The complainant Subodh Rani (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Dr. Amrit Gupta and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that complainant Subodh Rani Chopra fell down in her house on 06-07-2016 and she was immediately taken to Gupta Ortho Hospital Power House Road (opposite party No. 1), being nearest, for consultation. Dr. Amrit Gupta immediately admitted the complainant in his hospital and after doing X-rays etc., advised to get her operated in his hospital.
It is alleged that opposite party No. 1 performed operation and complainant remained admitted in the hospital of opposite party No. 1 for 6 days. The complainant was discharged from the hospital of opposite party No. 1 assuring full satisfaction and she was asked to visit opposite party No. 1 again after 45 days for opening the bandage.
The complainant alleged that, in between i.e. after 15 days of operation, complainant was called by opposite party No. 1 and after conducting x-ray, opposite party No. 1 assured the complainant that she will be okay and charged about 40,000/- and Rs.25,000/-, but the complainant kept on suffering from pain on her left hand elbow, which was operated by opposite party No. 1.
The complainant further alleged that even after all precautions and taking medicines for 45 days as advised by opposite party No. 1, after conducting X-ray, opposite party No. 1 found shorter plate and advised second operation of complainant immediately. The complainant consulted many doctors in this connection.
The complainant also alleged that opposite party No. 1 called her again and asked her to get the operation performed immediately otherwise bone may suffer septic. Since the complainant is 72 years old, she is unable to travel, complainant decided to get herself operated from opposite party No. 1 for the second time also.
It is alleged that on 05.11.2016, opposite party No. 1 performed second operation with longer steel plate and screws and advised the complainant to visit again after 45 days. After 45 days, complainant again visited opposite party No. 1 and Rs. 40,000/- were charged from her by opposite party No. 1. At that time, the opposite party No. 1 admitted that this time plates are longer than desired one and the results are negative. The opposite party No. 1 advised the complainant to go to doctor at DMC, Ludhiana.
The complainant further alleged that even after spending 1,00,000/- on treatment, complainant visited Max Hospital, for further treatment wherein she spent Rs. 30,000/- more upto 17-11-2016. It is alleged that due to negligence on the part of the opposite party No. 1, complainant suffered mental torture.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to refund all indoor expenses and medicine charges worth Rs. 40,000/-; pay Rs. 50,000/- for diet and conveyance; Rs. 30,000/- spent at Max Hospital; Rs. 5,00,000/- on account of disability of left hand of complainant and Rs.1,00,000/- for harassment etc.,
Upon notice, the opposite parties put an appearance through their respective counsel and contested the complaint by filing written reply. The opposite party No. 1 in his written reply raised preliminary objections that complainant is not consumer of the opposite party as she was treated under employee of Punjab Government Health Insurnace Cashless Scheme. The complainant has not paid any amount for treatment to opposite party No. 1. So, there is no privity of contract between the parties. That the complaint has not been filed through competent person. That the complainant has no locus standi and cause of action. That the complaint is wholly misconceived, groundless, frivolous and vexatious. That no specific, scientific and justified allegations with regard to negligence or deficiency in providing services has been made by the complainant. That the complainant has filed this complaint with false allegations of negligence and that the complaint is bad for non-joiner and mis-joinder of necessary parties. The opposite party No. 1 was insured with "United India Insurance Company Ltd.", through its Professional Indemnity Policy No. 2004002715p113730512 effective from 27-02-2016 to 26-02- 2017 and as such, no liability whatsoever can be fastened upon opposite party No. 1.
Thereafter opposite party No. 1 pleaded that factual matrix of the case are that Subodh Rani, complainant was treated under cashless scheme as her husband Prof. Y L Chopra is a retired Punjab Government employee and have health insurance scheme of Punjab Government employee. No payment for treatment was paid. Subodh Rani, complainant was admitted under the cashless scheme of the Punjab Government on 06-07-2016 following injury of her left elbow, with comminuted fracture lower end of the humerus. The fracture of left elbow was comminuted with very small fragment, the prognosis of such fracture union are poor and the same was explained to complainant. The post operative x-ray were satisfactory. However, after 45 days, when POP cast was removed, x-ray showed that the fracture has not united. The complainant was advised another surgery and she was also advised to have an opinion from another surgeon. Accordingly complainant consulted many doctors local and outside in this regard. As told by complainant, the other doctors also told her that she needs another surgery and prognosis of union is poor. After getting opinion from many doctors, she again came to opposite party No. 1 and got admitted under the cashless scheme of the Punjab government on 02-10-2016. Open reduction internal fixation and bone graft was done under image intensifier and the post operative x-ray was satisfactory. The complainant was given 2 units of blood transfusion, which was arranged by complainant. On 06-11-2016 POP was removed and the x-ray was done, which showed that the screws have pulled out from the lower small fragment of the humerus and the fracture has not united, probably due to non-following of instructions of doctor and also due to osteoprosis. The complainant consulted Dr. Dalveer Singh of Max hospital Bathinda and after check up, he told her that due to her old age and poor bones, with severe osteoporosis, the fracture is unlikely to unite and advised removal of implant. Then complainant got admitted in Max Hospital Bathinda under cashless scheme of the Punjab government and the implant was got removed accordingly. Everything done by opposite party No. 1, was done diligently, prudently, with utmost due care and caution in treating the complainant in the set up circumstances. There is no negligence or deficiency of service on the part of opposite party No. 1 in any manner.
On merits, the opposite partyNo. 1 admitted that complainant paid Rs. 500/- on 21-8-16 to opposite party No. 1. A sum of Rs. 2,000/- was paid by complainant to blood bank for 2 units of blood. The opposite party No. 1 received 56,015/- in total from the Government and not from complainant. Thereafter opposite party No. 1 reiterated his version as pleaded in factual matrix and detailed above. After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 filed its separate written reply and raised legal objections that there is no deficiency in service on the part of opposite party No.1 in providing treatment to the complainant in any manner. That Dr. Amrit Gupta in a highly qualified MBBS, MS, Orthopaedic Surgeon and has a vast experience in the field of surgery of broken bones and there in no deficiency in service on the part of opposite party No.1 in providing medical advice and treatment provided to the complainant. That opposite party No.1 has obtained Professional Indemnity for doctors (Special Drive) and Professional Policy vide No. 2004002715P113730512 effective from 27.02.2016 to 26.02.2017 issued to the opposite party No.1 is a contract of insurance to indemnify the insured regarding any legal liability/award/order, which has been satisfied by the insured. Since no award/liability/order/payment has been made against the opposite party No.1 and in favour of the complainant, no compensation has been awarded to the complainant so far, so the insurance company cannot be impleaded as party at this stage. That as per exclusion clause 2(v) of the policy, this policy does not cover the risk arising out of fines, penalities, punitive or exemplary damages. That complainant has not come with clean hands before this Commission and has suppressed true and material facts. That the intricate question of law and facts are involved in the present complaint, which require voluminous evidence, and as such the present complaint cannot be disposed off in summary nature. That the amount of compensation claimed is highly excessive and exorbitant one. That the complaint is false and that the complainant is not consumer.
On merits, the opposite party No. 2 has pleaded that since opposite party No. 1 is a fully competent and qualified surgeon, so there is no negligence in providing treatment to the complainant by opposite party No. 1 and no record of any negligence on the part of opposite party No. 1 has been placed on file. After controverting all other averments of complainant, the opposite party No. 2 also prayed for dimissal of complaint.
In support of her complaint, the complainant has tendered into evidence her additional affidavit dated 30-3-17 (Ex. C-1), photocopy of health insurance scheme card (Ex. C-2), photocopy of prescription (Ex. C-3), photocopy of payment receipts (Ex. C-4 to Ex. C-6), photograph (Ex. C-7), photocopy of discharge detail (Ex. C-8), special power of attorney (Ex. C-9) and photograph (Ex. C-10).
In order to rebut the evidence of complainant, opposite party No. 1 tendered into evidence affidvit dated 25-5-17 of Dr. Amrit Gupta (Ex.OP-1/1), affidavit dated 25-5-17 of Dr. Rajesh Badyal (Ex. OP-1/2), photocopy of certificates (Ex. OP-1/3 to Ex. OP-1/5), photocopy of insurance policy (Ex. OP-1/6), photocopy of medical literature (Ex. OP-1/6). The opposite party No. 1 tendered in additional evidence photocopy of claim form (Ex.OP-1/8), photocopy of invoice (Ex. OP-1/9), photocopy of discharge summary (Ex. OP-1/10), photocopy of operation notes (Ex. OP-1/11), photocopy of bill (Ex. OP-1/12) and photocopy of documents regarding claim (Ex. OP-1/13).
The opposite party No. 2 tendered into evidence affidavit dated 17-7-2017 of Baldev Singh (Ex. OP-2/1) and photocopy of policy (Ex. OP-2/2).
The learned counsel for the parties reiterated their stand as pleaded in their respective pleadings and detailed above.
The case of complainant is that the opposite party No. 1 was negligent in providing her medical treatment. In case of 2010 (1) CPJ 29 (SC) titled Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. Hon'ble Apex court has observed that while deciding whether medical professional is guilty of medical negligence, following well known principles 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 judgement.
(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 desire 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 procession 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 professional 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 complaints 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.”
In the case in hand, the complainant has alleged that it was the duty of the doctor to tell the truth to the patient before starting treatment. In this case, the doctor did not diagnose the accurate problem and failed to suggest the procedure to complainant. The opposite party operated hurriedly and complainant suffered a lot of pain after operation of left elbow. The submission of learned counsel for complainant is that complainant became permanently disabled and is not able to get the work done from the left arm. In support of his submissions, learned counsel for the complainant cited (i) 2020(2) Apex Court Judgements 578 (SC) case titled Maharaja Agarsen Hospital & Ors., Vs. Master Rishav Sharma & Ors.(ii) 2014(3) Apex Court Judgements 760 (S.C.) case titled Alfred Benddict & Anr. Vs. M/s Manipal Hospital, Bangalore & Ors., (iii) 2015 (2) Apex Court Judgements 762 (S.C.) case titled V Krishnakumar Vs. State of Tamil Nadu & Ors.
It is well settled that in order to claim compensation, the complainant is required to allege specific negligence on the part of treating doctor who had provided treatment. In this case, the version of the opposite party No. 1 is that Subodh Rani, complainant was admitted on 06-07-2016 following injury of her left elbow, with comminuted fracture lower end of the humerus. The fracture of left elbow was comminuted with very small fragment, the prognosis of such fracture union arc poor and the same was explained to complainant. The post operative x-ray were satisfactory and after 45 days, when POP cast was removed, x-ray showed that the fracture has not united. The complainant was advised another surgery and she was also advised to have an opinion from another surgeon. After getting opinion from many doctors, she again came to opposite party No. 1 and got admitted on 02-10-2016. Open reduction internal fixation and bone graft was done under image intensifier and the post operative x-ray was satisfactory. On 06-11-2016 POP was removed and the x-ray was done, which showed that the screws have pulled out from the lower small fragment of the humerus and the fracture has not united, probably due to non-following of instructions of doctor and also due to osteoprosis.
Hence, it is to be seen whether the procedure adopted by opposite party No. 1 in this case is as per prescribed medical procedure. As per Discharge Summary Ex. OP-1/10, issued by opposite party No. 1. it was specifically mentioned in discharge summary that diagnosis are Non-union comminuted fracture lower end of humerus left and by operation failed implant was removed. Bone ends freshened and fixed with 3+5 hole extra articular locking plate with 2 locking screw 3.5 mm in lower fragment and 4 screws 3.5 mm in upper end and 2 k-wire on medial side. Wound closed with negative suction drain. Above elbow POP synthetic slab. Post-operative antibiotics and analgestics given.
As per prescription slip (Ex. C-3) of opposite party No. 1 placed on file by complainant herself, she visited opposite party No. 1 last time on 6-11-2016 and opposite party No. 1 has specifically metnioned on this slip that POP removed and X-ray shows # has not united. Thereafter complainant did not visit opposite party No. 1 and consulted Dr. Dalveer Singh of Max hospital Bathinda and the implant was got removed there, as is evident from prescription slip/operation notes of Max Hospital (Ex.-8). Ex. C-8 reveals that Past history was old non-united fracture distal numerus 9 months old with implant in SITU and Surgery done on 12-11-2016 was “Implant Removal Distal Humerus.” The complainant has not placed any document on file to prove that Dr. Dalveer Singh of Max Hospital, who operated complainant after opposite party No. 1 opined even a single word regarding negligence of opposite party No. 1 or treatment provided to complainant by opposite party No. 1 was not as per prescribed medical procedure.
Therefore, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. In this case, the complainant has not placed on file any document to prove that treatment provided to her was not as per prescribed medical procedure/medical ethics. The opposite party No. 1 in his affidavit (Ex. OP-1/1) has deposed that fracture of left elbow of complainant was comminuted with very small fragment, the prognosis of such fracture union are poor and the same was explained to her.
To prove his version, opposite party No. 1 has also placed on file abstract from medical literature -'Distal humerus fractures in elderly patients : results after open reduction and international fixation', which reveals that : 'Results ' - Fractures with complete joint involvement were seen most often. Taking the fractures type into consideration, functional results deteriorated with degree of joint involvement. Post-operative complication rate was high. Predominantly seen as screw loosening and/or implant failure at the lateral column.'
The submission of opposite party No. 1 is that everything done by opposite party No. 1, was done diligently, prudently, with utmost due care and caution in treating the complainant in the set up circumstances. In support of his contentions, the opposite party No. 1 has also placed on file affidavit (Ex. OP-1/2) of Dr. Rajesh Badayal, M.S. Ortho, of M/s. Badayal Hospital, Bathinda, wherein said doctor has deposed that he is doing private practice as Orthopedic Surgeon at Bathinda since last 20 years. He has also deposed that Smt. Subodh Rani Chopra (complainant) 72 years female had severed osteoporotic fracture lower end of humerous left with multiple fragements. She was under the treatment of Dr. Amrit Gupta (opposite party No. 1) and she had also consulted him (Dr. Badayal) during her treatment. Dr. Badayal had explained to her relatives Prof Y L Chopra (husband of complainant) that the prognosis of such fracture is poor and as the bones are weak and there are chances of implant failure. Dr. Badayal has also deposed in his said affidavit that Treatment given by Dr. Amrit Gupta was as per recommendation and as per requirement of such fracture.
Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Commission is of the view that the complainant has failed to prove medical negligence on the part of the opposite party No.1 by placing any cogent and convincing evidence/expert evidence.
The Hon'ble Supreme Court has made the matter crystal clear and settled the law in the following titled cases :-
(i) Titled 2009(1) CPR 231 (SC) Martin F. D'Souza Vs. Mohd. Ishfaq :-
“....(ii) Medical Negligence – 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 res ipsa loquitur – No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient.”
(ii) Titled 2010(2) RCR (Civil) 161 Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others – wherein it has been held that :-
“......7. 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.”
(iii) Titled 2005(3) RCR (Criminal) 836 Jacob Mathew Vs. State of Punjab & Anr., wherein it has been held :-
“ ....(3) No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake.
(4) A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”
In a case of alleged medical negligence what is required to be seen is whether the doctor concerned charged with negligence has acted in accordance with the general and approved practice and if it is proved that he has followed such practice then it is enough to clear him of any charge of negligence. In the case in hand, complainant failed to prove that procedure adopted and sugery performed by opposite party No. 1 is not as per approved medical practice/eithics.
With utmost regard and humility to the authorities cited by the learned counsel for the complainant, they are distinguishable on facts.
Resultantly, complainant has failed to prove any medical negligence on the part of the opposite party No. 1 by producing any cogent and convincing/expert evidence. Hence, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced:-
18-04-2022
(Kanwar Sandeep Singh)
President
(Paramjeet Kaur ) (Shivdev Singh)
Member Member
