P.S. CHOUHAN S/O LATE D.S. CHOUHAN RETD. ASSTT. EXCISE COMMR. vs MANAGING DIRECTOR, SAIL & ORS.

This instant revision petition has been preferred by the petitioner/complainant against the impugned order dated 17.12.2015 passed by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (herein after referred to as ''the State Commission'') in first appeal No. 223 of 2015. The State Commission while holding the OPs responsible for medical negligence in the treatment of wife of the petitioner/complainant, modified the order of the District Forum and reduced the compensation to Rs.50,000/- as against Rs. 5 lakh awarded by the District Forum.

The brief facts: The petitioner/complainant, Mr. P. S. Chouhan''s wife, Mrs. Brajesh Chouhan (hereinafter referred as ''the patient'') suffered facture of right hip joint on 18.5.2011. After taking treatment with Orthopedician, i.e. Dr. Rajendra Pandey, she was taken to JLN Hospital Sector 9, Bhilai i.e. OP 2, the hospital of Steel authority of India-OP 1. On 21.5.2011, Dr. V. K. Bansal, OP 3, an orthopedic surgeon in the OP-1/hospital advised Dynamic Hip Screw (in short, ''DHS'') fixation surgery. It was alleged that without discussing about plan of operation or taking the complainant into confidence, the OP 3, operated the intertrochanteric fracture of right femur fixing DHS plate on 23.5.2011. It was performed by Dr. Anupam Lal but it was not performed by Dr. V. K. Bansal. The bones of the patient were osteoporotic. Therefore, the DHS plate passed easily into the bone without drill by the TAP. Thereafter, the patient was discharged on 26.5.2011 with instruction of total bed rest with further treatment of diabetes and neuro problems. She was also advised for periodical check up in the O.P.D. of JLN Hospital, Bhilai. Accordingly, she was kept on bed rest with nursing care and Dai for assistance at her residence. On 28.6.2011 and 26.7.2011, she was taken to Dr. V. K. Bansal for follow up. Even during follow up, Dr. Bansal did not disclose that, he has not performed the DHS fixation operation and the osteoporotic condition of the bone of the patient. He told that recovery of patient will take much more time. On 10.9.2011, during follow up, the patient was taken to Dr. Bansal on stretcher, but he boldly and discourteously refused to examine the patient and told that her end is very near. Thus, feeling haunted, she died on 4.1.2012. Therefore, due to such inhuman, discourteous, derogatory & negligent behavior of Dr. Bansal, the complainant consulted Dr. M. Raj Shekher, former Head of Orthopedics in JLN Hospital & other orthopedic surgeon on 24.9.2011. It was found that DHS was slightly cut. The patient had severe pain. Thereafter, she was admitted twice to Chandulal Chandrakar Memorial Hospital, Nehru Nagar, Bhilai during 27.11.2011 to 12.12.2011 & 02.01.2012 to 04.01.2012 and ultimately the patient expired during treatment on 4.1.2012. Thus, alleging extreme negligent, indecent attitude on the part of Dr. Bansal (OP 3), the complainant/petitioner filed a complaint before the District Forum, Durg on 25.6.2012 and prayed for compensation of Rs.5,00,000/- alongwith medical expenses of Rs.2,02,188.00. The District Forum adjudicated the matter and allowed the complaint, jointly and severally to the complainant, with the direction that the OPs 1 to 4 shall pay to the complainant, Rs.2,02,177/-, the medical expenses incurred on the treatment of patient, Rs. 5 lakh towards mental agony and Rs. 10,000/- towards costs of litigation.

Aggrieved by the order of District Forum, the OPs filed first appeal before the State Commission, Chhattisgarh on 11.5.2015. The State Commission partly allowed the appeal and held no medical negligence in DHS fixation operation, disallowed the cost of treatment. The State Commission reduced the compensation of Rs.5,00,000/- awarded by the District Forum to Rs.50,000/- towards mental agony and reduced the cost from Rs.10,000/- to Rs.3,000/-.

Therefore, aggrieved by the impugned order of State Commission, the complainant filed this instant revision petition.

We have heard the learned counsel for the petitioner/complainant at the admission stage. There is delay of 15 days in filing this revisio, it is condoned for the reasons stated in the application for condonation of delay. On the merit, the learned Counsel vehemently argued that the State Commission modified the order and arbitrarily reduced the compensation awarded by the District Forum. It was gross negligence committed by the OPs/doctors during DHS surgery in the patient, who was already suffering from osteoporosis. The DHS surgery was performed by OP-3 without informed consent. Therefore, it further deteriorated patient''s health leading to death. Before surgery the doctors assured of complete cure after DHS fixation and thereafter patient could walk comfortably. But, She was bed ridden throughout, never able to stand till her demise. It is further stated that during follow up also, the doctors at OP 1 hospital were not cooperative. Thus, the entire act of OPs amounts to deficiency and negligence. Therefore, the complainant/petitioner deserves the compensation, as awarded by District Forum.

We have perused the medical record on file and the impugned orders of District Forum and State Commission. The main allegations of the complainant are that, DHS was not properly fixed, said operation was not done by Dr. Bansal but his junior Dr. Lal performed it. Same was concealed from the complainant. We have carefully perused the observations made by the State Commission. As per medical record, discharge summary dated 26.5.2011- the patient was 72 years old and a known case of Type II Diabetes since 1997 and under treatment of T.I.A. since 2007. As per the medical literature and from the medical text books CHAMPMANS''S ORTHOPAEDIC SURGERY, and ROCKWOOD AND GREEN''S FRACTURES IN ADULTS,, the DHS fixation is a gold standard treatment in the case of trochanteric fractures .

Regarding informed consent, we have perused the hand written consent in Hindi; it was taken by the OP/Dr. Vivek Gupta on 21.5.2011, with explanation about risk of operation. It''s translation is reproduced as under(Annexure 2):-

21.05.2011

High Risk Wound

I have this knowledge that the Right leg Femur of my patient has fractured for which operation is necessary. There is a danger to the life of the patient due to old age as also due to disease O/H Parkinsion/Old T.I.A. in Anaesthesia, Operation and even after operation. Knowing all these things I am ready for Operation of my patient."

Sd/- Sd/-

Dr. Vivek Gupta 21.05.2011

P. S. Chouhan

Husband of Mrs. Brajesh Chouhan"

Similarly, we have perused the informed consent for anesthesia taken by concerned department. As per bed head ticket patient was admitted under Unit D-1. the operative procedure and operating surgeons were Dr. A. Lal, Dr. Vivek Pipersania and Dr. Anurag Gupta and after DHS fixation, the patient was advised for active physiotherapy and medicines.

It is pertinent to note that, the discharge summary of OP/hospital reveals the condition of the patient, on discharge, was suitably comfortable.

Thereafter, patient also approached some other orthopedicians. In the prescription of Dr. Rajshekhar dated 12.9.2011, nothing is mentioned about any negligence committed in previous operation. Patient has advised bed rest for one month and some medicines. Another prescription dated 14.9.2011 of Janki Fracture Clinic of Dr. A. D. Urgaonkar, an orthopedic surgeon shows that the operative scar on the right thigh was healed. The patient was not able to stand and walk. The patient was anemic and senile also. He advised for further opinion from Dr. H. R. Jhunjhunwala, Bombay Hospital. The OPD prescription/case paper of Dr.Jhujunwala reveals that the patient has not made to walk. Clinically, she has painless movement right hip. The X-ray reveals DHS is slightly cut through spuriously, the shaft is medial. The patient was advised to walk with walker, physiotherapy to mobilize Hip and to develop muscle power in flexion and abduction.

Therefore, on perusal of those prescriptions (supra), medical record, observation made by State Commission, prima facie, we do not find medical negligence in the instant case. Thus, there is no justification of grant/enhancement of compensation in the instant case. Since the OP has accepted and not challenged the impugned order of State Commission, we restrict ourselves to the plea regarding quantum of compensation awarded to the complainant.

In view of the discussion, we do not find any material irregularity or jurisdictional error in the impugned order of the State Commission which may call for interference in exercise of revisional jurisdiction. Therefore, the revision petition has no merit. Hence, it is dismissed in limine.