STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 23.05.2018
Date of final hearing: 26.07.2023/11.09.2023
Date of pronouncement: 11.09.2023
First Appeal No.680 of 2018
IN THE MATTER OF:-
Nand Ram S/o Sh. Kundan Lal, aged about 55 years, R/o Village Sarhaul, Tehsil and District Gurgaon.
....Appellant
Versus
- Dr. Umesh Gupta, Lotus Hospital 389/3, Mata Road, (Near Main Bus Stand), Gurgaon-122002.
- United India Insurance Company Limited through its Local Office at above State Bank of India, 4 New Colony, through its Branch Manager (Insurer of Dr. Umesh Gupta vide policy No. 041200/46/14/35/00000596 valid w.e.f. 26.04.2014 to 25.04.2015).
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Ms. Pratibha Yadav, counsel for the appellant.
Sh. Munish Kapila, counsel for respondent No. 1.
Brig. B.S. Tanunge, counsel for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Unsuccessful complainant-Nand Ram has assailed legality of order dated 12.02.2018 passed by learned District Consumer Disputes Redressal Forum- Gurgaon (In short “District Consumer Commission”) vide which his complaint has been dismissed.
2. Briefly, the facts: Complainant suffered grievous injuries on 31.10.2014. He suffered fracture of lower Jaw and Teeth. After getting First Aid Treatment from General Hospital-Gurgaon, he was referred to Safdarganj Hospital-New Delhi on 02.11.2014. On that day, due to strike of doctors at Safdarganj Hospital-New Delhi, he could not be operated of fractured Jaw and thus was discharged on same day. He met OP No. 1, who after going through medical record, offered better treatment to complainant. Complainant was thus admitted in hospital of OP No. 1 on 02.11.2014, where he remain admitted for four days; underwent surgery and bone plate was fixed in Jaw. As per allegations, he was not feeling well, unable to eat anything, Jaw was not having proper movement even after two months of treatment. He allegedly spent more than Rs.1.00 lacs on treatment. He went to another doctor where his X-ray was conducted. Expert told him that there was a gap in Jaw and there is also play in joint of fractures and one of fractures has been left without joint; screw was clearly seen extending in soft tissue, due to which, he was having unbearable pain in his Jaw. After X-ray, complainant went to OP No. 1 to explain about medical negligence, unbearable pain, play of Jaw, loose screw caused by him (OP No.1). He (OP No.1) did not pay any heed to his genuine request. Thereafter, he contacted another dental surgeon, who advised him for another operation for fixing Jaw for which, more than Rs.1.00 was to be spent. It is alleged that OP No. 1 has done surgery of complainant in careless manner, not expected from medical practitioner and it seems that he was neither a dental surgeon, nor a good practitioner and running hospital for extracting money in order to cause wrongful gain to himself. OP No. 1 is liable to indemnify his cause. He served legal notice, but in vain. On these allegations; complaint has been filed for compensation of Rs.4.00 lacs on account of OP No.1’s medical negligence, which has caused complainant; mental harassment, financial loss, great mental agony, pain and suffering along with interest and legal charges.
3. OP No. 1/appellant, in his defence has asserted that: Dr. Anil Jaiswal-Plastic Surgeon performed surgery and his (OP No. 1’s) name has been wrongly mentioned as operating surgeon. Complaint is misconceived, groundless, frivolous, vexatious and scurrilous. It has been filed with ulterior motive. It is pleaded that no specific, scientific and justified allegations in regard to negligence or deficiency in providing service have been made by complainant against him. OP No. 1 has denied any kind of negligence or deficiency in service in providing treatment to complainant. It is pleaded that OP No. 1 was insured with United India Insurance Company Ltd. (OP No.2) under Professional Indemnity Policy, valid from 26.04.2014 to 25.04.2015. He has also pleaded that he is well qualified reputed doctor. It is pleaded that complainant was admitted in Lotus Hospital on 02.11.2014 and operated on 03.11.2014, after explaining all details regarding procedure, risks and complications of procedure and anesthesia and subsequent care to be taken by him (complainant). Parasymphyseal compound comminuted fractures of mandibular involve a region bounded unilaterally just medial to the canine tooth internally fixed with two plating with screw under general anesthesia. Everything was done diligently, prudently with utmost due care and there was no negligence, at least on their (doctors’) side in providing treatment to complainant. Patient would undergo this procedure is always advised for liquid diet for minimum two weeks, followed by soft diet for another two weeks which is changed to over to normal diet over a period of one month. Patient was also explained about injuries in soft tissue; stiffness in Jaw movement happen in normal course over months by not doing physiotherapy mouth opening exercises which were explained in detail to complainant, besides given pain killers. Union of any fracture starts taking place between 6-10 weeks. Any fracture is painful and the pain is managed with immobilization and pain killers. Bony union on x-ray of any fracture takes time and union is complete some amount of play would occur at fracture site. It was a compound comminuted (multi pieces) fracture. The aim of this procedure is to stabilize the fracture segments to help in their proper union. All pieces of fracture need not be fixed, especially if they are non/minimally displaced. It is pleaded that screw used, passes the whole bonny thickness to be stable and to some extent can go into soft tissue. Allegations of unfair trade practice have been denied.
4. OP No. 2 in its separate defence has asserted that complainant was treated by Dr.Anil Jaiswal-Plastic Surgeon and his name has not been mentioned in the complaint, thus complaint is not maintainable against it. It is liable to be dismissed on ground of exclusion clause 9 (1) (v). It is pleaded that OP No. 2-insurer has issued Professional Indemnity Policy to OP No. 1 (Dr. Umesh Gupta-General Surgeon) w.e.f. 26.04.2014 to 25.04.2015 for Clinic/Business premises established at 106, Shakti Apartment, Sector-15, Part-II, Gurgaon. Terms and conditions and exclusions clause were supplied to OP No.1-insured. Same were sacrosanct between the parties and as per condition No. 10.1 of policy (text of condition No. 10.1 is reproduced in written version of OP No.2) insured was under obligation to give notice regarding any specific event or circumstance which may give rise a claim against insured and which forms subject matter of indemnity under policy. OP No. 1-Dr. Umesh Gupta has failed to discharge his part of obligation and has not given any notice to OP No. 2-insurer, immediately upon receiving legal notice dated 12.01.2015 issued to him by complainant’s advocate. He has also not sent copy of summons, copy of complaint sent to him by consumer forum to the insurer. OP No. 1 has violated terms and conditions of insurance policy and cannot claim any indemnity under the policy. He is also cannot claim any indemnity under the policy as his clinic established at 106, Shakti Apartment, Sector-15, Part-II, Gurgaon was insured under policy whereas as per complainant; complainant was provided treatment at Lotus Hospital, 389/3, Mata Road, Near Main Bus Stand, Gurgaon. Inter alia on these pleas; insurer has prayed for dismissal of complaint.
5. Parties to this lis led their respective evidence, oral as well as documentary.
6. On critically analyzing the pleas and evidence as led; learned District Consumer Commission-Gurgaon vide order dated 12.02.2018 (impugned herein) has dismissed the complaint. Feeling aggrieved, complainant has filed this appeal.
7. Learned counsel appearing for appellant/complainant has contended that impugned order dated 12.02.2018 is legally not sustainable. Medical negligence on the part of OP No. 1 has been established. Complainant suffered compound comminuted (multiple pieces) fractures. OP No.1 fixed the Jaw with two plating with screw under general anesthesia. He performed surgery in careless manner, with so much imperfection that gap in Jaw and occurrence of play at fracture site had resulted. It was willful fault of OP No.1 that he left one of the fractures without joint and even tightened the screw to such an extent that it extended in soft tissue, thereby causing unbearable pain to complainant and sufferings for long period. On 21.03.2017, complainant consulted doctor of Civil Hospital-Gurgaon. He also visited Safdarjang Hospital on 22.03.2017 and 23.03.2017, where doctors noted as under, as per Annexure A-2:-
“H/o Mandibular fracture of a pt. in OPG. Screw can be seen crossing Mandibular lower ridge.
It can also be felt by palpating his Mandibular lower ridge.”
“On palpation plates are moving. Screw can be left which is impinging pt skin. So kindly remove this plate.”
As per further contention; Complainant had follow up treatment at Safdarjang Hospital, at regular intervals from 30.11.2017 to 16.03.2018 as per Annexure A-3 and these reports (Annexure A-2 & Annexure A-3) of this hospital speaks volume of medical imperfection of OP No.1. It is urged that procedure for removal of plate was performed on patient (Nand Ram) at Safdarjang Hospital on 16.03.2018, on consent given by Amardeep (Brother-in-law). Further, it is urged that reliance by learned District Consumer Commission on Medical Committee’s Report dated 21.03.2017 is erroneous. It is urged that this report is outcome of collusion between doctors and OP No.1-appellant. On these submissions, learned counsel has urged for acceptance of appeal and for providing the victim (complainant); adequate compensation as claimed in complaint. Note:- Annexure A-1 to Annexure A-3 have been sought to be taken on record by filing application under Order 41 Rule 27 CPC by way of additional evidence.
8. Per Contra, learned counsel for respondent No. 1 & 2 have urged with one voice that there is absolutely no illegality in the impugned order dated 12.02.2018 passed by learned District Consumer Commission-Gurgaon. Learned counsel for respondent No.1 has urged that no medical negligence on the part of Dr. Umesh Gupta is visible on given facts and evidence. Learned counsel for OP No. 1 has stressed upon the applicability of Bolam’s principle.
9. This Commission has subjectively analyzed above rival submissions put before it.
10. The classic exposition of law on the field of Medical negligence has been first laid down in a decision of Queens Bench in leading case of Bolam versus Friern Hospital Management Committee [1957] 1 WR 582 wherein law has been explained in following words:-
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
Aforesaid principle of law was reiterated and explained in case of “Eckersley Vs. Binnie”, (1988) 18 ConLR1, in the following words:-
“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinary competent practitioner which have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.”
11. The law laid down in Bolam’s case (supra) is consistently being followed. Hon’ble Apex Court in landmark judgment in “Jacob Mathew Vs. State of Punjab and another (2005)6SCC1 while dealing with the case of negligence by professional also gave illustration of legal profession. The Court observed as under:-
“18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. , [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charles worth & Percy, ibid, Para 8.03)”
In yet another landmark case titled as “Kusum Sharma and another versus Batra Hospital and Medical Research Centre and others” 2010 (3) SCC 480, has laid down following 11 principles while deciding whether the medical professional is guilty of medical negligence, which must be kept in view:-
“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 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.
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.”
12. The present case in hand has to be analyzed on the pedestal of above cardinal principles. Undisputedly, OP No.1-Dr. Umesh Gupta holds qualification of MBBS & MS (General Surgery) which is evident from Annexure R-2. Hence, he cannot be presumed to be novice and neophyte of procedural aspects to be undertaken and kept in mind while conducting surgery. He is a professionally trained doctor. The defence taken by him in his written statement which is supported by his own affidavit dated 05.08.2016 would unambiguously reflect that treatment on complainant was done diligently, prudently and with utmost care and caution. His defence also project that stiffness can happen in normal course by not doing physiotherapy regularly in the shape of mouth opening exercise. Union of fracture commences between 6-10 weeks and some amount of play can occur at fracture site. Since complainant’s case was a case of compound communicated (multi pieces) fracture so the aim is to stabilize the fracture segment to help their proper union. All pieces of fracture need not be fixed especially if they are non/minimally displaced. The screw used passes through whole body thickness to be stable and to some extent can go into soft tissue. It is come in his evidence that complainant was explained in detail regarding the procedure/risk and complications and procedure and anesthesia.
13. The reliance placed by learned counsel on report (Annexure A-2) of doctor of Safdarjang Hospital is unfounded for obvious reason that: this report was given on 23.03.2017, when complainant went there, a day earlier, on 22.03.2017. This report has already been reproduced herein before. It does not mention anywhere that surgical treatment given by OP No.1-Dr. Umesh Gupta, was foreign to the prescribed medical standard meant for type of surgery performed by him (OP No.1) on complainant. Even through this report (Annexure A-2) complainant has unable to establish that there was any medical negligence on the part of OP No.1-Dr. Umesh Gupta, and he, in any way has deviated from prescribed Medical standard. There is no evidence that OP No.1 had fallen below the standard of reasonably competent medical practitioner in his field.
14. Learned District Consumer Commission has relied upon Medical Committee’s report dated 21.03.2017. There is absolutely no error in that context. Of course, Medical Committee’s report dated 21.03.2017 is an opinion of expert. Naturally, it has formed a formidable and acceptable base. Complainant has moved an application on 03.10.2017 for seeking medical opinion and on this application following order was passed by learned District Consumer Commission:-
“Heard on the application for seeking permission of medical opinion from medical expert. However, the enquiry report has been received from the Civil Hospital with regard to the medical negligence. Therefore, in view of the report dated 21.03.2017 the application for permission to medical opinion has become infructuous and the same is hereby dismissed. Now to come up on 28.11.2017, for arguments.”
15. Integral part of report dated 21.03.2017 also does not reflect any medical negligence on the part of OP No. 1-Dr. Umesh Gupta, even remotely. Needless to say that this report has been authored by Dr. Parveen Arya, Dental Surgeon and by Dr. Renu, Deputy Civil Surgeon Gurgaon. The argument of collusion between OP No.1-Dr. Umesh Gupta and two doctors who had manned Medical Committee is bereft of credence. Instead, this report dated 21.03.2017 is indicative of the fact that: plates inserted during operation of appellant are perfectly okay. After operation there is no complication. Occlusion has also been found okay. Just because, this report also recites that screw which is felt on left side of skin could have been removed six months after surgery, will not mean that there is medical negligence on the part of OP No.1. Phraseology of this report recites that: suffering on complainant/appellant can be cured through exercise. Palpably, complainant is trying to make his fortune from his alleged misfortune. This Commission has absolutely no reason to deviate from the observations of learned District Consumer Commission through order dated 12.02.2018 (impugned herein) which has its base on report dated 21.03.2017.
16. Medical negligence is not to be automatically presumed against any medical professional, if the treatment fails. It has to be borne in mind that no doctor does negligence, knowingly. No sensible medical professional would intentionally harm or injure a patient as his/her professional reputation would be at stake. Consumer Protection Act ought not to be used as a ‘halter around the neck’ of doctors making them apprehensive of taking professional decision, at crucial moment.
17. Learned counsel for complainant filed an application under Order 41 Rule 27 CPC along with this appeal, for leading additional evidence. Through this application indulgence of this Commission have been invited to place on record document Annexure A-1 to Annexure A-3. Document Annexure A-1 is the OPD Card of complainant dated 21.03.2017. Document Annexure A-2 & A-3 are the outdoor OPD card of Safdarjang Hospital. These documents were also produced before learned District Consumer Commission and are appended along with its record. In opinion of this Commission, the evidence already available on record would suffice the decision of this appeal. Even otherwise, on bare perusal of documents Annexure A-2 and A-3 also, no inference on alleged medical negligence on the part of Dr. Umesh Gupta-OP No.1 is deciphered and in this regard observations has been given in Para No. 13 of this Judgment. Hence, application under Order 41 Rule 27 CPC is dismissed.
18. Any other application(s) if pending, too stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 11th September, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
