Naveen Agrohi vs Shri Parvas S/O Shri Rashid

THIS revision petition has been filed under Section 21(b) of Consumer Protection Act,1986 against the order passed by the Uttarakhand State Consumer Disputes Redressal Commission , Dehradun (hereinafter State Commission) in First appeal No89/2007 on 19/03/2012

THE facts of the case, in brief The Complainant Mr Parvas sustained severe injuries due to his scooter accident on 28.07.2003 while going to Roorkee. Some of people on road took him to the nursing home of Opposite party -Dr. Naveen Agrohi and got him admitted there. Dr. Naveen Agrohi, took x-rays of right leg and diagnosed that there was fracture of right leg of the complainant. The doctor operated upon the leg and implanted a rod/plate in it. After the operation, the complainant complained of severe pain in his leg. The OP took the x-ray of the leg after four days and told that the bolts used for fixing the rod/plate had loosened. The doctor again operated the leg and replaced the bolts for which again Rs 1000/- was paid by complainant apart from more than Rs. 15,000/- which he had already spent in the first operation. He remained in the nursing home for 23 days and paid Rs. 4,000/- for medicines, Rs. 4,200/- for 7 bottles of blood during this period. On the day of discharge the complainant complained of the pain in the leg, but the doctor assured him that it would subside gradually, but the pain persisted. When he went to the doctor and complained him of the severe pain, he took the x-ray of the leg and told that the bolts had broken due to extra tightening of the plate. He remained in the nursing home for three days and the leg was kept in a stretched position with the help of a machine, but the pain did not subside. The doctor plastered the leg this time, but the complainant could not get any relief. The complainant consulted another doctor named Dr. Ajay Kumar of Roorkee, who took another X-ray and diagnosed that the leg was not properly operated. The complainant took this new x-ray plate to the opposite party who did not listen but scolded him. As a result, he went to Safdarjang Hospital, New Delhi on 29.01.2004 for treatment. He remained there up to 23.02.2004 and spent a sum of Rs. 40,000/- on treatment. Due to the negligence of Dr. Naveen Agrohi, his right leg got shortened and started limping. This led the complainant to file a consumer complaint before the District Forum, Haridwar and the District forum allowed the complaint and directed the opposite party to pay to the complainant a sum of Rs 40,000/- towards the expenses incurred by the complainant in his treatment, Rs. 25,000/- as compensation and Rs. 1,000/- towards cost of litigation expenses within a month from the date of the order. Against the order of district forum respondent filed a FA 89/2007 in the state commission. The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the appeal by observing as follows: The learned counsel for the appellant vehemently pleaded that the appellant - doctor has not committed any negligence in the treatment of the respondent - complainant. According to him, the respondent had recovered and the fractured bone had healed up. However, for post-operative care, he was advised to visit the appellant after 40 days from the date of discharge, but he failed to do so. On 25.10.2003, he slipped in the bathroom and suffered another fracture in the same leg. He was again treated for the same and was advised to take some medicines as well to do some exercises. But the respondent, instead of adhering to the appellant ''s advice, went to Safdarjang Hospital, New Delhi. The learned counsel argued that if the respondent had started limping after the treatment received from Safdarjang Hospital, then the appellant should not be blamed for the limpness. The learned counsel further pleaded that the respondent failed to produce any expert evidence in support of the allegations made against the appellant ". State commission relied on several judgments of National Commissison - 1. Sarangapani vs. Bone and Joint Clinic; 2008 (1) CPR 380 (NC). 2. Mohd. Istiqar vs. Dr. Rajesh Gupta; 2005 (1) UC 401. 3. V. Mohan Rao vs. Miot Hospitals and Anr. ; 2008 (1) CPR 15 (NC) 4. Abdul Gaffar vs. Dr. Dinesh Sharma and Ors.; 2010 (1) UAD 357. 5. Anil Kumar Gupta vs. Dr. Mukesh Jain; 2008 (2) CPR 213 (NC).

The dispute is with regard to the negligence committed by the appellant in conducting this surgery. According to the respondent, while implanting the rod/plate, the appellant had not properly tightened the bolts. The bolts got loosened and the appellant had to re-operate the leg just after 4 days of the first operation. Again, when the respondent complained of pain in the leg, he was told that the bolts had broken as these were tightened more. But the appellant has not accepted these averments made by the respondent. In contra, the appellant has averred that he had done dressing of the leg after 4 days of the operation and had not conducted any surgery as alleged by the respondent. According to the appellant, the fractured bone had healed up. If any complication had arisen, it was due to sustaining injuries on 25.10.2003, when the respondent slipped in the bathroom. He visited the appellant, who after making necessary investigation, put him on traction. However, the respondent did not adhere to the appellant ''s advice and went to Safdarjang Hospital, New Delhi. If he started limping after recovery then it may be due to some negligence made in treatment by the doctors of the Safdarjang Hospital and it should not be correlated with the surgery conducted or treatment given by the appellant. The respondent remained in the nursing home of the appellant from 28.07.2003 to 19.08.2003. The surgery was conducted on 02.08.2003 and, as alleged by the respondent; he was re-operated after 4 days for tightening the bolts. According to the appellant, he had done only dressing and not a re-operation. If it was a dressing of the wound, then it should have been in a regular manner and hospital ''s record should show it, but no such evidence has been produced by the appellant. The appellant ''s contention that the respondent was advised to visit after 40 days and he had not adhered to the advice of the appellant, is also not tenable because Paper No. 54 shows that the respondent had visited the appellant on 20.09.2003. The contention of the respondent that the pain persisted gets support because the appellant has prescribed some medicines for pain.Even after three months, the respondent ''s leg had not healed up completely because the same right leg had sustained injury. The respondent ''s fall while walking cannot be said incidental, but certainly it was because of the fact that he was unable to walk properly. The complication in the injured leg aggravated and after three months, he decided to go to Safdarjang Hospital, New Delhi. He remained there from 19.01.2004 to 23.02.2004. The surgery conducted and treatment given by the doctors of the Safdarjang Hospital, New Delhi could ultimately help the respondent because he has not alleged any complication after this treatment except some limpness while walking. Therefore, in this case, we are of the well considered view that the facts of the case speak for themselves and, therefore, the principle of res ipsa loquitur will apply as laid down by the Hon ''ble Supreme Court in the case of Savita Garg vs. National Heart Institute; (2004) 8 SCC 56 and which has also been relied upon by the Hon ''ble National Commission in the case of Saroj Chandhoke vs. Ganga Ram Hospital & Anr.; III (2007) CPJ 189 (NC). The case laws cited by the learned counsel for the appellant cannot help him because the facts of above cited cases are quite different from the facts of the instant case. So far as the sum awarded by the District Forum as cost of treatment, compensation etc. is concerned, it cannot be said to be on the higher side, keeping in view the plight of the respondent as revealed from the facts of the case and, therefore, the order impugned does not require any interference. For the reasons aforesaid, the appeal is dismissed and the order passed by the District Forum, Haridwar is confirmed. No order as to costs. "

LEARNED counsel appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the State Commission. I have carefully considered the entire materials placed on record and the contentions of both the parties and also arguments as also referred the Medical Literature.

THE petitioner is a qualified orthopedic surgeon MBBS,D.Ortho. On perusal of the hospital case paper which clearly shows that he has diagnosed this case as Right Sub-trocantric fracture and performed the necessary operation with the skill and care. The said DHS operation (Dynamic Hip Screw ) is the most preferred treatment which every orthopedic surgeon performs for Sub trochantric fracture. He performed dressing only on 4th day and the allegations of reoperation are baseless. It is to be noted that complainant fell in the bathroom and due to which again the pain exaggerated and the screws are broken or loosened. Even otherwise it is most important on the part of patient to follow up advice of doctor that is strict rest and no weight bearing for at least 4 weeks. Therefore, if the patient did not follow the instructions there are likely chances of breaking of screws. The complainant did not prove the mere averments made in the pleadings like broken screws or shortening of leg. The state commission opined that the leg was not operated properly, therefore the respondent given only pain killers to the complainant. I have perused admission and discharge record whereas there is no document or any evidence which proves the negligence of the doctor. DHS surgery require lot of post operative care since healing of sub-trocahntric fracture takes lot of time. The respondent instructed the complainant to walk with support.

THE complainant thereafter visited Safdurjung Hospital. The hospital records of Safdurjung Hospital did not mention about wrong treatment during first surgery but they have corrected the treatment by removal of implant and done ORIF (Open Reduction with Internal Fixation) which is also another line of treatment in such cases. The State Commission also did not point out or mention about shortening of leg. The issue medical negligence is now well established by number of judgments of this commission and Hon ''ble supreme court. I rely upon an authority " Martin F. D ''Souza vs. Mohd. Ishfaq AIR 2009 SC 2049 " the Hon ''ble Apex court observed that "Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse ". The another authority in the case decided by this CommissionIn Gaurav v Escorts Medical Centre Ltd and Anr. CPR 182 (NC) which observed that "Medical opinion may differ with regard to course of action to be taken by a doctor treating a patient, but as long as a doctor acts in manner which is acceptable to medical profession and Court finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold doctor to be guilty of negligence ". In another case Dr. Biswanath Das v Bijoy Sinha Roy and Ors 2008 (1) CPR 282 (NC) this commission observed as "The doctors have acted in accordance with the practice accepted as proper by the authors of medical books cannot be held guilty of negligence. "

IT is submitted that the good results in an operation can only be achieved after proper follow-up and compliance of necessary instructions given by the Doctor to the patient. Therefore, a Doctor cannot be held negligent if he has performed the operation according to standard norms and medical practice, but thereafter patient should take due care of himself. It is submitted that in the present case, it is clear that the Respondent/ complainant had not taken due care of himself as per the instructions and advices given by the Petitioner. It is evident from the fact that Respondent suffered fall in the bathroom leading to DHS plate ''s screws broken. Therefore, in my opinion there is no negligence on the part of appellant who has done DHS operation. DHS is the most suitable implant for these fractures cited in Indian Journal of Orthopedics Vol. 34 No. 2 of April, 2000. This treatise enforces the fact that long plate DHS is the best treatment for proximal femoral fractures which was administered to the Respondent/Complainant by the Petitioner. It is submitted that the DHS method of treatment for the past many decades since Dynamic Hip Screw (DHS) began in the 1950s, that DHS allows not only stable fixation of anatomically reduced trochanteric fractures but also a guided collapse and impaction of the fragments in the unstable fracture. The implant will therefore slide distally (remote) and laterally until a new area of bony support is reached. The fracture will usually unite in spite of some shortening of leg. Hence, the State commission ''s judgment failed to appreciate the medical treatises in proper perspective. The State Commission and DF erred herein because both have made observations only based on mere presumptions in absence of any proper evidence, even there is no document to show the complainant spent more than Rs.40000/-. Therefore, I conclude by allowing this revision petition. No costs.