on file. The respondent remained admitted in the appellant Hospital from 12.3.1998 at 5.30 P.M. to 19.3.1998 till at 8.00 P.M. when he was discharged for being taken to DMC, Ludhiana.
51. The medical record consisting of bed head ticket of the respondent produced by the learned counsel for the appellants has been perused. It appears that it has been prepared at the one and the same time. No doubt there are entries allegedly made by Dr. Bhupinder Singh and by Dr. B.S. Hunjan but the overall perusal of this document makes it undependable.
First Appeal No.964 of 1999. 16
52. It was submitted by the learned counsel for the respondent that x-ray examination of the injury was advised on 13.3.1998 as per bed head ticket produced by the appellants but the result of the x-ray examination is nowhere mentioned.
53. On the other hand, the learned counsel for the appellants submitted that the x-ray examination was conducted and the x-ray film was given to the respondent and his attendants on 19.3.1998 when he was discharged from the appellant Hospital.
54. It may be so but the fact remains that in the bed head ticket the result of the x-ray examination is nowhere mentioned or discussed.
55. Even as per the version of the appellants, the respondent had suffered a serious injury on right lower leg causing extensive crush injury of right calf muscles damaging major blood vessels permanently resulting in complete cessation of blood flow to the distal part of right leg below the knee leading to gangrene. All distal pulsation of the right leg below the knee was absent. The appellants have also taken the plea that the respondent was duly informed about the impending gangrene of the right leg and the amputation of the right leg was advised.
56. If the condition of the respondent was so serious and critical then it was not advisable for the appellants to keep the respondent in their hospital and should have referred to him in a more specialized Hospital like DMC, Ludhiana or CMC, Ludhiana or PGI, Chandigarh. The appellants did not have any surgeon or orthopedic surgeon.
57. According to the version of the appellants they had requested Dr. Bhupinder Singh, M.S. from Ludhiana to examine the respondent on 13.3.1998 who also gave a dismal picture of the injury suffered by the respondent and advised to take the opinion from Orthopedic Surgeon. Orthopedic Surgeon Dr. B.S. Hunjan was allegedly called from Ludhiana who had also reported that the colour of the leg was bluish and on feel it was cold and there was no peripheral First Appeal No.964 of 1999. 17 pulsation present. Even the appellant doctor had advised amputation of the leg on 13.3.1998 itself. When the appellant hospital and appellant doctor did not have sufficient arrangement at their own level and if they knew that the condition of the respondent could go from bad to worse, therefore, there was no reason for them to retain the respondent any longer in the appellant hospital.
56. The appellant doctor had taken the plea in the written statement that he had asked the respondent and his attendants to shift the respondent to a more specialized hospital but he and his attendants refused to do so and wanted the treatment to be carried on in the appellant hospital.
57. This version of the appellants appears to be a made up story. No such question was put by the appellants to the respondent or to his attendants in writing nor the consent of the respondent or his attendants was obtained to the effect that they did not want to shift the respondent to a specialized hospital like DMC, Ludhiana, CMC, Ludhiana or PGI, Chandigarh or they wanted to have the medical treatment in the appellant Hospital itself.
58. The appellant hospital has not placed on the file any document to show if any such question was put to the respondent or to his attendants or if they had given a written consent not to shift the respondent to a more specialized hospital.
59. No doubt the Board of doctors has reported in their report dated 26.9.2009 that from the record it looked that the limb was salvageable and amputation of the affected limb was imminent and that the proper treatment was given by the appellant hospital yet they have not commented on the plea of the appellants that seriousness of the condition of the respondent or the proposed treatment or the possible final outcome or the urgency of the treatment was properly explained by the appellant doctor to the respondent or to his relatives because no such situation was reflected by the documents furnished by the appellants.
60. The Board of doctors had also reported that they were unable to comment whether the proper consent of the patient i.e. the respondent or of his relatives or of his attendants to continue the treatment in the appellant hospital and for not First Appeal No.964 of 1999. 18 shifting the respondent to DMC, Ludhiana despite worsening condition of the respondent was taken or not as no such record was available.
61. Since there is no record if the appellants had taken the written consent of the respondent or his attendants to continue with the treatment in the appellant hospital or for not being shifted to a more specialized hospital, therefore, the plea of the appellants cannot be accepted that the appellants advised the respondent or his relatives/attendants that the respondent should be shifted to DMC, Ludhiana or CMC, Ludhiana or PGI, Chandigarh or that the respondent and his attendants had refused to do so or they had insisted to continue with the medical treatment in the appellant hospital. This, therefore, amounted to a clear-cut medical negligence on the part of the appellants as they failed to give proper medical advice to the respondent.
62. It may be that keeping in view the nature of serious injury the amputation may have been imminent but earlier to that it was required to be amputated below the knee and the condition worsened so much that the leg was amputated above the knee. It may not have mattered much but the psychological effect on the mind of the victim is substantial that the leg could have been saved had he got the proper and more specialized medical treatment in time in a big medical institution like DMC, Ludhiana, CMC, Ludhiana or PGI, Chandigarh.
63. The Board of doctors has also specifically reported that the negligence of the treating doctor cannot be commented upon. It may not be that the appellant doctor gave the wrong medical treatment but the medical treatment given by him could not be equated with the medical treatment which the respondent might have obtained from the specialized doctor or from the specialized hospital.
64. Therefore it is held that appellant hospital and appellant doctor have committed medical negligence in not referring the respondent to a more specialized hospital for getting more specialized medical treatment and retaining him in his hospital for about a week without his consent by which his condition worsened.
First Appeal No.964 of 1999. 19
65. It may be that the respondent is not totally handicapped and could run his profession but his life has certainly become pitiable and because of his incapacity to move about like a normal person has run off the track. He has become dependant. He is unable to face the social society. He has got the inferiority complex and he has become handicapped.
66. The compensation will not restore him to the normal position but it would be a consolation and will be a source of help to him to run his life. In the circumstances of this case the compensation amount is assessed to be Rs.2,00,000/-.
67. Therefore this appeal (First Appeal No.964 of 1999) filed by the appellants is dismissed.
FIRST APPEAL NO.1000 OF 1999:
68. Keeping in view the discussion held above, this appeal is accepted and the amount of compensation payable by the respondents in First Appeal No.1000 of 1999 is increased from Rs.60,000/- to Rs.2,00,000/-. This amount should be paid by the respondents to the appellant within a period of two months after the receipt of a copy of this order failing which they will be liable to pay this amount of Rs.2,00,000/- with interest at the rate of 7.5% per annum from today till the date of payment. The respondents (First Appeal No.1000 of 1999) shall also pay a sum of Rs.10,000/- to the appellant as costs of litigation.
69. The arguments in these cases were heard on 13.11.2009 and the orders were reserved. Now the orders be communicated to the parties.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(LT. COL. DARSHAN SINGH [RETD.])
MEMBER
November 25, 2009 (PIARE LAL GARG)
Bansal MEMBER
First Appeal No.964 of 1999. 20