AGARWAL ORTHOPEDIC HOSPITAL & ANR. vs SANDEEP ARORA & ANR.

The complainant No.1/Respondent No.1 namely Sandeep Arora fell down while driving a scooter and received injuries, including facture of his left hand. On 09.8.2000, he went to Gorakhpur and consulted Appellant No.2 Dr. R.A. Agarwal of appellant No.1 Agarwal Orthopedic hospital. He was advised surgery of his left hand involving implant of an inter-locking rod of Titanium in the Heumerus Bone, with the help of four screws. The aforesaid procedure was performed on 13.8.2000. The case of the complainant is that the X-ray done on 14.8.2000 showed that the interlocking rod as well as screws, both was over-sized, because of which a gap remained between the broken bones of his hand. A repeat X-ray on 16.8.2000 allegedly showed increase in the gap and both the screws emerging in the flesh. The complainant was discharged from the hospital on 18.8.2000, after he had paid a sum of Rs.32,648/- to the hospital. According to him on 10.11.2000, he got another X-ray done which revealed that the bone had not joined and there was a wide gap with all the four screws entering into the flesh. The X-rays were repeated on 11.11.2000 and 16.1.2001. The complainant thereafter went to Mariampur hospital, Shastri Nagar, Kanpur where the rod implanted by Dr. R.A. Agarwal was taken out and bone grafting was done. The X-ray taken on 28.02.2001 showed the joining of the bone. Alleging negligence in his treatment at the appellant hospital, he along with his wife approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the appellant who alleged that the rod as well as the screws was of the right size and there was no deficiency in the procedure performed in the hospital. According to the appellants, the loosening of the screws and a minor gap in the bone happened on account of the complainant having fallen from the bed while sleeping.

The State Commission vide order dated 19.10.2011, allowed the complaint and directed the appellants to pay a total sum of Rs.3.50 lacs to the complainant within two months, failing which the said amount shall carry interest @ 12% per annum from the date of the judgment. Being aggrieved the appellant is before this Commission by way of this appeal.

I have perused the record of the State Commission. The documents filed by the parties before the State Commission do not indicate that while discharging the complainant after removing the rod, Mariampur hospital had opined that either the rod implanted at the appellant hospital or the screws fixed for implanting the said rod were oversized. No deficiency in the implant carried out at Agarwal Orthopedic Hospital was pointed out by Mariampur hospital.

Though, X-ray plates filed by the parties are on record, there is o report of any Radiologist, stating therein that either the rod implanted at Agarwal Orthopedic Hospital or the screws used for implanting the said rod were oversized.

Thus, there was no expert opinion available to the State Commission to prove either that the rod implanted in the hand of the complainant or the screws used for implanting the said rod were oversized. Also, there was no expert evidence suggesting any defect or deficiency in the procedure whereby the said rod was implanted in the hand of the complainant. In the absence of such an expert opinion, the State Commission, in my view, was not justified in awarding compensation to the complainants. The proper course of action, in my opinion, would have been to examine the doctor, who removed the rod at Mariampur hospital, to find out whether the rod implanted at Agarwal Orthopedic hospital or the screws implanting the said rod were oversized. Also, the Radiologist who examined the X-ray plates of the complainant from time to time, should have been examined to find out whether the rod implanted in the hand of the complainant or the screws used for the said implant were oversized. Only after examining the above referred experts, the State Commission would have been in a position to find out whether there was any negligence or deficiency on the part of the appellant in rendering servicing to the complainant or not. It therefore, becomes necessary to remit the matter back to the state Commission for deciding the complaint afresh, after examining the above referred expert doctors.

For the reasons stated hereinabove, the impugned order is set aside and the complaint is remitted back to the State Commission for deciding the same afresh after examining the doctor (s) who removed the rod and the screws at Mariampur hospital and the Radiologist (s) who examined the X-ray plates of the complainant from time to time, on or after 13.8.2000. For this purpose, the State Commission will summon the above referred doctors, examine them, and give an opportunity to the parties to cross examine them. Considering the age of the complaint, the State Commission is directed to decide the same afresh within three months of the parties appearing before it. The parties shall appear before the state Commission on 27.03.2017.