State Consumer Disputes Redressal Commission
Bakshi Ortho & Maternity Centre vs Sukhpal Singh Alias Pal Singh on 3 October, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1136 of 2006
Date of institution : 04.09.2006
Date of decision : 03.10.2011
1. Bakshi Ortho & Maternity Centre, Bibiwala Road, Bathinda,
through its Proprietor Dr.H.S.Bakshi..
2. Dr.H.S.Bakshi, M.B.B.S., M.S. (Ortho), Proprietor of Bakshi Ortho &
Maternity Centre, Bibiwala Road, Bathinda.
3. New India Assurance Co.Ltd., Red Cross Shopping Complex, The
Mall, Bathinda, through its Divisional Manager.
...Appellants
Versus
Sukhpal Singh alias Pal Singh son of Sh.Chand Singh, son of Sh.Jaggar
Singh, resident of Village Bhagwangarh alias Bhukhian Wali, District
Bathinda.
...Respondent
First Appeal against the order dated
30.5.2006 passed by the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Shri Baldev Singh Sekhon, Member Present:-
For the appellants : Sh.G.L.Bajaj, Advocate.
For the respondent : None.
BALDEV SINGH SEKHON, MEMBER
This appeal is against the order dated 30.5.2006 passed by the District Consumer Forum, Bathinda, vide which the complaint of the respondent was partly accepted.
2. Brief facts of the case are that the respondent suffered fracture of his left leg in the month of October, 2004 and he visited hospital of appellant No.1 for necessary medical treatment where appellant No.2 checked him and informed that he had to undergo operation of his leg as indoor patient and the doctor assured the respondent that he will be medically cured by him and asked the respondent to deposit Rs.81,000/- towards expenses of operation and other medicines. The respondent First Appeal No.1136 of 2006 2 arranged this amount and deposited with appellant No.2 but the respondent was not issued any receipt thereof.
3. It was pleaded that the respondent was admitted on 2.10.2004 and was operated upon for his leg and steel rod was inserted. The respondent was discharged from the hospital on 6.10.2004. Thereafter, the respondent visited appellant no.2 on 15.10.2004, when his stitches were removed. It was further pleaded that the respondent complied with the instructions of appellant No.2 and took proper rest for about two months for healing up the wound and thereafter, when he resumed his normal pursuit, he felt pain in his leg as steel rod inserted in his leg, being of inferior quality, got twisted. Thereafter, the respondent approached appellant No.2 who checked and informed him that his operation had failed and he was required to be operated upon again for which he would have to incur expenditure on the operation and other medicines as before. The respondent requested the appellant to operate him free of costs as he was a poor person and had already incurred heavy expenditure on his operation, but he refused to attend to him. Thereafter, he met appellant No.2 number of times, everytime he put off the matter on one pretext or the other. In the last week of January, 2006 appellant No.2 flatly refused to do anything in the matter without payment of fee as before.
4. It was further pleaded that thereafter the respondent visited the Civil Hospital, Bathinda and the attending physician after checking informed him that he was to be operated for his leg again as previous operation was unsuccessful. The respondent further spent more than Rs.90,000/- on his medical treatment by borrowing the amount from different persons. The respondent filed complaint before the District Forum with the prayer that the appellants be directed to pay Rs.4,50,000/- as compensation and Rs.5000/- towards litigation expenses.
5. Upon notice, appellants No.1 & 2 filed the joint written statement, in which it was pleaded that respondent approached the appellants on First Appeal No.1136 of 2006 3 7.10.2004 with a fracture in the left leg. After examining, it was diagnosed that he had fractured left tibia and was accordingly advised surgery for the same. It was further pleaded that the respondent was informed regarding the known expected complications which could arise out of the said surgery. He was also informed that surgery would be done by putting the interlocking nail, which was one of the most acceptable and commonly done technologies in these kind of cases. The respondent understood all the expected risks involved and gave his free consent. After carrying out all the investigations as per norms, the respondent was taken for surgery where all preoperative measures were taken and surgery was performed by way of closed interlocking nailing.
6. It was further pleaded that the patient remained in the hospital upto 10.10.2004 when he was discharged. At the time of discharge, the X-ray was found satisfactory. It was also pleaded that patient was charged Rs.10,000/- for the treatment in all, for which appropriate receipt was issued to him. The respondent was asked to come to OPD on 13.10.2004 for follow up / check up but instead he came on 15.10.2004 when his stitches were removed. He was advised rest and was asked to avoid travelling and bearing unprotected weight on the leg. He was also advised to come for review / re-checking after six weeks. It was further pleaded that the respondent did not turn up for any follow up treatment, therefore, the respondent could not blame the appellants for the same. Thereafter, the respondent visited appellant No.2 in June, 2005 with a complaint of pain in operated leg. He was examined and it was found to be a case of non union of fractured Tibia with bent nail, which was a result of premature unprotected weight bearing on the fractured leg.
7. The appellants advised him for re-operation with bone grafting which again was treatment of choice in such like cases. But the respondent did not approach the appellants and, instead, moved an application before Assistant District Attorney (Legal Aid) Bathinda with the First Appeal No.1136 of 2006 4 false complaint against the appellants. It was, however, admitted that both the parties were summoned on 5.7.2005 when the case was heard in their presence. Even though appellant No.2 was not at fault but just to help the respondent, he offered to re-operate the respondent free of costs. But the respondent did not agree to the same. Appellant No.2 even offered to get the respondent re-operated from some other doctor at Bathinda at his own expenses, but the respondent refused again for the reasons best known to him.
8. It was also pleaded that appellant No.2 was a fully qualified doctor in his field and had to his credit numerous successful surgeries and treatment and had attended various seminars in the field of his expertise and had been updating himself with the latest technology in the medical science. Denying any negligence or deficiency in service on his part, appellant No.2 prayed that false and frivolous complaint, which was filed with an intention to extort money, be dismissed with costs.
9. Appellant No.3 filed separate reply pleading that there was no negligence in providing treatment by appellant No.2. It was admitted that appellant No.2 had obtained doctor's Indemnity Policy for Rs.10,00,000/-.
10. Parties led evidence by way of affidavits and documents.
11. The learned District Forum after going through the pleadings and evidence on record, partly accepted the complaint of the respondent with the direction that appellants should pay Rs.50,000/- to the respondent as compensation within 30 days, failing which this amount will carry interest at the rate of 12% per annum till payment.
12. Hence the appeal.
13. Learned counsel for the appellants submitted that the respondent had failed to prove any specific negligence on the part of the appellants and no evidence had been led to this effect, and therefore, submitted that appeal be accepted.
14. Submissions have been considered and record has been perused. First Appeal No.1136 of 2006 5
15. The admitted facts of the case are that the respondent suffered a fracture in his left leg in the month of October 2004 and he visited the hospital of appellant no.2 where he was operated upon by way of providing interlocking nail to reunite the broken tibia of left leg. After the discharge from hospital, the respondent visited again on 15.10.2004, when his stitches were removed. However, the actual date of admission / date of operation / discharge are disputed. The respondent has alleged that he was admitted on 2.10.2004 and discharged on 6.10.2004, whereas the appellants contended that he was actually admitted on 7.10.2004 and discharged on 10.10.2004. The respondent has not produced any evidence to support his contention. However, the appellants have placed on record the bed head ticket (Ex.R4). The perusal of this document reveals that there is cutting on the date of admission which had been changed from 6.10.2004 to 7.10.2004. Similarly the date of consent to operate, obtained from Sh.Chand Singh, father of the respondent before undertaking the operation, is also over written which seems to have changed from 18.10.2004 to 8.10.2004.
16. The appellants have contended that the treatment given to the respondent was intramedullary Tibia nailing which was standard procedure for the Tibial shaft fracture. To support their contention, the appellants have placed on record Atlas of Orthopaedic Surgey: A multimedia reference by Dr. Keeneth J.Koval, M.D. and Dr. Joseph D.Zuckerman, M.D. as Ex.R10. This contention is further supported by affidavit of Dr.Vijay Mittal Ex.R2, who had been working as Orthopaedic Surgeon in Civil Hospital Bathinda, in which he deposed that interlocking nailing was the standard treatment for fractures of tibial shafting. Similar affidavit of Dr. M.S.Deol, the working orthopaedic surgeon in Civil Hospital, Bathinda has been tendered into evidence in which he had opined that the fractures of lower 1/3rd tibia can take up 3 to 4 months for sound union and that complication of non unions with implant failure can First Appeal No.1136 of 2006 6 arise if the patient put unprotected weight on the operated limb before sound union of the fracture had occurred. The appellants have also placed on record number of degrees and certificates to support his competence.
17. No doubt, it is proved that appellant No.2 was a competent orthopaedic surgeon. The procedure undertaken by him was also standard treatment for fracture of tibial saft, but only question for consideration before us is that whether he had actually performed the operation without negligence or whether interlocking nail used by him was of inferior quality as alleged by the respondent. It is an admitted fact that the respondent approached the Assistant District Attroney (Legal) Bathinda against appellant No.2 and the ADA (Legal aid) summoned both the parties for counselling in his office on 5.7.2005. Even though no reconciliation could be achieved, the proceedings of the ADA legal have been tendered into evidence as Ex.C9. Perusal of this document clearly reveals that appellant No.2 was willing to rehabilitate respondent through further treatment free of costs along with some cash compensation to the tune of Rs.2000/- and further when, the respondent did not agree to this proposal and wanted his treatment at some other place, appellant No.2 was even ready to bear the costs at any other hospital. It is not understood when appellant No.2 thought that he was not responsible for the failure of the tibial joint why he offered 'free further treatment' and along with Rs.2000/- as compensation to the respondent. This amounted to acceptance of his negligence on his part probably on account of use of inferior quality of nail as alleged by the respondent.
18. The contention of the appellants that respondent was told about the risks and complications which could arise during the operation has also been falsified because consent to operate was taken after the operation which amounted to deficiency in service.
19. The appellants have contended that at the time of discharge on 10.10.2004, X-ray of right leg AP / LAT views were taken which showed First Appeal No.1136 of 2006 7 the operated joint in good position. This is also suppressed by the Daily treatment and progress report proved as Ex.R-4. Actually the left leg of the respondent, and not the right leg, was operated upon on 7.10.2004. Moreover, the consent to operation was obtained on 18.10.2004 which has been changed to 8.10.2004 in the Ex.R4. These glaring errors and discrepancies in the bed head ticket, consent form, and discharge slips indicate that these documents were fabricated to cover the lapse on the part of appellant No.2 and cannot be relied upon to support the case of the appellants. The respondent has pleaded that quality of the nail used was inferior but the appellants have failed to rebut this allegation. The willingness of appellant No.2 before ADA (legal) on 5.7.2005 to rehabilitate the respondent free of costs and to make payment of Rs.2000/- to him as compensation does not disapprove that the operation failed due to medical negligence on the part of appellant No.2.
20. In view of the above discussion and findings, we are of the view that the appellants were negligent in performing their duties.
21. The issue of awarding compensation to the respondent is to be based on the actual expenditure incurred on the operation and medicines. Even though the respondent has alleged that he spent to Rs.81,000/- for the operation, but the appellants have claimed that only Rs.10,000/- was charged from him. The evidence proved by the respondent, in support of his expenditure, in the form of pronotes, are not reliable. Moreover, the respondent has claimed that he spent more than Rs.90,000/- for his subsequent treatment in Civil Hospital, Bathinda. It is well known fact that the medical expenses in a government hospital are much less than the those in a private hospital and therefore, his claim of spending more than Rs.90,000/- is proved to be exaggerated. Hence the claim of respondent is unreliable. The appellants have admitted that they charged Rs.10,000/- from the respondent which also seems to be on the lower side. First Appeal No.1136 of 2006 8
22. In view of the above discussion, we are of the view that an amount of Rs.50,000/- will compensate the respondent for the actual expenses incurred by him for the operation and medicines during stay in the hospital of the appellants, which is ordered to be paid by appellant No.2 within one month from the receipt of this order. Since appellant No.2 has obtained Doctor's Indemnity policy for Rs.10,00,000/- from appellant No.3, he is at liberty to claim this amount from appellant No.3.
23. Accordingly, the appeal of the appellants, which is devoid of any merit, is dismissed and the impugned order of the learned District Forum is modified to the above extent.
24. The arguments in this case were heard on 20.9.2011 and the order was reserved. Now parties be communicated about the same.
25. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Justice S.N.Aggarwal) President (Mrs.Amarpeet Sharma) Member (Baldev Singh Sekhon) Member October 03, 2011.
Davinder