DR. AKHILESH CHANDRA GAUR vs MANIK CHAND

This appeal has been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 27.07.2006, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as "the State Commission") in consumer complaint no. C/M/SC/01, vide which, the said complaint filed by the present respondent was allowed in part and the petitioner/OP was directed to pay a compensation of Rs. 3 lakhs to the complainant.

The complainant/respondent, Manik Chand, Advocate, r/o Tilsai-Kala, Tehsil Kasganj, District Etah, Uttar Pradesh, stated in his complaint before the State Commission that he suffered fracture in both the bones of his right leg and got himself admitted at the nursing home run by the petitioner/OP doctor on 20.01.2000, where he remained under treatment from 20.01.2000 to 10.05.2000. The OP registered him vide registration no. 330 at serial no. 24. Even after 10.05.2000, he continued getting treatment from the said nursing home till 28.10.2000. It has been stated that the complainant paid Rs. 16,000/- for his stay in the nursing home and a further sum of Rs. 44,000/- was spent for medicines purchased from the market. The complainant alleged that due to negligence of the OP, he suffered 15% deformity in his leg and became handicapped, as is clear from the examination done by the Chief Medical Officer Etah on 05.12.2000. Because of his being handicapped, he suffered loss of income in his legal profession. The complainant sent a legal notice to the OP on 08.12.2000 by registered post, but the OP did not give any reply. The consumer complaint was then filed, seeking directions to the OP to pay a sum of Rs. 10 lakhs with interest, in addition to the expenses incurred on his treatment.

The petitioner/OP filed a written statement to the complaint before the State Commission, in which he stated that the complainant first contacted him on 20.01.2000 for treatment for his right leg, which had been injured in some accident. At that time, there was a wound and swelling on the leg. The OP gave him treatment for taking care of the swelling and the wound and also advised him to contact again on 05.02.2000 for further treatment. There was no indoor facility available at the nursing home and hence, there was no question of admission or stay of the complainant at the said place. On 05.02.2000, the complainant came to the OP again when x-ray of his right leg was taken at the nursing home and it was found that both the bones of right leg from lower part were fractured. Since the swelling in the right leg had reduced by that time, the plaster was done as per medical requirement, after properly setting the fractured bones. The complainant was advised bed-rest and asked to contact again on 10.02.2000. However, the complainant came after a long gap on 07.04.2000, when the OP found that the plaster had already been removed from his leg on the advice of some other doctor. On 07.04.2000, x-ray of the right leg was again taken and it was found that there was callus formation in the leg, meaning thereby that the treatment given to him was correct. The OP stated that after 07.04.2000, the complainant never visited him for treatment. The OP further stated that the complainant had paid him a sum of Rs. 1,600/- only for his total treatment which included consultation, x-ray and plaster of his right leg. The OP never advised the complainant to purchase medicines worth Rs. 44,000/-. The OP maintained that the complainant was fully capable of doing normal work and was not at all handicapped and the said factor could be confirmed by suitable medical opinion. The complaint should therefore be dismissed, since the story made by the complainant was false, incorrect and misconceived.

The State Commission, after considering the averments made by the parties, allowed the complaint and directed the OP to pay a sum of Rs. 3 lakhs to the complainant within two months of the receipt of the order. Being aggrieved against the said order, the OP/appellant is before this Commission by way of the present appeal.

During hearing, it was stated by the learned counsel for the appellant that there was no evidence of any medical negligence on the part of the OP doctor vis-a-vis the complainant. In fact, when the complainant came to him for the first time on 20.01.2000, there were already stitches on his leg, meaning thereby that he had taken treatment from somewhere else. This factor had been recorded on the medical notes recorded by the OP. It was also clear from these notes that the complainant was an outdoor patient only. The learned counsel further stated that the complainant had paid a sum of Rs. 1,600/- only for his entire treatment and receipt to this effect had been placed on record which mentioned the said amount in figures as well as in words. The learned counsel also stated that the bills in respect of the purchase of medicines were fake, as was clear from an affidavit filed by one of the chemists, Vinod Kumar Solanki. The learned counsel argued that although the Chief Medical Officer had given a certificate, saying that there was 15% disability on the complainant, the said certificate needed to be verified once again by making reference to the appropriate authorities. In fact, there were some instructions issued by the Ministry of Social Justice and Empowerment, Govt. of India on 01.06.2001, according to which, a certificate of temporary disability was valid for five years only. The State Commission should, therefore, have taken steps to verify the said certificate before pronouncement of their order.

In reply, the learned counsel for the complainant stated that the complainant had been asked to come to the doctor on 20.04.2000 for examination and accordingly, he had attended his clinic on that day. The learned counsel stated that the treatment given to the complainant was not proper and even the x-ray were not studied carefully. Further, the complainant had filed affidavits of five different persons in support of his version that he remained admitted at the hospital of the OP.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The main issue for consideration in the case is whether the appellant is guilty of any medical negligence towards the complainant, given the facts and circumstances of the case. It is a fact stated and admitted by both the parties that the complainant obtained treatment for fracture in his right leg from the OP doctor and for that purpose, he contacted him for the first time on 20.01.2000 where he was registered vide no. 330 at serial no. 24. The version of the complainant is that he remained admitted in the said nursing home from 20.01.2000 to 10.05.2000, whereas the OP doctor has stated that the patient was never admitted in his nursing home and he had no facilities for the stay of the patient over there. The doctor has stated that on 20.01.2000, he gave him treatment for reducing of swelling and healing of the wound and asked him to contact again on 05.02.2000 for further treatment. On that day, the x-ray of the right leg was taken and both the bones of the right leg from the lower part were found fractured. After proper setting of the fractured bones, the plaster was done as per the medical requirement. From the copies of the prescription slips produced on record, it is made out that the OP doctor has an MBBS degree as we l l a s h e h a s a d i p l oma i n Or t h o p a e d i c s (D. Ortho.). On 20.01.2000, the doctor prescribed medicines and asked him to come for dressing on 23.01.2000. In the papers on record, it has been stated that C & D wound was done on 26.01.2000, 29.01.2000 and 01.02.2000 and the patient was asked to come on 05.02.2000. In the written reply, however, the doctor has stated that on 20.01.2000, the patient was asked to come for further treatment on 05.02.2000. The report signed by the said doctor on 05.02.2000 mentions that there was ''fracture of both bones of right leg in the low one third'' and on that day, the POP Cast was made. On 05.02.2000, it had also been recorded that ''clause reduction'' was carried out and after that, the plaster was casted. From these documents, it is made out that the factum of fracture was discovered first time on 05.02.2000 when the x-ray was done. It is not understood as to why the x-ray examination was not conducted when the patient came to the doctor on 20.01.2000 itself. Given the condition of the patient when his two bones were fractured, it is felt that as a specialist in Orthopaedics, the doctor should have got the x-ray conducted on the first day itself when the patient came to him on 20.01.2000. The condition of the bones and fracture, if any, could have been known only if the said examination had been done on that day. It has not been pleaded anywhere by the OP doctor as to why he failed to assess the exact condition of the patient regarding fracture in the bones on 20.01.2000 itself. It has also not been made clear anywhere in what condition the patient was there during the period 20.01.2000 to 05.02.2000 i.e. over a period of 15 days. Had proper assessment about the condition of fracture been made on the first day itself, the doctor could have started treatment like putting the patient on traction etc. or could have ensured that the patient had complete bed rest. By simply advising the patient to come for dressing from time to time for healing of the wound, does not seems to be in order in the light of the fact that two bones of the patient were found fractured after about 15 days. In as far as his contention about the stay at the nursing home is concerned, the complainant has attached affidavits of certain persons from the public in support of his version that he remained admitted at the nursing home. One of these persons says that when the complainant was relieved from the nursing home, he transported him back by his own tractor to his home. The State Commission have also brought out that the doctor had proper facility for the stay of the insured at his nursing home. On the other hand, there is no documentary evidence to show that the complainant remained admitted at the nursing home of the doctor for about four months. However, the basic issue to be decided in the present case is whether any negligence was shown by the doctor in the treatment of the patient. The issue whether he stayed at the nursing home or not is of secondary importance.

In the consumer complaint, the complainant mentioned that he had paid a sum of Rs. 16,000/- for his stay at the nursing home, in reply to which, the OP stated that he had paid a sum of Rs. 1,600/- only and a copy of the receipt had been placed on record in which the payment of Rs. 1,600/- had been mentioned in words also. Keeping in view the documentary evidence, the version of the OP in this regard cannot be disbelieved.

The subject of medical negligence has been discussed in detail in many landmark judgments made by the Hon''ble Supreme Court of India and also by this Commission. In fact, the learned counsel for the appellant during the course of arguments, has submitted copies of the following judgments in support of his version:- 1. 1957 (2) All E.R. 118, Bolam vs. Friern Hospital Committee .

2010 (3) SCC 480, Kusum Sharma vs. Batra Hospital. 3. Order passed by this Commission on 26.05.2010 in Original Petition No. 85/1998, Ajay Kumar Singh vs. Dr. (Lt. Col.) B. P. Singh .

Halsbury''s Laws of England 5 th Ed. 2011 Vol. 74

Order passed by this Commission on 24.07.2002 in Beena Garg vs. Kailash Nursing Home & Ors .

It has been stated in Halsbury''s Laws of England, 5 th Edition 2011, Vol.-74:- "24. Degree of skill and care required. A medical practitioner is required to meet the standard of the ordinary skilled practitioner exercising and professing to have the special skill in question."

In Bolam vs. Friern Hospital Management Committee (supra) , it was stated as follows:- "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 at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

Further in Kusum Sharma vs. Batra Hospital (supra) , the Hon''ble Supreme Court laid down certain basic principles while dealing with the cases of medical negligence, which, inter-alia, state as follows:- 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.

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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.

Although the above case law have been mentioned on behalf of the OP doctor, pleading that the doctor was not guilty of any medical negligence, a glance at the facts and circumstances of the case would indicate that based on the legal principles laid down in the above cases, the OP doctor was expected to exercise a reasonable degree of care, expected from an ordinary skilled man. In the present case, as indicated above, the OP doctor is a specialist in Orthopaedics. It was expected from him that he should have carried out proper examination of the patient including the x-ray examination etc. when the patient came to him first time on 20.01.2000. The said x-ray examination was, however, conducted after full two weeks, when it was discovered that the patient had fracture in two bones in the lower leg. Had proper diagnosis been made on the first day itself, proper treatment could have been started from that day onwards. It cannot be stated with certainty whether the end result would have been better or otherwise, but whatever was expected from a doctor/specialist in his field, does not appear to have been done. The OP doctor is, therefore, guilty of medical negligence on this score as he failed to exercise reasonable care of the patient expected from a professional like him. I have, therefore, no reasons to differ with the findings recorded by the State Commission that the doctor is guilty of medical negligence in this case.

In so far as the quantum of compensation is concerned, the State Commission have awarded a sum of Rs. 3 lakhs as compensation to the complainant. Looking at the disability factor of the complainant and certificate given by the Chief Medical Officer, it appears that the said compensation is on the higher side. The ends of justice would be met if a compensation of Rs. 1 lakh is given to the complainant under the facts and circumstances of the case. The present appeal is, therefore, partly allowed and the compensation of Rs. 3 lakhs, awarded by the State Commission is reduced to Rs. 1 lakh and the same shall be payable within one month of the receipt of this order, failing which the appellant shall have to pay interest @ 12% p.a. on this amount. There shall be no order as to costs.