LAXMI NARAIN vs ESHITA NURSING HOME AND AMISH X-RAY

THIS is an appeal against the judgment and order dated 8.2.1999 passed by District Consumer Forum, Varanasi in Complaint Case No. 67/1997.

THE facts of the case stated in brief are that the complainant felt sudden pain in the right knee on 5.12.1994 and the pain went on increasing. After the pain, he went to opposite party No. 2 Dr. A.K. Pandey for treatment on 7.12.1994. On that date he was advised for a X-ray and was given one medicine. THE X-ray of the left knee was got done on that day and after this was done, the X-ray was shown to the opposite party No. 2. According to his treatment the medicines were taken by the complainant but pain went on increasing. THErefore, the complainant again visited Dr. A.K. Pandey, opposite party No. 2 who injected a medicine. THEreafter he was advised again to have another injection on 8.1.1995. THE complainant met the doctor concerned on 20.12.1994 and on that date the medicine was changed but the complainant did not get the relief after taking medicine. Thereafter, the complainant on 26.12.1994 consulted Dr. A.N. Verma who told him that there was some complication on account of injected medicines. On the advice of Doctor Verma, the complainant got his treatment and ultimately got the Ultrasound done on 13.1.1995 and then he was advised for operation. On 14.1.1995 the complainant was shown to Dr. S.C. Gaur. Thereafter on the same day Dr. Gaur performed operation and the complainant remained admitted in the Nursing Home upto 2.2.1995. Thereafter on the advice of Dr. Gaur, he consulted Dr. A.P. Singh who told him that the medicines will have to be taken for one year. According to the verbal opinion of these Doctors, the injection given by Dr. A.K. Pandey had an adverse affect on account of which the whole of the leg developed pus. It is alleged that the complainant suffered mental tension and torture and the defects occurred on account of negligence of Dr. A.K. Pandey. He has, therefore, claimed a sum of Rs. 80,000/- as compensation and Rs. 1,00,000/- on account of mental tension and torture and other expenses. He claims total amount of Rs. 1,80,000/-.

The opposite party No. 2 Dr. A.K. Pandey in its written version has alleged that the complaint has been filed only to harrass and to pressurise for getting illegal advantage. After examining the knee of the complainant, the complainant was given medicines and was also advised for exercise. On 18.12.1994 he has been injected a medicine and also advised for another injection after some days but the complainant did not turn up. It is alleged that he gave a correct medical treatment to the complainant as the symptom were of Osteoarthritis. The symptom of which are severe pain, swelling and collection of fluid in the joints.

THE parties led evidence before the learned District Forum who after considering the case of the parties, dismissed the complaint holding that there is no negligence on the part of Dr. A.K. Pandey. Aggrieved against this order, the complainant has come in appeal and has challenged the correctness of the order passed by the learned District Consumer Forum.

WE have heard the learned Counsels for the parties. The learned Counsel for the appellant has argued that Dr. A.K. Pandey, opposite party No. 2 has given a wrong treatment by injecting injection. According to the complainant, he consulted other doctors who told him that the injection given by Dr. A.K. Pandey had adversely effected. On these given facts we have to see whether the doctor was negligent in performing his duty. The Hon''ble Supreme Court in the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole & Ors., AIR 1969 SC 128, had considered what the duties a doctor has to perform. In para 11, the Supreme Court held as under : "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." Then as to the duty of the doctor, the same para states : "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 (e.g. Halsbury''s Volume 26, page 17). The doctor no doubt has a discretion in choosing treatment which, he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."

These views were reiterated by the Hon''ble Supreme Court in the case of Achutracharibhau Khodwa & Ors. v. State of Maharashtra & Ors., II (1969) Supreme Court Cases 634. It was held by the Hon''ble Court as under : "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one."

THEN in paragraph 14 of the said judgment the Supreme Court observes : "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 the 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 deligence 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."

THUS from the observations of the Hon''ble Supreme Court, it is clear that the Courts should not presume negligence on the part of the doctor if the doctor has performed his duties to the best of his abilities and with due care and caution. It is just possible that the medical opinion may differ on certain points, but if the doctor had done his duty with due care and attention, then no negligence should be attributed to him. There is no evidence or record to show that the doctor was negligent in performing his duties. No prescription of Dr. A.K. Pandey has been filed in order to show that treatment was given by him. In such cases the injection of Corticosteroids is given for relieving pain. Opposite party No. 2 Dr. A.K. Pandey has given the photostat copies from the book of Samuel L. Turek, M.D. From the book of 4th Edn. Orthepaedics, Principles and their application Volume-2 published by J.B. Lippin Cott Company, Philadelphia, London Mexico City, New York. In this book, the causes, pathology, clinical picture of the knee have been given. The treatment has also been given. The conservative treatment consisting of the injection of Corticosteroids at weekly intervals among other was given. Exercise etc. were also prescribed. Thus the injection which was given by the doctor was of Corticosteroids and it is prescribed injection. It cannot be said that the doctor who has given this injection had done any wrong to the complainant because it is one of the methods which is applied by the doctors. The other method given is surgery. The operation of the knee was later on done by the other doctors.

According to the complainant, the other doctors later on performed surgery and treated the knee joint said that the injection given by the Dr. A.K. Pandey had caused this complication. The opinion of those doctors is not on record and there is no evidence on record to support this allegation. Therefore, we are unable to agree with the view of the complainant that the corticosteroids injection which was given by Dr. A.K. Pandey to the complainant was not the treatment which was to be given in such cases. Thus we find that this appeal has no force and is liable to be dismissed. Order The appeal is dismissed. The judgment and order of the learned District Consumer Forum are confirmed. There will be no order as to cost. Let copy of this order be made available to the parties as per rules. Appeal dismissed.