BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.201 of 2019

      Date of Instt. 10.06.2019

      Date of Decision: 19.12.2023

Anoop Singh s/o Balwant Singh r/o VPO Madhopur, Distt. Kapurthala.

..........Complainant

Versus

1.       Sekhri Hospital, Malri Road Nakodar, Distt. Jalandhar through its     Authorized Officer/Managing Director.

2.       Dr. Vivek Sekhri, M.B.B.S. C/o Sekhri Hospital, Malri Road,           Nakodar, Distt. Jalandhar.

3.       The Oriental India Insurance Co. Ltd. 4E/14, Azad Bhawan,    Jhandelwalan Ext. New Delhi-110005.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. Bhardwaj, Adv. Counsel for the Complainant.

                   Sh. Vikas Gupta, Adv. Counsel for OPs No.1 and 2.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP No.3.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the OP No.2 is a hospital under the name and style ‘Sekhri Hospital’ at Malri Road Nakodar and is offering medical services of various types whereas complainant is a permanent resident of address above mentioned and is sufferer and victim because of the negligent and careless attitude at the hands of OPs. On 22-08-2018, complainant met with an accident and suffered various injuries including fracture in arm and consequently Complainant was got admitted with OP No.1. The complainant remained admitted in hospital i.e. OP No.1 from 22-08-2018 to 27-08-2018 and during this period OPs provided treatment to complainant and also conducted an operation of fractured arm and ultimately, complainant was discharge from hospital on 27-08-2018. However, after been discharged from hospital, complainant as per the advice of OPs continued to follow up, however just a few days thereafter, complainant started suffering pain in his arm regarding which OP No.2 was also duly informed. Slowly and gradually, complainant noticed that near the wrist, swelling is being developed regarding which OP No.2 had also been duly informed during routine follow up, however OPs did not take proper care. Later on, complainant got conducted X-Ray of arm and to the sudden astonishment of complainant, it came to the knowledge of complainant, that at the time of conducting the operation, surgical needle (SUI) had been left behind by OP No.2 because of which Complainant was suffering from acute pain as well as swelling. Even till date complainant is suffering from acute pain as well as swelling and the said surgical needle (SUI) is still in the arm of complainant. Complainant has suffered a lot of bodily pain, mental tension, harassment because of the negligence and careless attitude of OPs. Because of act and conduct of OPs, complainant as well as his family had suffered physical pain as well as lot of mental tension, agony and harassment of course loss of money as well. A Legal Notice dt. 29.04.2019 was issued and sent a false and frivolous reply and as such necessity arose to file the present complaint with the prayer that the OPs be directed to entertain the claim of the complainant and further OPs be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the OPs No.1 and 2 just to harass, defame and extort illegal sum of money from the OPs No.1 and 2, hence the complaint is liable to be dismissed. It is further averred that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the OPs No.1 and 2 and the complainant has totally failed to explain "as to how he is involved and the OPs No.1 and 2 were negligent", hence the Complaint is miserably failing to explain the cause of action against the OPs No.1 and 2. Hence is liable to be dismissed outright. It is further averred that the complainant has filed this complaint with false allegations of negligence to the Forum by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the OPs No.1 and 2. Although, it is a fact that the OPs No.1 and 2 has not committed any negligence in this case, while providing the said treatment, hence complaint is liable to be dismissed. It is further averred that as such no cause of action arose against the OPs No.1 and 2 in this case, no negligence or deficiency in services in services has been made/provided by the OPs No.1 and 2 to the patient while providing the said services in question, and hence this complaint is not maintainable in present form and is liable to be dismissed outright. It is further averred that the present complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence (either in the form of commission or omission) has been committed by the OPs No.1 and 2 and hence the Complaint is liable to be dismissed. On merits, it is admitted that the complainant was admitted in the hospital/OP No.1 on 22.08.2018 with the fracture of radius alongwith segmental fracture ulna and the k-wires were fixed, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP No.3 in the present form. The complainant is not a consumer qua the answering respondent as such the complaint is liable to be dismissed. It is further averred that there is no privity of contract between the complainant Anoop Singh and the OP No.3. The OP No.3/Oriental Insurance Co. Ltd. is thus not a necessary party in the present complaint and as such the complaint is liable to be dismissed on this short score alone. It is further averred that without admitting any liability, it is submitted that the OP No.3 had insured the OP No. 2 under the Professional Indemnity Policy for Doctors subject to the respective policy conditions. In the present case, there is no error, omission or negligence on the part of the insured viz a viz the risk covered and thus the complaint is liable to be dismissed on this short score alone qua the answering respondent. It is further averred that no liability qua the answering respondent can be fixed in the present complaint proceedings. The matter interse the insured and the insurer is to be decided by the insurance company by determining whether any alleged claim is raised as per law/policy and whether the same is covered under the respective policy obtained by the concerned doctor or Hospital and as to whether the insured has breached the Policy Terms And Conditions and thereafter the liability of the insurance company, if any, is to be determined by the competent authority of the company, as per the terms and conditions/exclusion clauses of the Policy. As such, no relief can be granted to the complainant in the present complaint proceedings against the answering respondent. On merits, it is admitted that the OP No.3 had insured the OP No. 2 under the Professional Indemnity Policy for Doctors subject to the respective policy conditions, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant as well as counsel for the OPs No.1 and 2 very minutely.

7.                It is admitted fact that the complainant was admitted in the hospital/OP No.1 on 22.08.2018 with the fracture of radius alongwith segmental fracture ulna. The complainant has alleged that he met with an accident, whereas the OP No.1 & 2 have alleged that this fracture was caused by his own negligence and not due to the negligence of OP. But this is not tenable as the complainant has nowhere alleged that the fracture was caused due to the negligence of the OPs rather he has alleged that he met with an accident and suffered injuries and fracture. He remained admitted in the hospital from 22.08.2018 to 27.08.2018 and during this period, treatment was done by the OPs No.1 & 2. As per Ex.C-1, the complainant was discharged on 27.08.2018 and the consultant was OP No.1 i.e. Dr. Vivek Sekhri. The complainant has alleged that after few days, he started suffering pain in his arm with the swelling near the wrist. Getting the X-Ray conducted, he found that at the time of conducting the operation, surgical needle had been left behind by the OP No.2. He has proved on record the X-Ray and photographs Ex.C-3 to Ex.C-6.

8.                The OP has alleged that since the low fragment of ulna was too small to be fixed with plate, so the same was fixed with K-wire. He has also produced on record the medical terminology/literature to show the fixation of K-wire. As per medical terminology/ literature, the K-wire can be used for definitive fixation, if the fracture segments are small. The wires are used to fix small pieces and after definite fixation, these wires are removed after four weeks post operation. The OPs No.1 and 2 have alleged that the complainant was advised the K-wire removal in next follow-up visit, but he never turned up again and he visited the OP’s once only. He did not take care of himself and the OPs No.1 and 2 has pleaded no negligence on their part.

9.                As discussed above, it is proved that the complainant was admitted on 22.08.2018 and discharged on 27.08.2018 with the fracture of radius alongwith segmental fracture ulna. The X-Ray Ex.C-2 shows the PIN i.e. K-wire in the arm. The photographs have also been proved on record by the complainant Ex.C-3 to Ex.C-6 showing the injuries and stitches. Now the complainant has got removed the K-wires Ex.C12.

10.              The complainant has alleged medical negligence by the OPs No.1 and 2. In order to reach the conclusion about medical negligence by OPs No.1 and 2, it is necessary to discuss what is medical negligence. The Hon’ble Supreme Court has defined the medical negligence in the case, titled as“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-

                   “A case of occupational negligence is different from one of      professional negligence. A simple lack of care, an error of        judgment or an accident, is not proof of negligence on the part of          a medical professional. So long as a doctor follows a practice           acceptable to the medical profession of that day, he cannot be          held liable for negligence merely because a better alternative      course or method of treatment was also available or simply         because a more skilled doctor would not have chosen to follow or           resort to that practice or procedure which the accused followed.”

                   So, as per the law laid down by the Hon’ble Supreme Court, so long as the doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence. But at the same time, it is the duty of the doctor to inform the patient about the adverse effect or reaction of medicines and treatment in anticipation and should also inform the patient about the requirement for the follow up regularly and to do the acts as per the requirement of the injury and the disease suffered by the patient as per advice of the consulted doctor. It has been held by the Hon’ble Supreme Court in a case titled as ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others’ that ’the patients by and large are ignorant about the disease or the side or the adverse affect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any. If some medicine has some adverse affect or some reaction in anticipated, he should be informed thereabout.’

11.              In the present case, the OPs have admitted in their written statement that k-wires were fixed for temporary fixation during operation as the lower fragment of ulna was too small to be fixed with plate. The OPs have also admitted that after definite fixation, these k-wires are removed. It has also been admitted that the Pins are usually removed four weeks post operation. It has also been admitted by the OPs that the K-wire out to be removed in follow up visit, but the complainant never visited for follow up, though he was advised to get the removal of k-wire, whereas the complainant has alleged that he was never informed about the removal of the k-wire even when he suffered pain and swelling, he visited the doctor during the routine follow up, but they did not take proper care. OP No.2 is a doctor as per Ex.OP-2 consisting of the certificates of renewal and master of surgery. Ex.OP-4 is the record of the patient during the period, he remained admitted in the hospital. It is not disputed that the patient i.e. the complainant was informed about the effects during operation. He was also informed that the plates are to be fixed. The complainant has not raised any objection for the fixation of the plates, but his contention is that the OP acted negligently as they never suggested to remove the k-wire nor was informed that in next follow up, the k-wires are to be removed. As per the record, there was pain and swelling on the left wrist and perusal of the entire patient record shows that since the distant fragment of ulna is too small to be fixed with plate, so it was fixed with two k-wires on 23.08.2018, meaning thereby everything about the patient and his injury and disease was mentioned in the record including the fact of doing dressing. In the entire record, there is no suggestion or advise, when the patient is to visit the hospital for follow-up nor there is any fact mentioned in this record that he was ever advised to get the removal of k-wires after four weeks post operation as alleged by the OPs in written statement. So, as per the law laid down by the Hon’ble Supreme Court, the patients are to be informed about the admitted risk, if any. The OP has not produced on record any document to show that he has ever advised the complainant to get the removal of the k-wires after four weeks post operation or about the dates and period for follow up. It has been held by the Hon’ble Supreme Court in case titled as “Martin F. D’Souza Vs. Mohd. Ishfaq”, that ‘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.’ The duties of the doctor have been explained by the Hon’ble Supreme Court in a case titled as ‘Dr. Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. (AIR 1969 SC 128)’, which reads as under:-

                   ‘The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task 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.’

                    As per the law laid down by the Hon’ble Supreme Court in a case titled as ‘A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570)’ wherein it has been held that ‘A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one.’

                   It has been held by the Hon'ble Supreme Court that the doctor would be liable for negligence 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.

                   In the present case also, it is proved that though professionally he is the doctor and is well qualified. He is MS in Ortho, but after the operation, admittedly the k-wire was put and fixed for the benefit of the complainant only, but he did not perform his duty to inform the complainant to get the same removed and did not inform him about the side effects, if the same is not removed within fixed period. He acted negligently in that regard. So, the complainant is entitled for relief.

12.              There is no privity of contract between the complainant as well as OP No.3. Therefore, no direction can be given to the OP No.3 regarding the payment of insurance as the OPs No.1 and 2 are insured with OP No.3 and medical negligence has been found on the part of the OPs No.1 & 2 and not on the part of OP No.3. Therefore, the complaint qua OP No.3 is dismissed. However, the OPs No.1 and 2 can avail the remedy available under law to seek claim from OP No.3.

13.              In view of the above detailed discussion, the complaint of the complainant is partly allowed. The OPs No.1 and 2 are directed to pay an amount of Rs.35,000/- to the complainant. Further, OPs No.1 and 2 are directed to pay a compensation of Rs.10,000/- for causing mental tension, bodily pain and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

19.12.2023         Member                          Member              President