MAHABIR vs C D Sharma

THIS revision petition has been filed by Mahabir (hereinafter referred to as the ''Petitioner '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ''State Commission '') in First Appeal No.746 of 2004 which was decided in favour of Dr.C.D. Sharma, Respondent herein.

IN his complaint before the District Forum, Petitioner has contended that he had taken his daughter, Seema(Beena) aged 15 years to the Respondent ''s hospital after she had sustained an injury in her right arm and after examining her, Respondent advised that an operation would be required to remove a piece of bangle might which was embedded in her arm. Petitioner ''s daughter was admitted in the hospital on 11.10.1998 and a operation was conducted on her by the Respondent on 18.12.1998. Thereafter, Petitioner visited Respondent ''s nursing home regularly for bandaging and dressing the wound of his daughter upto 18.01.1999 and he spent Rs.20,000/- on the medical treatment. On 27.01.1999, it was noted that there was some problem at the operation site and another operation was performed after which some wooden broom sticks were wrongly inserted in the arm of Petitioner ''s daughter. Petitioner thereafter consulted another doctor, Dr.Sanjiv Pathak and the said doctor daily removed 30 to 35 broom sticks from the wound which had become infected. Petitioner spent another Rs.10,000/- on removal of these sticks and apart from financial loss also suffered mental agony, harassment and inconvenience. Alleging medical negligence, deficiency in service and also unfair trade practice on the part of the Respondent, Petitioner filed a complaint before the District Forum requesting that Respondent be directed to pay him compensation of Rs.1 lakh on account of mental agony and financial loss caused to him with interest @ 24% per annum as well as litigation and other relief as deemed appropriate. The above contentions were denied by the Respondent/doctor who while admitting that Petitioner ''s daughter was brought to him following an injury in her arm stated that no operation was conducted on Petitioner ''s daughter either on 18.12.1998 or thereafter and that she was given treatment as an outdoor patient when she came and no fees were charged from her. Further, it was the Respondent who advised the petitioner to take his daughter to the Medical College Hospital in Rohtak since she would require surgery. There was no question of the Respondent inserting any broom sticks at the site of the injury as alleged.

THE District Forum after hearing both parties allowed the complaint and directed Respondent to pay Rs.1 lakh to the Petitioner as compensation for deficiency in service. The relevant part of the order of the District Forum is as follows: "From the statement of Dr.Sanjiv Pathak, it is abundantly clear that there were some piece of wooden broom sticks in the arm of the complainant which were not removed by the respondent and for the removal of the said wooden broom sticks, the complainant had to rush to Dr.Pathak, who as per his statement removed two wooden sticks measuring 2.5 and 3.25 cms. So, it is clear from the record as well as from the statement of Dr.Sanjiv Pathak, that the respondent doctor was negligent and careless while treating the complainant ''s daughter. In the opinion of this Forum, the respondent is certainly liable to compensate the complainant for rendering deficient service to the complainant and for causing mental agony, harassment and humiliation to the complainant and his daughter. "

AGGRIEVED by this order, Respondent filed an appeal before the State Commission which allowed the same and set aside the order of the District Forum. The observations of the State Commission in support of its finding are reproduced: "It appears from the record that the District Forum has given much important to the statement of Dr.Sanjiv Pathak, who came to the picture when he had examined Beena daughter of the complainant on 27.01.1999 with history of foreign body in her right forearm and a wound was noticed at the site. On examination he found that the wound had a sinus at the right forearm and for that reason X-ray of the right forearm was carried out on 27.01.1999 which revealed a linear Radio Opque Shadow in the middle of the limb. He admitted that he had not been shown any treatment of Shanti Hospital, which is the name of the hospital of the opposite party. He further stated that surgical intervention as per record was carried out because from a foot note only removal of two wooden sticks measuring 2.5 and 3.25 cms. is indicated. He also noticed that in the OPD ticket it was also mentioned that the bangles pieces could not be removed. He further admitted that he was not able to comment on the efficiency or deficiency on the part of Dr.C.D. Sharma. He further admitted that without going through the documents/original record of Shanti Hospital, he could not say about any surgical intervention. Dr.Sanjiv Pathak has not rendered any definite opinion about the negligence of the opposite party. At the same time, the fact remains that it is he who had removed the bangles pieces from the arm of Beena. The statement of Dr.Sanjiv Pathak, as a whole would not in any manner establish that it is Dr.C.D. Sharma, who was in any manner responsible for the insertion of foreign body like sticks in the right arm of Beena. It appears that Mahavir complainant was himself unsure with regard to the nature of treatment given to the patient. ... ... ... ... ... ...Nowhere it has been alleged by him in Para No.5 of the complaint that he had ever noticed any broom sticks being put in the wound by the opposite party. The District Forum has totally ignored the affidavits of Om Prakash and Ved Prakash placed on record which had fully supported the version of the opposite party. From the discussion of the above evidence, it has not been established that the daughter of the complainant remained admitted in the hospital of opposite party from 11.12.1998 to 18.12.1998. It is also not established on record that any operation was conducted by the opposite party on 18.12.1998 and that he had got any fee from the complainant for the dressing given to his daughter from 11.12.1998 to 19.01.1999. "

Hence, the present revision petition. Counsel for both parties made oral submissions. Counsel for Petitioner stated that the State Commission erred in not taking into account the evidence of Dr.Sanjiv Pathak, a renowned doctor, who confirmed before the District Forum that he had taken out 20 to 30 broom sticks of about 2 cms. size each during daily dressing of the wound. Since the patient was treated initially in the Respondent ''s nursing home at Gohana where she also had undergone surgery in which some wooden sticks were removed, it was obvious that these sticks were either inserted or were not properly removed during that surgery. Respondent was thus clearly guilty of medical negligence and deficiency in service in treating the patient.

COUNSEL for Respondent on the other hand stated that as rightly observed by the State Commission, there is no evidence on record to show that the Petitioner ''s daughter was admitted in Respondent ''s hospital from 11.12.1998 to 18.12.1998. This is also confirmed by the documented case history of the Petitioner ''s daughter which clearly indicated that she was only an outpatient in the hospital and despite being advised admission, she did not get herself admitted in the said hospital. This fact was also corroborated by the affidavit of the attendant, Ved Prakash, uncle of the patient. Counsel for Respondent further contended that Dr.Sanjiv Pathak in his statement before the District Forum has not made any allegation that there was any negligence or deficiency in service on the part of the Respondent and though he stated that a number of broom sticks were found in the place of the existing sinus, it was nowhere stated that these were inserted by the Respondent/doctor. District Forum, therefore, wrongly interpreted the statement made by Dr.Sanjiv Pathak and concluded that this was a case of medical negligence whereas no credible evidence to this effect was produced before the District Forum. In fact there is evidence to the contrary that the patient was given proper medical treatment and medicines in the Respondent ''s clinic as also proper medical advice which Petitioner did not heed.

WE have heard the learned Counsel for both parties and have gone through the evidence on record. The fact that Petitioner took his daughter to Respondent ''s nursing home in respect of her wound/injury sustained by her about 3 years prior to the incident is not in dispute. A perusal of the OPD slip of the Respondent ''s hospital which was filed in evidence documents the case history of the patient that she had visited the Respondent ''s nursing home because the injury in her forearm had got infected and although she was given medication and two wooden sticks were also removed through a minor procedure, she was not admitted in the Respondent ''s nursing home nor did she undergo any surgery. The case history also notes that the bangle piece which was inserted deep down could not be removed and, therefore, Petitioner was advised to visit the PGIMS Hospital, Rohtak to get this surgically removed. This fact is confirmed by the statement of the patient ''s uncle who accompanied her during the treatment and who stated on oath that he was satisfied with the medical treatment. The District Forum while allowing the complaint had reached a conclusion to the contrary essentially based on the evidence of Dr.Sanjiv Pathak to whom the patient was taken for a surgery for removal of the bangle piece. We have carefully perused the affidavit (Annexure-P3 of the paper-book) filed by Dr.Sanjiv Pathak and he has nowhere stated that the sticks were inserted during any surgery conducted by the Respondent. He merely stated that she was brought to his hospital with chronic discharge of sinus in the right forearm with wooden broom sticks which he removed along with a bangle piece. We further note that an affidavit of one Om Prakash who was a helper of his father, a retired Vaidya to whom Petitioner had taken his daughter for a check-up has confirmed that the patient was never admitted in Respondent ''s hospital and that she only went there to get her wound cleaned and dressed after two pieces of broom sticks were extracted from her forearm through a minor surgery. The State Commission had concluded that in view of the above facts, no case of medical negligence was made out against the Respondent. The patient had been treated by Respondent as an outpatient only and was never admitted in his hospital for surgery following removal of two broom sticks. For the aforesaid reasons, we are in agreement with the finding of the State Commission based on facts and proper appreciation of evidence filed before it that there was no medical negligence on the part of the Respondent in treating the Petitioner ''s daughter and we uphold the same. This revision petition is therefore dismissed with no order as to costs.