CC.No.139 of 2006
BETWEEN:

Yaganti Venkateswarlu,

S/o Lingaiah,

R/o Adigoppula village,

Durgi Mandal,

Guntur district. … Complainant

and



Dr. Chadalavada Aravinda Babu, MS (Ortho)

Amulya Nursing Home,

Guntur Road,

Narasaraopet,

Guntur district. …Opposite Party

This complaint coming up before us for hearing on 19.01.2010 in the presence of Sri B. Murali Mohan, advocate for complainant and of Sri P. Kishore, advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R
Per Sri T. Anjaneyulu, President:- This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant claiming compensation of Rs.2,00,000/- from the opposite party on the alleged ground of medical negligence/professional negligence committed by him and to award legal expenses for the same.

The brief facts of the case are as follows: The complainant met with an accident and sustained injury to his left leg on early hours of 05-01-05 at his village, Adigoppula of Narasaraopet. Later he was admitted in the hospital of opposite party for treatment. After examining the complainant, opposite party advised an operation is necessary to the injured left leg. The complainant followed the advice of opposite party and an operation was conducted on the same day. During the time of operation opposite party neglected in treatment as iron rods which were inserted in his left leg not properly fixed with the screws. One of the screw also broken at the time of operation, which was remained in the left leg for several months. The complainant stayed in the hospital of opposite party for about one month and he was discharged on 05-02-05 after collecting sum of Rs.50,000/- towards operation, room rent, medicines etc.

After discharge from the hospital, the complainant suffered heavy pain on the operated portion of his left leg the pain continued for several days. Due to heavy pain the complainant approached Dr. Lakshmana Swamy hospital of Guntur. The complainant underwent several tests as suggested on seeing x-ray film. The complainant surprised and shocked as the screws fixed by the opposite party were broken and fractured bones were not grafted at the time of operation on 05-01-05. The complainant spent nearly 8 months up to September, 2005 with improper treatment of opposite party. The leg has infected due to broken iron rods which were inserted in the left leg. The complainants left leg below knee is also shrunk for want of proper fixation of rod with screws.

The complainant went to Dr. Lakshmana Swamy hospital for better treatment. He was re-operated on the same part of left leg and again iron rod was inserted. Previous iron rod was removed in the month of October, 2005. The complainant spent huge money at Guntur hospital also for correct treatment as per diagnosis. Thus there is deficiency of service on the part of opposite party. He has not given proper treatment inspite of collecting required fee. The complainant was unable to do hard work and lost his future earning capacity. This all happened due to negligence treatment of opposite party.

The complainant is aged about 35 years and having two children aged below 10 years. He was cultivating 6 acres of his own land. He was unable to do any physical work with his lame left leg. The complainant has suffered both mentally, physically and financially due to negligent and improper treatment by the opposite party. Hence, the complaint.

The opposite party has filed his version denying all the allegations made in complaint. It is submitted that complainant approached opposite party with multiple fractures. The complainant was beaten up by naxalites in his village and hiding the same he got admitted in his hospital. On seeing the grievous fractures due to beating with sticks and rifle butts at the knee joint, complainant received multiple injuries and fractures. The complainant was treated with due and proper care. The steel rods were inserted but not iron rods as alleged in the left leg on 05-01-05 and he was discharged from hospital on 05-02-05 in fit condition. The complainant was asked to attend hospital for every week for regular check up. The complainant had never turned up to his hospital except in the month of October, 2005 and asked to issue duplicate bills and blood reports stating that he is applying for Apadhbandhu Scheme of Government of AP since he lost the same that was given at the time of his discharge. Subsequently, complainant got filed the present complaint with false allegations. The opposite party did not receive any notice of the same.

The complainant was operated on 05-01-05 for fracture of his left leg below knee and there was no need of bone grafting as it was a fresh case. IT was done under “C” Arm image intensifier with closed technique and the nail was properly fixed as per the procedure adopted and accepted as proper by a reasonable body of medically skilled in that particular art and as laid down in the text of medicine. Thus there is no deficiency of service on the part of opposite party much less any negligence and carelessness in his treatment. The complaint was advised to take bed rest and not to lift heavy objects or do heavy work since the reunion of bones takes time as there was injury to the knee joint caps due to beating with sticks and butts. The complainant’s silence for a period of more than 8 months after discharge from the hospital proves no bonafides on the part of complainant in making a false complaint. It is an action to gain unlawfully from this opposite party, which is not entitled to do so under the law.

This opposite party further submits that he is highly qualified doctor practicing in Orthopedics at Narasaraopet since last 15 years without a single complaint against him except by this complainant. Reasonable degree of care and skill while performing surgery and subsequent thereto was taken by the opposite party. The complainant has not placed any material to show that this opposite party was negligent either in performing surgery or giving treatment. Therefore, the complainant is not entitled for compensation amount of Rs.2,00,000/- as claimed and it is prayed to dismiss the complaint as the same is baseless and frivolous, with exemplary costs.

Both sides have filed their respective affidavits. On behalf of complainant Exs.A-1 to A-7 are marked. The complainant also examined an Orthopedic surgeon of Sanjivi Orthopedic & Physiotherapy centre, Guntur who attended on the complainant at the time of undergoing second operation on 09-10-05 and got marked the case sheet maintained as Ex.X-1.

No documents are marked on behalf of opposite party.

Now the points for determination are that:

1. Whether the opposite party has committed medical negligence/professional negligence in conducting surgery on the complainant on 05-01-05 and subsequent there to in post operative treatment?

2. Whether the complainant is entitled for the compensation amount of Rs.2,00,000/- as prayed for?

3. To what relief?



POINTS 1 to 3:- The dispute raised in this case is about medical negligence/professional negligence on the part of opposite party by the complainant. The same is denied by the opposite party. Rest of the facts such as the complainant sustaining an injury to his left leg on 05-01-05 in his village Adigoppula of Narasaraopet taluq and got admitted himself in the hospital of opposite party and undergoing surgery on the same day to multiple fracture at the knee joint of left leg, insertion of steel rods and subsequent discharge from the hospital on 05-02-05 are no way in dispute. It is also not in dispute that the complainant underwent second surgery in Dr. Lakshmana Swamy hospital of Guntur on his left leg at knee joint in the month of October, 2005.

Thus as seen from the facts of the case, now the dispute confines to surgery conducted by the opposite party at the knee joint on the left leg of the complainant on 05-01-05 while inserting steel rod and the subsequent treatment for a period of one month. As seen from the version and the affidavit given by opposite party it is claimed that the complainant was operated on 05-01-05 for fracture of his left leg below knee and there was no need of bone grafting as it was a fresh case. IT was done under “C” Arm image intensifier with closed technique and the nail was properly fixed as per the procedure adopted and accepted as proper by a reasonable body of medically skilled in that particular art and as laid down in the text of medicine. The opposite party claimed himself an expert in orthopedics and having 15 years of experience and there were no complaints at any time from any patient except this complainant. It is strongly denied that there was any negligence either medically or professionally in conducting surgery or subsequent treatment in his hospital. Reasonable degree of care and skill is said to have been taken at the time of performing surgery. Therefore, there is no deficiency of service on his part in rendering service and no negligence can be attributed. It is further alleged that absolutely there is no positive evidence on behalf of complainant in proving the wild allegations made against him.

The complainant relied upon the certificate given by opposite party vide Ex.A-1 which reads that the complainant had fracture of his left leg on 05-01-05 and he was operated on the same day and discharged on 05-02-05 with an advise of bed rest for 6 months. Ex.A-4 is the office copy of legal notice dated 10-02-06 got issued by the complainant through his advocate namely S. Satyanarayana to opposite party alleging the same facts as mentioned in the complaint. Ex.A-5 is the returned cover with an endorsement as ‘party refused’. Ex.A-6 is the certificate dated 25-10-05 issued by Sanjivi Orthopedic & Physiotherapy centre by Dr. Lakshmana Swamy which reads that, “the complainant was admitted in his hospital on 07-10-05 with non union of left tibia. Fixation by plate + screw and bone grafting done on 09-10-05, patient was discharged on 25-10-05. He is advised to come up for further treatment regularly”. Ex.A-7 are the bunch of medical cash bills under which he purchased medicines from time to time during his treatment and also medical prescriptions given by opposite party. The total amount calculated at Rs.13,830/- in purchase of medicines.

As stated supra, the complainant has summoned Dr. A. Srinivasa Rao from Sanjivi Orthopedic & Physiotherapy centre who has attended in conducting second surgery on the complainant along with Dr. Lakshmana Swamy and examined before this Forum. In his evidence Dr. A. Srinivasa Rao speaks that the patient (complainant ) was admitted in their hospital on 07-10-05 with non union of left Tibia with inter locking nail insitu. He was operated on 9-10-05 for removal of inter locking nailing and later plating and bone grafting were done. He was discharged on 25-10-05 with an advise to attend for follow up treatment. On the date of giving evidence also the patient was examined by the doctor and confirmed bone union of left tibia. There is no shortening or deformity for any infection. Plates are still inside the left leg. After removal of the implant there will not be any problem. Patient has to take rest for a period of 4 weeks after removal of implant. Further it is stated that the patient had taken treatment in a private nursing home at Narasaraopet where interlocking nailing was done. He has also filed the case sheet maintained in hospital which is marked as Ex.X-1. However a suggestion is made by the counsel appearing for the opposite party that this case sheet vide Ex.X-1 was not maintained at the time of conducting operation but prepared subsequently as entries appearing to be made recently. But the said suggestion was denied. It is also elicited from the witness that non union of tibia can occur as a known complication after fixing the fracture with interlocking nail. Non union can occur due to negligence of the patient, not taking bed rest or taking follow up action from the doctor. Entries in the case sheet under Ex.X-1 do show similar entries as stated by the witness and tests conducted prior to the operation and the medicines prescribed till he was discharged on 25-10-05.

On going through the material evidence as produced by the complainant there appears to us that the complainant has no way established that opposite party has committed deficiency of service either in conducting surgery on the left leg at knee joint or in post operative care. All the documents relied upon by the complainant were furnished by the opposite party itself except Ex.X-1. The evidence of Dr. A. Srinivasa Rao who attended on the complainant along with Dr. Lakshmana Swamy at the time of doing second surgery on 09-10-05 is in no manner against the method of conducting surgery and the procedure followed therein in inserting steel rod etc. On the other hand, in his own words it is spoken that non union of tibia can occur as a known complication after fixing the fracture with interlocking nailing and this can also occur due to negligence of the patient in not taking rest or in not following the follow up action. As put forth by the opposite party in his affidavit and version the complainant once discharged on 05-02-05 from his hospital never turned up again for follow up treatment except for collecting the reports and duplicate bills in the month of October, 2005 i.e., after a gap of 8 months. The opposite party asserted himself that he is highly qualified doctor practicing in Orthopedics in Narasaraopet since 15 years at no time any complaint is received from any patient. He is MS. Orthopedics as seen from the certificates issued in favour of complainant. He is registered medical practitioner vide Regd.No.16754. Except the material as stated supra no other evidence on record to find out prima facie any negligence on the part of opposite party either medical or professional. There seems to be no positive evidence to show lack of due care and negligence either at the time of conducting surgery or post operative treatment. The evidence on record no way suggest that the opposite party has deviated himself in not adopting or resorting to universally accepted medical principles in giving treatment to the complainant.

The learned counsel appearing for the opposite party in support of his case relied upon the following decisions,

1. 2003 (2) CPR 44 (NC) between Dr. R.C. Sharma vs. Jage Ram, it is held that an error of judgment by a doctor qualified in the field in treatment of patient may not amount to medical negligence.

2. IV 2005 (CPJ) 62 (NC) between Manuj Garg vs. Goel Hospital & Anr., in this case fractured arm was treated by way of closed reduction process severe pain complained. Injection administered. Condition became critical after injecting medicine, expired despite efforts of experts. It is alleged negligence on the part of doctor and also manipulation of records. The National Commission observed that correct decision regarding treatment was taken as the doctor is competent and qualified to so. 3 reports of different doctors are produced but found no negligence on the part of doctor who operated the patient.

In the instant case also Dr. A. Srinivasa Rao did not find fault with the treatment and procedure adopted by opposite party.

3. (IV) 2005 CPJ 41 (NC) between Kamla Patni & others vs. Appollo Nursing Home & Ors., in the above case complainant is an old patient and also having B.P., admitted in nursing home of opposite party. Overall negligence in diagnosis, investigation, treatment and management alleged which ultimately resulted in death of patient. Absence of weighty evidence in support of allegations. The patient was highly obese, suffering from diabetes and other diseases, not strictly following medical regimen advised by doctor. It is held that no negligence and deficiency of service is proved.

4. 2004 (6) ALD (cons.) between Kethiri Sai Reddy vs. Appollo hospitals, in the above case, the complainant was suffering from progressive numbness in left and right upper and lower limbs. The opposite party on perusal of test reports diagnosed problem as viral disease (GBS). Complaint underwent treatment. Severe pain in neck and shoulder complaint. Advised to undergo MRI test to take fresh nect x-ray and also surgery. After operation complainant underwent physiotherapy as advised by doctors. It is observed that symptoms which prompted doctor to diagnose disease as GBS cannot be said to be irrelevant or unwarranted and found that complainant failed to prove deficiency in service.

5. 2005 CTJ 1233 (CP) (NCDRC) between Mrs. Preeti Daksh vs. St. Thomas Hospital and others, in the above case the deceased was brought to 1st opposite party hospital complaining of pain in abdomen on 08-07-99. It was diagnosed as a case of appendicitis. Patient was operated by the 2nd opposite party on 13-07-99. Condition of the patient allegedly deteriorated after the operation and he was, therefore, shifted to another hospital on 16-07-99 where he died on 01-08-99 in view of severe septicemia that the patient had developed. Complaint was made by the wife of the deceased alleging medical negligence on the part of opposite parties and seeking compensation on the facts. It is observed that admittedly septicemia is known complication following appendectomy. An unfortunate case which developed in spite of care taken. A criminal case was registered. During the pendency of said case, a Medical Board constituted by the Government of Tamilnadu which arrived at a decision that there was no negligence on the part of opposite parties. Subsequently, the National Commission also sent the said report to G.B. Pant Hospital, New Delhi for their expert opinion. They opined that there was no apparent case of negligence on the part of operating team. In the said circumstances, it is held that no negligence is established by complainant and complaint was dismissed.

6. 2009 (2) ALD 67 (SC) between Martin F. D’Souza vs. Mohd. Ishfaq, in this case it is held that, “Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of resipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation would be at stake. A single failure may cost him dear in his lapse”.

7. Lastly he relied upon 2009 (6) ALD 25 (SC) between Ins. Malhotra vs. Dr. A. Kriplani and others, in which it held that in a case of Medical Negligence burden of proof lies largely on claimant, which can be discharged by leading cogent evidence. Mere averment in a complaint which is denied by other side can, by stretch of imagination, be said to be evidence by which case of complainant can be said to be proved. It is obligation of complainant to provide facta probanda as well as the facta probantia. The National Commission is not justified in proceeding on basis that whatever alleged in complaint by respondent was in fact inviolable truth even though it remained unsupported by any evidence.



Having considered the evidence on record and principles evolved by various State and National Commission as well as A.P. High Court, we are of the considered opinion that the complainant has miserably failed to establish either medical or professional negligence on the part of opposite party in conducting surgery on the left knee of complainant or in taking post operative care. It is no way established that the procedure followed by the opposite party in doing IT under “C” Arm image intensifier with closed technique, properly fixing the nail is not medically acceptable one. The opposite party is an experienced and skilled doctor and there was no error of judgment on his part in doing surgery and giving treatment to the complainant. Hence, complaint is dismissed and each party shall bear their own costs.