PREM LUTHRA vs IFTEKHAR

THIS is an appeal against the order dated 9.9.2003 passed by the District Forum, Hardwar whereby the complaint of the complainant Sh. Iftekhar was allowed for a sum of Rs. 75,000/- (Rupees seventy-five thousand) as cost of medicine and compensation along with cost of litigation of Rs. 1,000/- (Rupees one thousand).

THE order under appeal was passed by the major Bench of the Forum consisting of President of the Forum and one Member while Sh. Manoj Kumar Goyal, another member gave a dissenting order by which he propounded that the complaint should be dismissed. However the majority view is the view of the Forum, therefore, the opposite party Dr. Prem Luthra filed the present appeal. The brief facts of the case are that Sh. Iftekhar filed a complaint before the learned Forum with the allegations that he had got pain in the paw of his left leg. On 16.6.2001 he went at the nursing home of Dr. Prem Luthra, Luthra Nursing Home who examined the complainant after charging a fee of Rs. 50/- (Rupees fifty). He advised for the X-ray of the affected portion and after deposit of Rs. 80/- (rupees eighty) the X-ray was done. The X-ray was not clear. Therefore, he advised for another X-ray. On payment of Rs. 80/- (Rupees eighty), it was again done and after examination of X-ray, he told that there was fracture in the leg. He said that he has to be operated upon. The treatment went on for 15 days. The doctor charged Rs. 50/- (Rupees fifty) per day. There was also blood test for which Rs. 150/- (Rupees one hundred fifty) were taken. On 9.7.2001 the opposite party admitted the complainant in the nursing home for operation and charged a sum of Rs. 6,000/- (Rupees six thousand). On the next day there was operation and a steel rod was kept in the paw. It is said that the operation was not done by stylized instruments and the doctor did not take proper care and attention in the operation. The complainant was discharged and he was called regularly. After 20 days after the injuries were filled in, the plaster of the paw of the leg was done and Rs. 650/- (Rupees six hundred fifty) were charged. After the plaster the complainant went to the doctor for months. A frame was tied for which a sum of Rs. 500/- (Rupees five hundred) was charged by the doctor. After the frame the complainant could not even move. After about 2 months the plaster was cut down and a fee of Rs. 200/- (Rupees two hundred) was charged. After 15 days of removal of plaster, the rod was removed for which a sum of Rs. 500/- (Rupees five hundred) was charged. Even after taking out the rod pain of the complainant persisted. The doctor assured that it shall vanish. He used to charge Rs. 500/- (Rupees five hundred) for medicines. On 11.10.2001 the complainant went to Shardhanand Charitable Hospital, Kankhal, Gurukul Kangri where he was examined. The doctor informed that there was no need of operation, the operation has been done unnecessarily. On 26.11.2001 the complainant got the X-ray in Ratan Bharat Diagnostic Centre, Hardwar who informed that the bone of the paw is week. He advised to get the treatment of Dr. Mukesh Jain of Muzaffarnagar. On 26.12.2001 the complainant went to Dr. Mukesh Jain who advised for the C.T. Scan of the paw. The complainant got the C.T. Scan on 5.1.2002 at Jeevan Prakash Hospital, Muzaffarnagar. The complainant got himself examined by Dr. S.U. Khan who told that the bone has been totally damaged. The complainant again consulted Dr. Mukesh Jain who confirmed the view of Dr. S.U. Khan. On 30.1.2002 the complainant met Dr. J.N. Sinha of Roorkee who advised for X-ray and in this X-ray also the bone was found to be totally damaged. It is alleged in para 18 of the complaint that operation was done by the doctor after misrepresenting the facts and he was careless and negligent in the operation due to which the complainant has become permanently disabled. On these grounds the complainant filed the complaint.

The opposite party, hereinafter called the appellant, contested the complaint and partly admitted the allegations of the complaint and partly denied. He however admitted that the complainant was seen by him and he had operated and gave the best possible treatment and also conducted the operation in the manner best suited to the complainant. He alleged that he has got no medical store. He further alleged that the leg of the complainant was damaged from before and he has also got the treatment before. He was informed that the operation is no guarantee of permanent cure but still his brother asked for the operation, then the operation was done in Triple Arthrodesis manner which is prescribed for the injuries and pain like this. He has alleged that the brother of the complainant has given in writing that there was no negligence on the part of the doctor.

AFTER taking the evidence of the parties and hearing them, the learned Forum allowed the complaint. Against which order the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. We will first take the allegations of the complaint themselves. It is cordial principle of law that one who seeks justice must do justice and for seeking justice if he goes to Courts he should go with true facts and clean hands. If the facts are incorrect and the hands are not clean, the complainant is not entitled to any relief. In this light if we examine the complaint, we will find that in para 1 of the complaint, it is alleged that the complainant has got pain in paw of his left leg. Why there was pain from when there was pain has not been written in the complaint? The learned Counsel for the complainant on the allegations of the appellant argued that the doctor has fabricated papers to show that the complainant was suffering from pain and had got fracture from before 2 and a half years. May it not be 2 and a half years but from when it was, was the duty of the complainant to be explained. Even if it is taken to be from before 6 months, why it was, so should have been there in the complaint. When we enquired from the complainant who was present at the time of hearing, he informed that before 6 months of the date on which he visited Dr. Prem Luthra, his left leg had mold of the paw which was twisted and, therefore, there was pain. Naturally if it is twisted and molded there should be cracks and fracture and naturally if there were cracks and fracture, the complainant must have got treatment somewhere. He did not produce any such paper of any X-ray, examination, treatment, etc. From the reading of the entire complaint it is clear that at least the complainant did not say that there was no fracture in his leg. He only said that subsequent doctors advised that there was no need of operation and the operation has been done unnecessarily but he did not say that none of the doctors said that there was no fracture. If there was a fracture, how it can be treated, the person who examines the fracture is the best Judge and if he is a qualified person and takes the decision which is the best suited in the circumstances of the case, then if the line of treatment is correct but if fails then also he cannot be held to be guilty. Casually there are allegations regarding the charging of fees of X-ray, treatment, consultation, purchase of medicines but on inquiry it was revealed that no receipt was filed before the Forum. Even the doctor has been made guilty of giving the medicines from his own shop but receipts of the purchase of such medicines have also not been proved. Although in the written statement the doctor has denied that he was having any chemist shop. If in the letterhead he has written that he is giving facility of Chemist shop, that will not show that he is the owner of the shop and he is selling medicines himself. There may be a Chemist shop in his premises on rent. Anyway the doctor has done the operation, given the treatment. It is alleged in para 6 of the complaint that the doctor did not operate with sterilised instruments and he did not take care and attention, which he ought to have taken. This is first negligence which is said to be against the doctor but this is falsified from the very fact that only after one para of the complaint, in para 8 the complainant has alleged that after 20 days of the operation when the injury was healed up, the plaster of the leg of the complainant was done. This is an admission that the injury was healed up. It is further admitted that there was no septic, etc. Then how it can be said that the instruments were not sterilised. Had the instruments been infected necessarily septic was possible but after the operation the injury was healed up. Thus from the bare reading of the own allegations of the complainant, the theory of first negligence is falsified.

NOW the main question, in the case of doctor''s negligence, is, what the doctor should have done which he did not do, and also what he should not have done which he did. If the case does not fall on this base, the case of alleged negligence is not proved. It is said in para 14 of the complaint that on 11.10.2001 the complainant went to Shardhanand Charitable Hospital where he was informed that there was absolutely no need of operation and the operation has been done without any need. The prescription dated 11.10.2001 issued by Shardhanand Charitable Hospital only shows an old malunited fracture. There is nothing in this report to show that there was no need of operation and the doctor has unnecessarily done the operation. The reports of other doctors have only said malunited fracture, etc. but no doctor has ever said that there was no need of operation and it has been unnecessarily done. In this light we have to see the literature on the subject. In Chapter 51 of Campbell Textbook of Operative Orthopedics, in heading Old Reduced Dislocations, it has been written that any dislocation should be reduced as soon as possible. It is further written that when old unreduced dislocations are finally reduced, normal and painless joint motion and function should not be expected. Even if we take the worst case that the trouble was there from before 6 months only then also it has become old and the authority says that even after operation it should not be expected to be normal and painless. In this book, it is further written that even if 2 or 3 weeks have passed since the injury, then also manipulation should be done very carefuly. According to this literature, the delay of 2 or 3 weeks is not proper. The method of treatment has been written in this literature, old unreduced dislocation of the metatarsal and subtarsal joints are best treated by Triple Arthrodesis, which has been done, particularly in this case by the present doctor. At page 2018, it is written that pain and disability often persist and again it is written that Triple Arthrodesis system is the best for these types of injuries either fresh or malunited. The complainant nowhere said that there was no fracture earlier when he visited the doctor. He has only said that the doctor has done the operation unnecessarily without any need but it is to be remembered that for the first time he went to the doctor on 16.6.2001, he was examined by the doctor and then he was advised for X-ray. The operation was done on 9.7.2001. It means that from 16.6.2001 to 9.7.2001 the complainant has got enough time to think over the matter and it is clear that only when his pain persisted he went for operation, otherwise he would not have gone for operation. It is the complainant who has to prove the negligence of the doctor. If the doctor has adopted the right course of treatment and if he is a skilled person and if he has done the operation in the method and manner best suited to the complainant, he cannot be blamed if the patient was not 100% cured. The complainant has tried to blame the doctor merely on the ground that the fracture was malunited. We have already said above that there is no report of all the above doctors that it was due to the negligence of the doctor or for the reason that he has not taken proper care. Merely because the complainant has been given a disability certificate by the CMO or any other doctor, it cannot be said that the doctor was negligent. Because there are some cuttings in the papers, the learned Counsel for the complainant wanted to gain that the appellant has tried to manipulate papers. There is no question of any manipulation. The entire manipulation is said only in respect of period of injury. It is said that it was firstly written 6 months, then it was cut down and it was made 2 and a half years. Even if it is correct, this proves nothing except that there was previous injury to the complainant and even if it is taken to be 6 months then also in 6 months every fracture is not properly cured, it becomes malunited. In the literature above it is clearly said that even the delay of 2 or 3 weeks is dangerous, in this case the complainant himself has delayed the operation for 6 months.

SOME observations were also advanced regarding the keeping of chips of bones and method of treatment but there is no evidence of the complainant that the method adopted by the doctor was in any way defective or injurious to the complainant or should not have been adopted by the doctor.

COMING to the findings as recorded by the learned Forum, the learned Forum has held that in Annexures 2 and 3 instead of 2001, 2002 has been written, therefore, the original records have not been produced. The learned Forum forgot that such types of mistakes often occur. In 2002, the complainant was never treated by the appellant. The entire records were also with the complainant and the complainant has filed those papers. If the Forum wanted to see any original paper, it could have summoned it from the doctor but merely because there is incorrect year on certain papers, although there is no dispute regarding month and date or year of the treatment and operation, it cannot be derived that by this the doctor has become negligent in the operation or treatment of the complainant. The learned Forum has held that Dr. Mukesh Jain and Dr. S.U. Khan have told the complainant that there was no need of operation. There is nothing in the report of Dr. Mukesh Jain or Dr. S.U. Khan, if it was so they should have written it in their reports because the complainant has told it, the Forum has believed it. No affidavit of those doctors were filed. The learned Forum has further held that it can be presumed that operation was done without the permission of the complainant or his relations but the learned Forum did not peruse the complaint of the complainant wherein it is alleged in para 2 itself that on 16.6.2001 after X-ray the doctor told that there is fracture in the leg, it is to be operated upon, this advice was given on 16.6.2001. In para 4, it is alleged that there was blood test. The blood test is always done at the time of operation. It is alleged in para 5 that on 9.7.2001 the appellant admitted the complainant in his nursing home for operation and for operation he got the amount of Rs. 6,000/- (Rupees six thousand) deposited. If the complainant was not ready for operation, why he deposited this amount? If he deposited this amount, offered himself for operation, it cannot be said that there was no consent of the complainant for operation and the operation was done against his wishes. At page 9 of its judgment, the learned Forum has held that even if it is taken to be correct that operation was necessary treatment then also the C.T. Scan report shows that instead of being united, it has got more damage. That is no ground to presume negligence of the doctor. The report has been filed that the complainant was suffering from Tuberculosis. If it was so, from when he is suffering from Tuberculosis is not disclosed and if subsequently Tuberculosis has developed to him, any amount of treatment or operation shall not be fruitful unless the man is specifically treated for Tuberculosis. There is nothing on the record to show that the complainant has taken any treatment of Tuberculosis. On facts the learned Forum did not appreciate properly the evidence of the parties. Merely because the injury could not be cured and according to the complainant, the learned Forum has believed the doctor to be negligent. It is settled principle of law that the doctor treatment is never a guarantee for cure. It he has taken proper line of treatment and if he has given proper treatment and made proper operation, even if the victim dies, the doctor cannot be held to be guilty. We are supported by the ruling reported in I (2003) CPJ 57 (NC), Dr. Devendra Madan and Others v. Shakuntala Devi. In this case the patient was admitted in the nursing home of the appellant. His health deteriorated and ultimately the victim died. The National Commission held that no negligence or breach of duty on part of doctor is proved. The Hon''ble National Commission set aside the majority judgment of the State Commission and dissenting order of the President was withheld. In this particular case also there is nothing on the record to show what was the duty of the doctor and in what manner he has committed breach in that.

In the ruling reported in III (2000) CPJ 18 (NC), Smt. Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, the Hon''ble National commission has held that the doctor is not guilty of negligence, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. The doctor in this particular case is a master in surgery, in orthopaedics. He is running a nursing home. It is nowhere alleged that he is not a skilled man in his particular art. In this ruling, it was further held that medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Even advance in technique is also attended by risks.

IN the ruling reported in IV (2003) CPJ 299, Ghisa Ram v. Dr. P.K. Bansal and Anr., the complainant was admitted in nursing home after falling from stairs. Condition not improved after treatment. Deficiency in service was alleged. The State Commission held that medical practitioner is not guilty of negligence unless proved that doctor not acted with sufficient care and skill. If the treatment has been given as per established procedure, negligence or deficiency in service cannot be proved without cogent evidence. IN this particular case also it is nowhere said that the doctor should have adopted some other method of operation or treatment than was adopted by him. In the ruling reported in IV (2003) CPJ 164, Mrs. Savitri Devi v. Union of India and Others, the patient died during operation. The doctor has operated following established medical norms. He was held not to be guilty. Merely because the patient in this particular case could not be cured, the doctor cannot be said to be guilty of negligence.

FOR what has been said above, we are of the firm opinion that the complainant could not be able to prove negligence of the doctor. We have got every sympathy with him if he has not been cured but we regret that without proof of medical negligence, the complainant could not have been awarded any compensation. The complainant has utterly failed in proving negligence of the doctor. The net result is that the majority view of the learned Forum is to be set aside and the minority view is to be upheld. ORDER The appeal is hereby allowed. The judgment and order of the majority view of the learned Forum, Hardwar dated 9.9.2003 awarding compensation to the complainant is hereby set aside. The dissenting order of the other Member is hereby upheld. The complaint is hereby dismissed. Cost throughout shall be easy. Appeal allowed.