Birendra Kumar Sinha vs BHAGWAT PRASAD BHAGWAT

-THE case of the complainant, in brief, is that Smt. Kunti Devi, wife of the complainant sustained a hip injury on 17.4.1994 resulting in femoral neck fracture. Dr. N.N. Bhagat, Orthopaedic Surgeon who was consulted suggested surgery. Due to misguidance, the complainant went to the clinic of Dr. Birendra Kumar Sinha, the opposite party on 24.4.1994 who advised that Kunti Devi was 67 years old and was not fit for surgery and plaster was the proper treatment and kept Kunti Devi on traction. On 28.4.1994 clinical and pathological examination was done at Kamla Clinic. After 11 days i.e., on 5.5.1994 traction was removed and without taking any x-ray plaster was done and the patient was kept in the nursing home till 3.7.1994.

ON 3.7.1994 O.P. removed the plaster and x-ray was done by the O.P. who stated bone has not joined and Kunti Devi complained of pain and swelling, some medicine was prescribed by O.P. which did not give any relief though she remained under O.Ps. treatment upto 28.9.1994. The complainant took his wife to Patna Medical College Hospital (hereinafter called P.M.C.H.) on 15.10.1994 where she was treated for Septicemia, Cox, bed-sore, etc. till 28.10.1994. Then the complainant consulted Dr. Mukhopadhya and his wife was admitted at Popular Nursing Home where after various tests she was declared fit for operation and 2.11.1994 was fixed for operation. As the doctor did not arrive due to Deepavali and the patient also developed jaundice, the surgery could not be performed. While going back home on 5.11.1994 Kunti Devi expired in the train. Alleging negligence by Dr. Birendra Kumar Sinha, complainant claimed compensation of Rs. 4,00,000 on various grounds.

The opposite party Dr. Birendra Kumar Sinha contested the case stating that he has vast experience and had given best possible treatment to Kunti Devi. As she was 67 years of age and she was not fit for operation, he chose the conventional method. Though he admitted that he kept Kunti Devi on traction for some days and then on plaster, he argued that there was no negligence in treatment. In written arguments submitted on behalf of doctor it was stated that no expert evidence has been led by the complainant to show that there was negligence. Even Dr. Mukhopadhyay has not expressed opinion that treatment by the O.P. was wrong.

PRESIDENT of the District Forum after hearing the parties directed the opposite party to pay Rs. 1 lakh as compensation for mental agony, harassment and economical loss along with Rs. 50,000 as expenses for medical treatment and Rs. 20,000 as costs of litigation. The other two members dismissed the complaint holding that there is no deficiency in the service on the part of the doctor. Aggrieved, by the majority judgment of the District Forum, the complainant filed an appeal before the State Consumer Disputes Redressal Commission, Bihar, Patna. The State Commission after hearing the parties set aside the majority order passed by the District Forum and held that the complainant is entitled to get a compensation of Rs. 1 lakh for the mental shock and loss of companionship. The Commission further awarded Rs. 40,000 as compensation for various costs incurred during treatment of Kunti Devi along with Rs. 5,000 as costs.

DISSATISFIED by the order of the State Commission Dr. Birendra Kumar Sinha has filed this revision petition. The learned Counsel for the petitioner as well as the respondent in person were heard at great length. Findings: Dr. Birendra Kumar Sinha is a general surgeon and not an orthopaedic surgeon. Dr. N.N. Bhagat orthopaedic surgeon has advised the petitioner that the only way of treatment of Kunti Devi was surgery, which was disregarded by Dr. Sinha.

IT is not disputed that she was under treatment from 24.4.1994 to 15.10.1994. Despite long treatment by Dr. Sinha, there was no improvement in the condition of the patient. Despite this Dr. Sinha did not refer her to an orthopaedic surgeon for better management.

THE patient was put on traction on 24.4.1994 by Dr. Sinha without conducting an x-ray. Incidentally, it may be noted that Dr. Sinha is not a radiologist also. Dr. Sinha did not think of surgery despite the broken femoral neck of the hip. Though the patient was put on traction, it is interesting to note that there was no physiotherapist in the nursing home. Though pain killer drugs were administered to the patient, the patient had no relief. On 5.5.1994 the traction was removed and without conducting an x-ray plaster was put on the patient. On 3.7.1994 the plaster was removed and x-ray was taken by a non-technical man and the film was totally black. Though the lady patient was kept in the nursing home for such a long period there was no female nurse. Mr. Indra Deora, compounder working in the nursing home had not undergone the required training. He admitted in his cross-examination that he had studied up to Class 10 and not passed any examination of compoundary. In his cross-examination he had admitted that there is only one technician by name Upendra Prasad and there was no other employee in the nursing home. On 25.8.1994 when x-ray was taken the x-ray clearly showed that there was no union of the fractured part of the hip as corroborated by the radiologist at Dhanbad. As the patient did not get any relief she was shifted to P.M.C.H. where she was treated for septicemia, bed sore, cox, etc.

The complainant has produced receipts for the treatment given by the respondent at every stage including for the x-rays and various tests conducted. Despite long treatment under the care of the revision petitioner the patient''s condition had only deteriorated. "Learned Counsel for the petitioner has quoted the judgment in "Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors., (1996) 2 SCC, wherein it is held that the medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in case where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

THE above judgment quoted by the learned Counsel for the petitioner actually helps the case of the respondent. In this case, the detailed analysis of the case narrated supra clearly indicates that the doctor has not performed his duties to the best of his ability with due care and caution. Hence, we do not find any legal infirmity or jurisdictional error in the order passed by the State Commission. Hence, the revision petition is dismissed. There shall be no order as to costs. R.P. dismissed.