State Consumer Disputes Redressal Commission
Monika Verma vs Bither Hospital on 12 March, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 778 of 2016
Date of Institution : 10.10.2016
Date of Reserve : 28.02.2018
Date of Decision : 12.03.2018
Mrs. Monika Verma w/o Sh. Sanjeev Verma, resident of 2433,
Ward No. 9, Post Office Road, Sirhind Mandi, District Fatehgarh
Sahib, Punjab - 140406.
....Appellant/Complainant
Versus
1. Bither Hospital, Sirhind, Tehsil and District Fatehgarh Sahib,
Punjab.
2. Dr. Nitin Bither c/o Bither Hospital, Sirhind, Tehsil and
District Fatehgarh Sahib, Punjab.
3. United India Insurance Company Ltd., 42-C,3rd Floor,
Moolchand Commercial Complex, New Delhi - 110024
....Respondents/Ops
First Appeal against the order dated
12.08.2016 of the District Consumer Disputes
Redressal Forum, Fatehgarh Sahib.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh. R.K. Shukla, Advocate with
Mrs. Monika Verma, in person
For respondent No.1&2: Sh. Puneet Sharma, Advocate
For respondent No.3 : Sh. Nitin Gupta, Advocate
First Appeal No. 778 of 2016 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 12.08.2016 passed in consumer complaint No. 09 dated 29.01.2015 by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties (hereinafter referred as Ops) on the averments that Op No. 1 is a hospital being run in the area of Sirhind, District Fatehgarh Sahib whereas Op No. 2 is owner as well as Doctor in Op No. 1. It has been averred in the complaint that before 22.6.2014, complainant was working as a teacher in Private School at Mandi Gobindgarh, District Fatehgarh Sahib and was earning Rs. 27,000/- per month. Before suffering injury of her right knee and right ankle when she fell from the scooter while riding with her husband and she was unable to walk. On 23.6.2014, complainant was taken by husband to Ops, where X- ray was conducted. Op No. 2 was consulted, who was informed the complainant inability in walking and bearing no weight on right foot is due to injury in the right ankle and Op No. 2 found Unstable Bimalleolar Facture of right ankle but Op No. 2 did not diagnose anything in the right knee and stated that pain in knee is due to fracture in the ankle. Accordingly, Op No. 2 suggested surgery for First Appeal No. 778 of 2016 3 the ankle. The complainant was got admitted in Op No. 1 on the same day i.e. 23.6.2014 vide IPD No. 20140623/01, Registration No. 2720 dated 23.6.2014 and surgery was conducted on the same day by Op No. 2 and she was discharged on 25.6.2014 with recommended treatment/follow up. It was also mentioned post OP(operation) X-rays satisfactory. Ops charged Rs. 36,820/- for treatment of the complainant. In the discharge summary, Op No. 2 mentioned Bimalleolar Fracture Dislocation Ankle (Right) instead of Unstable Bimalleolar Fracture of Right Ankle, which shows that Op No. 2 could not diagnose properly the problem/fracture in the ankle. The complainant had been visiting Op No. 2 for dressing and follow up on 28.6.2014, 1.7.2014, 4.7.2014, 8.7.2014, 24.7.2014, 7.8.2014. She also took the medicines as recommended by Op No. 2. Every time complainant was got checked by Op No. 2 but he did not notice/diagnosed the tenderness at the point of fracture. On 24.7.2014, Op No. 2 advised the complainant to put the weight on right foot upto 50% with the help of walker and then after 10 days, she can walk with stick, increasing the partial weight and also advised to wear the ankle shoes and also joined the school on 16.8.2014 with some instructions. As recommended by Op No. 2, complainant started putting minimum weight on her right foot, however, after 10 days, she felt pain in foot and right knee and consulted Op No. 2 on 7.8.2014 with following complaints; i) sever pain in ankle and knee
ii) Tenderness, swelling and redness was still visible iii) Ankle twisted towards right and difficulty in walking straight and iv) First Appeal No. 778 of 2016 4 difficulty in putting the foot down. Op No. 2 conducted the X-ray of ankle and knee and Op No. 2 found the reason of complaint of complainant true that the broken bones were still lying in the same position as before the surgery and were not united due to which the foot moved towards the right side. Instead of admitting his fault, Op No. 2 started blaming the complainant by saying that she should not have come with the stick but complainant told that she was just using walker as per the advice but when she was unable to walk straight with walker then how she be able to walk with the stick. Not satisfied with the consultation of Op No. 2, complainant demanded her X-ray of foot and knee but Op No. 2 smartly kept the ankle x-rays with receipts dated 7.8.2014 and gave only X-rays of knee. Op No. 2 also advised not to bear weight and not advised to climb stairs for joining the school on 16.8.2014. Then the complainant stopped putting weight on her right foot. Op No. 2 without going through the proper medical examination and X-rays, advised to put the weight upto 50% on her right foot, which caused huge pain and harassment to the complainant. After 7.8.2014, complainant decided to take 2nd opinion from another Doctor. She consulted her known Orthopedician at Patiala, who advised complete X-rays and told that X-ray ankle dated 7.8.2014 is not available. The complainant again contacted Op No. 2 and asked the reasons for not giving the X-rays of ankle. Complainant also demanded all her X-rays conducted from first day upto 7.8.2014 but instead of giving X-rays, he started blaming the complainant for negligence, just to save his own skin. On 11.8.2014, she got First Appeal No. 778 of 2016 5 her check up from Shivalik Hospital, Mohali where fresh X-ray was conducted and it was told by Dr. Santosh Aggarwal that earlier surgery was not done well as it was ACL Subluxed Bimalleolar, which means not united even after one month. He further told that screws and wires were not inserted in a right way to join the broken bones and observed as under:-
a) Subluxed Non Union Bimalleolar Fracture
b) A fragment missing
c) While operating by Opposite Party No. 2, the Screws
inserted in the wrong direction and
d) Syndesmotic Screw was not inserted to unite the two
major bones.
Thereafter, husband of the complainant repeatedly demanded complete X-rays from Op No. 2 but he did not give the same or some false excuses of his business. Ultimately, the old age mother-in-law of complainant with one of their neighbourer went to Op No. 1 and sat there from 9 am to 12 pm with words that she will go with the X-rays only. The extent of harassment caused to the complainant and her family is illegal and unethical whereas Op No. 2 had no right to retain her X-rays. Thereafter, the complainant took another opinion from Shivalik Hospital, Mohali where Dr. Santosh Aggarwal told that 20% foot damaged and consulted that either redo the surgery as soon as possible or accept it as it is. Then Saket City Hospital, New Delhi and Sports Injury Centre, Safdarjung Hospital, New Delhi and Artemis Hospital found the tearing of Anterior Cruciate Ligament (ACL Tear) in the right knee First Appeal No. 778 of 2016 6 and non-union of fracture Bimalleolar Right Ankle. This problem was from the day one but due to the medical negligence of Op No. 2, the complainant suffered a lot of pain and harassment in her right knee for more than 7 months. Due to that right knee and foot of the complainant, she was unable to work, otherwise it could lead to permanent disability. Dr. Santosh Aggarwal also opined that for knee, separate knee Arthroscopy Operation is needed. While medical examination of right ankle, non-union of fracture Bimalleolar Right Ankle was found by the Doctors of Saket Hospital. The complainant got her admitted at Saket Hospital on 14.8.2014 and was discharged on 15.8.2014. The surgery was not conducted as insurance claim was not approved by the Insurance Company of the complainant. Then complainant got her checked up from Artemis Hospital, Gurgaon and was admitted there on 29.8.2014 and was discharged on 31.8.2014 after treatment of her ankle. The Artemis gave bone grafting treatment to the complainant and removed the damaged bone/wound and above all one screw called Syndesmotic screw was inserted in two operated bones to keep them united, which was not done by Op No. 2. The Artemis Doctor removed the plate and screw installed by Ops on 23.6.2014. The insulation of plate and screws in the ankle of the complainant was not disclosed to the complainant by Ops. Ops have not given the complete record at the time of discharge. From the discharge summary issued by Ops, it is clear that there was medical negligence on the part of Ops because they diagnosed dislocation of right ankle whereas it was unstable First Appeal No. 778 of 2016 7 fracture of right ankle and further ACL tearing problem in the right knee was not diagnosed. The complainant suffered a sum of Rs. 4,56,247/- on her treatment. She also availed her health insurance benefit by taking insurance claim of Rs. 2,32,000/- from her insurance policy. Alleging medical negligence and deficiency in service on the part of Ops, complainant filed this complaint before the District Forum seeking compensation of Rs. 15,58,247/- alongwith interest @ 9% p.a. as fully detailed in para No. 19 of the complaint, compensation and litigation expenses.
3. Upon notice, both the Ops appeared and filed their written reply by taking preliminary objections that the complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous; there are no specific, scientific and justified allegations with regard to medical negligence and deficiency in service; the complaint was filed with allegations of negligence by claiming exorbitant amount without any basis, just to waste the valuable time and harassment to Op Nos. 1 & 2; no cause of action accrued to the complainant against Ops as there is no negligence or deficiency in service on the part of Ops; complaint is bad for non- joinder of necessary parties for not impleading United India Insurance Co. Ltd. as a party, which issued professional indemnity policy No. 041200/46/13/35/00007857 valid for 6.3.2014 to 5.3.2015 and that Op No. 2 is a well qualified, reputed and respected doctor. In factual matrix, it was stated that complainant visited Op No. 1 vide registration No. 2718 for consultation with self done X-rays of right ankle with an alleged history of a fall. First Appeal No. 778 of 2016 8 Accordingly, she was advised about the injury in the ankle. She refused any treatment including first aid in the form of splintage as facility for cashless treatment was not available. The complainant again presented on 23.6.2014 vide registration No. 2720 at 12.40 a.m. She was thoroughly examined and radiological investigations were done and patient was diagnosed with Bimalleolar Fracture Dislocation of right ankle, which is an unstable ankle injury and counseled for need of surgery. No bone injury was found in the knee. Only soft tissue injury of the knee was provisionally diagnosed. Patient was further counseled that after surgery, protected weight bearing can be allowed for around 6-8 weeks and knee problem if persistent may need an MRI. She was admitted vide IPD No. 20140623/01, registration No. 2720 and surgery was performed. Immediately post operative image was taken, which showed a satisfactory reduction. There are different ways to classify ankle fracture. Bimalleolar fracture dislocation ankle (right) is unstable ankle fracture. These are two ways to classify an injury. The treatment of both these terms is similar and operative and as done by the treating surgeon and is well supported by the medical literature. Ankle injury was not mis-diagnosed. The use of different ways of ankle injury is exhibited by another Doctor, who describe the injury as bimalleolar fracture type B. The patient was called for follow up on 2.7.2014 but the patient did not come present on 1.7.2014 or 2.7.2014. She presented herself on 4.7.2014 vide registration No. 3039. She was again called for follow up on 8.7.2014 but she presented herself on 10.7.2014. In all follow up First Appeal No. 778 of 2016 9 prescription slips, the relevant findings are recorded in good faith. Patient counseling and need to follow up instructions were stressed again and again, which the patient did not follow up. The patient regularly neglected the advice of Ops and tried to self treat. On 24.7.2014, the patient was advised weight bearing up to 50% with the aid of walker whereas the patient was bearing full weight on the affected foot, which was complete carelessness on the part of patient. The videographic evidence clearly show that the patient came to hospital alongwith full weight bearing walking comfortably with the stick and in between not using the stick too. After that the patient lost to follow up and never came back. Op Nos. 1 & 2 have done the things diligently, prudently with utmost care and caution, therefore, no negligence on the part of Op Nos. 1 & 2. In parawise replies, admission of the patient/complainant with the Op Hospital and treatment and its effect as mentioned in the factual matrix were reiterated in parawise reply. It was again reiterated that there was no medical negligence or deficiency in service on the part of Ops. After 7.8.2014, the patient did not report to Op Hospital and took the treatment in various other hospitals, therefore, no medical negligence or deficiency in services on the part of Op Nos. 1 & 2. Complaint is without merit, it be dismissed.
4. Op No. 3 in its reply took the preliminary objections that the complaint is misconceived, groundless, frivolous and vexatious, therefore, not sustainable in the eyes of law; no specific, scientific and justified allegations with regard to medical negligence and deficiency in services have been made in the First Appeal No. 778 of 2016 10 complaint with regard to Op Nos. 1 & 2; the claim made by the complainant is very exorbitant, no cause of action to file the complaint against the Ops and that the complaint is not maintainable against this Op as Op Nos. 1 & 2 have not obtained any indemnity policy from this Op. On merits, the averments in the complaint were denied for want of knowledge pertaining to Op Nos. 1 & 2. It was denied that any professional indemnity policy was taken by Op Nos. 1 & 2 from this Op, therefore, no claim is maintainable against this Op. Complaint is without merit, it be dismissed.
5. Before the District Forum, the parties were allowed to lead their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-1 and documents Exs. C-2 to C-62. On the other hand, Op Nos. 1 & 2 had tendered into evidence affidavit of Dr. Nitin Bither Ex. Op-1, affidavit of Dr. Girish Mohan Bither Ex. Op-2 and documents Exs. Op-3 to Op-35. Op No. 3 tendered in evidence affidavit of Harmail Singh Ex. Op-3/1 and copy of policy Ex. Op-3/2.
6A. After going through the allegations in the complaint, written versions filed by the Ops, evidence and documents brought on the record, the District Forum dismissed the complaint as the complainant failed to prove on the record any medical negligence on the part of Ops.
First Appeal No. 778 of 2016 11
7. Feeling aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record of the District Forum as well as case file.
9. It has been argued by the counsel for the appellant/complainant that the District Forum has failed to appreciate the evidence on the record, in case the Doctor has written poor patient compliance, he did not refer to any redness or swelling. The Doctor himself had advised to come with the walker. In the video footage Ex. O-26, Op Nos. 1 & 2 have only disclose that part which suits them but the learned District Forum did not consider OPD Slip dated 24.7.2012. Ops had recommended for bearing weight upto 50%. The District Forum has failed to consider the MRI done on right knee dated 8.8.2014, the screws and wires were not inserted in the right way to join the broken bones. With regard to the expert medical opinion, in case any expert opinion was required, the District Forum should have referred the matter to some expert before giving the decision and the complainant had to go for 2nd surgery, which clearly establishes the medial negligence on the part of Ops. Therefore, it is clear cut evidence of medical negligence and deficiency in service on the part of Ops. The order passed by the District Forum is liable to be set-aside. First Appeal No. 778 of 2016 12
10. Now we have to examine the case of the complainant in view of these objections raised by the counsel for the appellant/complainant.
11. As per the story put forth by the complainant on 22.6.2014, the complainant received injuries specifically to her right ankle when she was riding on a scooter with her husband. On 23.6.2014, the complainant was taken by her husband with the Ops and X-rays were got conducted by the Ops and Op No. 2 found unstable Bimalleolar Fracture of Right Ankle. Ex. C-1 is the affidavit of the complainant, which is almost as per the averments referred in the complaint. Ex. C-2 is the slip of Op Hospital dated 23.6.2014 wherein it has been referred X-ray of right ankle reveals unstable Bimalleolar fracture of the right ankle. Ex. C-3 is the discharge summary in which in the column of diagnosis, it has been mentioned 'Bimalleolar Fracture Dislocation Ankle (Right)'. In the column of investigation, blood and X-rays in the file. The X- rays of Bither Hospital are Exs. C-56 to C-59 it includes even the post operative X-rays. The photocopy of the same has also been placed on the record as Ex. Op-25 and Op-27. It has been stated that post operatively no problem was seen in the X-ray. In the discharge summary, it has been mentioned post-operative X-rays satisfactory and it was ordered to keep foot and ankle elevated and for review to come upon 28.6.2014. On 28.6.2014, a note was given by the treating Doctor that the patient did not take any anti- biotics and there was non-compliant plastic base on foot with the leaves and dirt and for follow up, she was again referred to appear First Appeal No. 778 of 2016 13 on 2.7.2014. She appeared on 2.7.2014, again it was mentioned by the Doctor poor patient compliance and no redness/no swelling was seen on any part and she was asked to appear on 8.7.2014 and on 8.7.2014 again there was a note by the Doctor, poor patient compliance. It was again mentioned that no redness/swelling and for review, she was asked to appear on 24.7.2014 and was advised to come with a walker. On 24.7.2014 Ex. C-5, again it was referred no swelling, no redness and X-ray right ankle AP and X-ray knee was advised. Firstly taking the case of the ankle, in view of the above findings given by the Doctor on the referred slips, there was no redness/swelling noted by the Doctor when she reported to the Doctor upto 24.7.2014 and there is also remarks given by the Doctor that compliance on the part of patient was very poor. It has been further stated that in CCTV footage of 24.7.2014, she was seen giving full weight by walking with the stick as per the CD footage Ex. Op-26 but counsel for the complainant stated that only selected footage has been referred. In case it was so, it has not been reflected by the counsel for the complainant how it was a selected footage. In case he could refer to any other footage that could be reflected by the counsel for the complainant but it was not so done. Lateron in case any problem appeared in the ankle, it can be due to non-compliance on the part of the patient. It has been stated by the counsel for the complainant that there was no proper diagnose of the injury of the ankle. In the discharge summary, it has been mentioned that Bimalleolar Fracture Dislocation Ankle in the right instead of First Appeal No. 778 of 2016 14 unstable Bimalleolar Fracture of Right Ankle. In the written reply, it has been specifically mentioned that these are two terms by which the same injury can be called. Medically/legally counsel for the complainant has not been able to make out any case how these two terms are two different terms. Sometimes a specific injury can be called by two names that does not mean that there was no such diagnose on the part of the Ops. It is an admitted fact that there was a fracture in the ankle only, then surgery was conducted, plates and screws were fixed. Therefore, we do not see any substance in the allegations of the complainant that the injury was not properly diagnosed by the Ops. In this regard, the counsel for the Ops has referred to another extract of the medical literature 'Predictors of Adverse Events for Ankle Fractures.' It is an Analysis of 6800 Patients and it has been observed in that although the overall rate of adverse events for ankle fractures was low, bimalleolar fractures were associated with 5 times, the odds of developing a complication compared with medial malleolar fractures. In another article, 'Aseptic nonunion by Author Michael D McKeet, Peter E Ochsner' wherein non-compliance is one of the factor and it has been observed as under:-
"2.3 Noncompliance It is the responsibility of the treating orthopedic surgeon to ensure that the postoperative care is compatible with the patient's personality and lifestyle. The patient and surgeon must work in cooperation to assure the outcome. Inappropriate weight bearing, smoking, improper diet and First Appeal No. 778 of 2016 15 other shortcomings in the patient's lifestyle should be addressed or taken into account when management is planned."
He has further referred to the judgment of Gujarat State Consumer Disputes Redressal Commission, Ahmedabad reported in I(2007) CPJ 220 "Minaben Natverlal Darji "Kapadiya" versus Bhargavi M. Gupta(Dr.)". In that it was observed that nothing was put on the record to show that treatment given was incorrect or that the patient was not properly attended. Patient was advised follow up for which she omitted to do and expert evidence also did not indicate any negligence or deficiency on the part of Ops. Accordingly, allegations of lack of post-operative care were not substantiated and the case of medical negligence not proved. He has referred to another judgment of the Hon'ble National Commission reported in II (2008) CPJ 3 (NC) "Anik Kumar Gupta versus Mukesh Jain (Dr.)". In case the Doctor kept the standard of treatment and care given to the complainant found to be more than sufficient and complainant suffered due to his negligence by putting more weight than required on fracture after first surgery and by not taking antibiotics for 2nd surgery, it is not a case of medical negligence on the part of Ops. In the present case, OPD slips clearly show non-compliance on the part of the patient including not taking the anti-biotics, as is clear from Ex. C-3, C-4 and C-5. Therefore, negligence on the part of the patient can be one of the factor for non-union. So far as the fixation of plates and screws, it has been specifically mentioned in the discharge report First Appeal No. 778 of 2016 16 Ex. C-3 that post operative X-rays have been satisfactory and these have been referred above. The objection of the counsel for the appellant/complainant is that there should be syndesmotic screw as has been referred in X-ray Ex. C-62 i.e. Artemis Health Institute, Gurgaon. However, it was argued by the counsel for the Ops as well as the Doctor himself that it is one of the procedure, there can be a different procedure to treat any problem. The counsel for the complainant has not referred to any medical literature that in case of ankle fracture then only syndesmotic screw should be there, otherwise, it may cause the problem of non-union. All the treatment record of the complainant, which he had taken from the other hospitals also does not refer that non- union of the bone was due to any improper screw/nails fixed by Op Doctor. In this regard, the treatment taken by the complainant in other hospitals can be referred. Ex. C-6 is the MRI got conducted from Patiala wherein it has been observed as under:-
"No osteochondral fracture is seen.
Marginal osteophytes + along medial and lateral margin of tibia and femur.
Moderate joint effusion is seen."
Ex. C-7 is the OPD slip of Shivalik Hospital, Mohali. Ex. C-8 is the discharge summary of Saket City Hospital, New Delhi. Ex. C-9 is the OPD slip of Sports Injury Centre. Ex. C-10 is the OPD slip of Artemis Hospital, Gurgaon wherein there is reference of non-union of fracture Bimalleolar Fracture and Ex. C-11 is the discharge summary of Artemis Hospital but in these medical record, there is First Appeal No. 778 of 2016 17 no opinion of any Doctor that non-union of the bones was due to not fixing the syndesmotic screw. In the appeal, some additional documents were tendered by the parties. The counsel for the appellant/complainant has tendered on the record Ex. C-63 i.e. discharge summary of Artemis Health Institute where she was admitted on 6.6.2016 and discharged on 7.6.2016 wherein hospital course has been referred as under:-
"Patient was admitted with above mentioned complaints. She was then investigated and diagnosed as healed right ankle fracture with broken implant in situ for which she underwent implant removal right ankle by Dr. Subhash Jangid on 6.6.2016. Patient also complained of right knee instability for which MRI of the right knee was done on 7th June. The MRI showing ACL tear. She will require ACL reconstruction surgery. Now she is discharged in stable condition."
During that course, implant was removed, therefore, no document suggest that non-union was due to non-fixing of the syndesmotic screw in a proper manner.
12. Counsel for the complainant further stated that it is not necessary for the complainant to lead the expert opinion and the principle of res ipsa loquitur can be taken, in case the things reveal itself. He has supported his arguments with the judgment of the Hon'ble National Commission reported in 2014(3) CLT 247 "Master Abhishek Ahluwalia & others versus Dr. Sanjay Saluja & others". In that case, due to tight application of the First Appeal No. 778 of 2016 18 plaster, blood flow in the veins and arteries of the leg obstructed, which ultimately, developed gangrene. However, the facts of that case cannot be taken as basis for this case. As is referred above, after admission of the patient in the Op Hospital, surgery was conducted and the patient was referred for follow up on few dates. It has been referred in documents Exs. C-2 to C-5 and we have already referred in those documents that there was non- compliance of the instructions of the Doctor by the patient including non-taking of the medicines and putting full weight despite instructions, just to put 50% of the weight and as is clear from those slips upto 24.7.2014, there was no redness/swelling. The counsel for the complainant has stated that on 7.8.2017, the patient had been attended by the Op Hospital and it has been admitted by Op Hospital that X-rays were conducted but those X- rays were supplied to the complainant. But it has been argued by the counsel for the Ops that in case the patient comes in the OPD, OPD slips and documents are immediately given by the patient. In case it was so, the documents were withheld by the complainant. No representation was ever made to the Hospital to hand over those documents, illegally withheld by the Ops. The medical negligence is observed in case Doctor has not done, which is required to be done or what the Doctor has done was not required to be done. The basic principle of medical negligence has been observed in "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical First Appeal No. 778 of 2016 19 negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." Further it was held by the Hon'ble Supreme Court in the judgment of "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 and issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:-
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light First Appeal No. 778 of 2016 20 of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.First Appeal No. 778 of 2016 21
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
However, in the present case when post operatively the operation was all right and there are observations of the Doctor that the patient did not follow the instructions and possibility of non-union in these type of cases is due to known complication of the procedure as per the medical literature referred above, which has not been rebutted by the counsel for the complainant, therefore, First Appeal No. 778 of 2016 22 we are of the opinion that with regard to ankle fracture, the counsel for the complainant has not been able to prove any medical negligence or deficiency in service on the part of Ops.
13. With regard to ACL in the knee, it has been argued by the counsel for the complainant that it was not diagnosed in the beginning and in case there is delay in diagnosing it then it is a case of medical negligence. To support it, he has referred to a judgment of Hon'ble National Commission reported in 2016(1) CLT 118 "Ritu Garg Versus Dr. Vineet Sharma & Another". In that case, the Doctor failed to diagnose the dislocation at the initial stage. For injury to the right elbow, it was observed as a case of medical negligence but ACL is not an injury. Therefore, ACL could not come in the X-ray itself. Therefore, the ratio of this judgment cannot be applied to the case in hand. It was further argued by the counsel for the Ops that when the patient was admitted in the Hospital, the diagnose was only Bimalleolar Fracture Dislocation Ankle and at that time, there was no complaint in right knee. It has been stated by the complainant in the complaint that the Doctor has stated that the pain in the knee is due to fracture of ankle but nothing has come in the discharge summary or in the OPD slips. It is only on 24.7.2014 when some problem about the knee was referred by the patient and its X-ray was recommended. Even if there is ACL, firstly it is to be treated conservatively and in case it does not improve conservatively only then some surgery etc. is opted but after 7.8.2014, the patient did not come to the hospital and he took the treatment from other hospital. Therefore, we have First Appeal No. 778 of 2016 23 to take the record of the other hospital what was the position of ACL in other hospitals. In this regard, a reference can be made to OPD slip of Shivalik Hospital Ex. C-7, ACL knee on the slip has been referred. Then in the discharge summary of Saket City Hospital where the patient remained admitted from 14.8.2014 to 15.8.2014, the diagnose was 'non-union fracture Bimalleolar Right Ankle ACL Tear Right Knee' and Physiotherapy was advised. Therefore, they have referred to the conservative treatment. Then OPD slip Ex. C-9 of Sports Injury Centre, ACL tear in the right knee has also been referred but after that the patient had gone to Artemis Hospital, Gurgaon and their slip is dated 22.8.2014 is Ex. C-10 in which there is the chief complaint is 'Bimalleolar Fracture Right Ankle' and no reference about ACL tear. For surgery to the ankle, the patient remained admitted in that hospital from 29.8.2014 to 31.8.2014 and in that case, the diagnose at the time of discharge is 'non union fracture bimalleolar right' and procedure/surgeries, which has been referred as under:-
"removal of plate and screw lateral and medial malleolus right ankle, open reduction internal fixation with 8 hole recon plate+bone grafting lateral malleolus right, TBW +bone grafting medical malleolus right on 30.8.14 and f/u case of non union fracture bimalleolar right".
Again there is no reference about ACL tear right knee. In the additional evidence, in the hospital course, it has been referred as under:-
First Appeal No. 778 of 2016 24
"Patient was admitted with above mentioned complaints. She was then investigated and diagnosed as healed right ankle fracture with broken implant in situ for which she underwent implant removal right ankle by Dr. Subhash Jangid on 6.6.2016. Patient also complained of right knee instability for which MRI of the right knee was done on 7th June. The MRI showing ACL tear. She will require ACL reconstruction surgery. Now she is discharged in stable condition."
in which it has been referred that she will require ACL reconstruction surgery and in another discharge summary, where she remained admitted in that hospital from 17.6.2016 to 19.6.2016, the patient had undergone right ACL reconstruction done by Dr. Subhash Jangid, therefore, she had gone to ACL reconstruction surgery in 2016. Therefore, immediately no surgery for ACL reconstruction was to be done by Op Hospital. At the time of admission, no complaint with regard to that was pointed out, it was pointed out only on 24.7.2014 and after that she had visited only after one day i.e. 7.8.2014 and OPD record of that day was with the complainant and has not been placed on the record by the complainant what was recommended on that day and after that she did not visit Op Hospital and got the treatment from various other hospitals, therefore, even if there was ACL tear in right knee for which originally conservative treatment was to be given and it was so done by other hospital because ACL reconstruction surgery was done in 2016. In this regard, counsel for the Ops has referred to medical literature that 'Outcomes after ACL reconstruction with focus on older patients : results from The First Appeal No. 778 of 2016 25 Swedish National Anterior Cruciate Ligament Register' wherein it has been observed as under:-
"A patient's ambition to return to pivoting sports is the predominant indication for surgery in the majority of patients, especially in the younger patients. Some patients undergo ACL reconstruction due to difficulties in activities in the daily living setting. The general accepted strategy among Swedish ACL surgeons is delayed ACL reconstruction. This entails at least 3-6 months of physiotherapy from the time of injury followed by a new examination by the surgeon and inventory of the patients' symptoms, upon which a decision is made whether to proceed with surgery or not."
He has referred to another article of "New Zealand ACL Registry Annual Report 2016' wherein Primary ACL Reconstruction, delay to surgery upto 10.0 months. He has referred to another article 'The Scandinavian ACL Registries 2004-2007: baseline epidemiology' in which time to surgery has been referred as 7 to 10 months. Therefore, immediate surgery was not required. During that period, the patient has not been coming to the Ops Hospital, therefore, Op Hospital cannot be held liable for any medical negligence for not undertaking ACL reconstruction surgery at the initial stage during the period, patient was visiting Ops.
14. Otherwise the Doctor is capable Doctor. He has placed on the record number of documents i.e. Ex. Op-4 wherein he had gone for post graduate training in Orthopedics. The certificate was issued by National Board of Examinations. He is master of surgery as per the certificate issued by Baba Farid University of Health Sciences Ex. Op-5. He also completed clinical and research First Appeal No. 778 of 2016 26 fellowship in Shoulder and Elbow Surgery from Guro Hospital, Seoul, Korea. He worked as Senior Resident in Department of Orthopaedics in Govt. Medical College & Hospital, Chandigarh Ex. Op-7 and some other certificates with regard to the course participation has been placed on the record, which shows that the Doctor is qualified Doctor and competent to undertake the surgery conducted by him. In the final analysis, we are of the opinion that the complainant has not been able to make out any case for medical negligence on the part of Op Hospital and Doctor in the case of knee surgery. Lateron there was non-union of the bones on account of negligence/non-compliance on the part of the patient and non-compliance of the procedure for which Ops cannot be held liable, therefore, we are of the opinion that the complaint of the complainant was rightly dismissed by the District Forum.
15. Sequel to the above, we do not see any merit in the appeal and the same is hereby dismissed, with no order as to costs.
16. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN)
PRESIDING JUDICIAL MEMBER
March 12, 2018. (RAJINDER KUMAR GOYAL)
as MEMBER