Sukhdev Raj son of Krishan Chand resident of S-163, Basant Bihar, Nurwala Road, near Water Tank, Ludhiana.

Versus

1- Bhagwan Ram Charitable Hospital, Ram Lila Maidan, Daresi, Ludhiana through its Chairman/President.

2- United India Insurance Co. Mata Rani Road, Ludhiana.

3- Dr. Rajinder Singh MBBS, M.S.(Ortho), Bone and Joint Specialist, Bhagwan Ram Charitable Hospital, Ram Lila Maidan, Daresi, Ludhiana.

4- The New India Assurance Co. Ltd. Branch Office 38, 39, Bhadaur House, Ludhiana.


1- Complainant on account of pain in left leg on 9.9.2002, visited hospital of opposite party no.1, for check up. After check up, was advised operation of the left leg for which, Rs.12000/- was shown expenditure. Subsequently, got his left leg operated, despite which, was not cured and continued to feel pain. On advice of opposite party, again on 4.10.2002, got admission in the hospital, when a clump (shikanja) was affixed on the leg. Subsequently, clump was removed after 12 days and discharged, requiring him to visit the hospital for dressing for a month and injections for 45 days. But in the hospital, instead of putting new clump, an old one was used, due to which gangering developed in the operated portion of the leg. Again, he was admitted in the hospital and on advice of the doctor, leg was operated by fitting another clump. Thereafter, when clump removed, was not found fit and after x-ray, plaster was applied on his leg.

He had incurred Rs.90000/- for treatment. Despite it, he is not fit. Subsequently, on advice of opposite party doctor, G.T.B. was put on his left and despite it, he was not cured and unable to walk even with the help of sticks. So, claimed that opposite party doctor was negligent in treating him, amounting to deficiency in service. Therefore, in this complaint u/s 12 of the Consumer Protection Act, 1986, claimed compensation of Rs.2 lacs alongwith Rs.90,000/- amount spent on treatment.

2- Opposite parties no.1 & 3 in joint reply, have admitted getting treatment for left leg from them by the complainant. But denied any negligence on their part, while treating the complainant. It is averred that false allegations of negligence or deficiency in service stand levelled by the complainant. Complaint is based on false allegations and he has not come to the Fora with clean hands. It is pleaded that the complainant has suppressed material facts. Complainant never came to the hospital on 9.9.2002. Rather he for the first time, visited OPD on 12.9.2002, as outdoor patient. Case of the complainant was non united fracture of left tibia since 15 years with united fracture fibula with acute infection known asosteomyelitis. Such disease requires urgent admission and surgery.

Despite advice to take immediate admission for surgery, complainant ignored the same and came to the hospital on 30.9.2002 after lapse of 3 weeks from initial consultation. By that time, infection had established in the form of foul smelling discharge from the fracture site which had exposed bone in the wound. After investigation, it was found that it was a case of chronic bone infection. Hence, on first admission, he was operated for pain debridement plus A.O. plus external fixator application plus partial fibulectomy. He was discharged on 12.10.2002. Was advised to come to OPD, due to persistent infection of the wound site. Later on, external fixator was removed. But denied that old fixator was put which caused infection. Also denied that complainant again got admitted in the hospital on 4.10.2002 and operation was done. He was discharged on 12.10.2002 and advised to visit the hospital, for dressing till infection is fully cured.

But he was irregular in visiting hospital for regular dressing, due to which, his case got aggravated due to infection. He then got re-admitted in the hospital on 4.4.2003 with complaint of bone infection and non united fracture. On investigation, infection of bone shown long standing and the wound was again debrided and external ring fixator was applied on 6.5.2003, thereafter, discharged on 16.5.2003. At the time of discharge, was advised to come to the OPD regularly for dressing purpose. But he did not follow, due to which infection flared. The patient was given plaster cast followed by long leg caliper, to walk with support. During his last visit, opposite party was informed, having no infection and his wound had been healed up. Bone ends were in good contact with some evidence of union. So, there is no deficiency in service. Treatment prescribed under standard medical science was provided to the complainant.

3- Opposite party no.2 in their reply, claimed that they have been unnecessarily impleaded and that the policy issued by them to the opposite parties, was in respect of entire machine with complete accessories/medical equipments/coolers, ACs etc. stored in the hospital. But they are not liable for any alleged negligence in medical treatment of the complainant in the hospital of opposite party no.1. Therefore, complaint against them, is not maintainable. Further claimed and there is no deficiency in service on their part.

4- Opposite party no.4 another insurance company, took plea that complaint is bad for non joinder of necessary parties. There is no deficiency in service on their part. They have denied and controverted all allegations of the complainant and claimed that he is estopped by his act and conduct, to file this false and frivolous complaint against them.

5- Complainant, opposite parties no.1 & 3 and opposite party no.4 adduced evidence in support of their claims and stood heard through their respective counsels.

6- Complainant in support of his claim, has simply relied on own affidavit Ex.CW1/A and filed receipts Ex.C1 to Ex.C19 issued by opposite party hospital, OPD slips Ex.C20 to Ex.C70, Radiologist report Ex.C71 to Ex.C76, x-rays Ex.C77 to Ex.C81 and photographs Ex.C82 and Ex.C83.

7- Whereas, opposite party in addition to affidavit of Sh. Kawal Kishor, President of opposite party no.1 hospital, filed affidavit Ex.RW2/A of Dr. Rajinder Singh, opposite party no.3 and entire case record Ex.R1 of treatment of the complainant.

8- Opposite party no.4 have also filed affidavit of its manager Sh. S.K. Gupta.

9- First of all, case of the complainant is that he on 9.9.2002, visited hospital of opposite party, for check up, when felt leg pain. This averment on his part, is controverted and denied by opposite party, by claiming that he for the first time, visited their OPD on 12.9.2002. Complainant has failed to place on the record any such evidence of visiting opposite party hospital on 9.9.2002. Whereas, from opposite party hospital record Ex.R1, it is made out from OPD tickets Ex.R1/6 dated 12.9.2002 that he approached as outdoor patient on 12.9.2002 hospital of opposite party no.1.

10- As there is no evidence of visiting hospital of opposite party by complainant on 9.9.2002, so we have to take it that he for the first time, went to the hospital, as out door patient on 12.9.2002. On that day, the doctor who examined him, observed as under:-

“Hypertrophic NU (non united) left leg

Mal United Fracture Fibula (15 years old),

Complaint of Acute Pain (No history of fall)

11- So, it is apparent that complainant went with problem of mal united with fracture of fibula since 15 years and non united left leg. He vide this prescription Ex.R1/6, was suggested to rest and take medicines. Consequently, on 7.10.2002, was operated after obtaining consent on consent form Ex.R1/3, for Debridement plus A.O. plus external fixator application plus partial fibulectomy of bone. After that, he from the hospital, was discharged on 12.10.2002 after admission on 3.10.2002, as recorded in Ex.R1/2. History of the patient recording imperfect non union of left leg.

12- So, it is apparent in these circumstances that complainant suppressed while filing this complaint that he had problem of non union of fracture of left leg since 15 years. Therefore, his allegations that suffered pain in left leg on 9.9.2002 and visited hospital of opposite party, is totally incorrect.

13- Further allegations that old clump, after operation, was put on the leg which caused gangering and infection on his operated portion of the leg, has remained unauthenticated by any material. Complainant has also not examined any expert, to prove that treatment provided to him by opposite party no.3 in hospital of opposite party no.1, was not of the standard required to be given for such patient. The treatment given by opposite party no.3 to the complainant, by no stretch of imagination, can be construed to be negligent, because complainant has failed to prove that he was wrongly and negligently treated and treatment ought to have been given, was not at all, provided.

14- Opposite party in support of the defence that proper and standard treatment, as required in circumstances, was given to the complainant, has referred certain text books dealing with the subject. In text book of Orthopedics and Trauma Part-III of Jaypee Brothers (Ex.R3), while dealing with “Infected Nonunions”, stated that they are treated by radical debridement and stabilization of the nonunion by internal fixation or by external fixation such as Ilizarov ring fixator or AO fixator.

15- Similar view in Cambbell’s Operative Orthopedics (Ex.R4), mentioned that bone is stabilized with external fixator after resection of necrotic bone.

16- In another text book Orthopedics and Trauma by Sh. G.S. Kulkarni Part-II,(Ex.R5), “Infected Nonunion”, is defined as that state existing after considerable time (6 to 8 months).

17- In the instant case, non union of tibula was since 15 years and it was infected. The treatment which was standard and professional throughout the country, was provided by opposite party. There is nothing on the record that opposite party no.3 negligently treated the complainant or did not provide requisite or standard treatment.

18- Also, opposite party has pleaded that complainant though consulted for the first time, OPD on 12.9.2002, but took three weeks to get himself operated despite advice and this increased infection due to his own negligence. Complainant had taken admission in hospital of opposite party on 3.10.2002 after consulting OPD on 12.9.2002. Therefore, if infection spread, complainant is himself to be blamed than the doctor treating him. There is no material that fixator was wrongly and negligently affixed by opposite party no.3 or due to such fixator, infection spread. Also, no expert is examined by the complainant, to prove his case that opposite party no.3 was negligent in treating/operating him. It was for the complainant, to prove negligence by examining expert evidence that opposite party doctor was negligent while treating him. On this ratio, we refer ourselves to a case reported as Ms Rohini Devi Vs H.S. Chudavat & Anr. 2002(1) CLT-173(NC).

19- Question of medical negligence has also been dealt by the Hon’ble Supreme Court in the latest authority reported as Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court). Hon’ble Apex court in that case has led general principles of medical negligence. In the words of their Lordships “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others Vs, State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”

20- In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have held that “A professional may be held liable for negligence on one of the two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (2) or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further their Lordships concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.

21- The sum and substance of the discussions is that complainant has not been able to prove the opposite party doctor negligently or wrongly treated him. Therefore, finding the complaint being without merit, the same is dismissed.