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Judgment
THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 30.04.2008, passed by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (hereinafter referred as ''the State Commission '') in First Appeal No. 2053/2006, ''''Smt. Rohini Morghode versus Dr. A. V. Sapre & Anr. '''', vide which, while dismissing appeal, the order passed by the District Consumer Disputes Redressal Forum, Gwalior dated 02.09.2006, dismissing consumer complaint no. 265/2004, was upheld.
BRIEFLY stated, the facts of the case are that the petitioner/complainant Smt. Rohini Morghode met with an accident on 29.07.2003, while going to her office on a moped. She consulted Dr. A. V. Sapre, the respondent/opposite party, who diagnosed it as fracture of right femoral neck. The complainant was operated upon by the respondent/opposite party on 31.07.2003, during which, nailing was done. She was discharged from the hospital on 12.08.2003. It was revealed later on, from an x -ray that the nail fixed during operation on 31.07.2003 had shifted and the bone did not unite. Another operation was done on 04.10.2003 by the same doctor, wherein the nail was placed in position, alongwith the hip screw to support and prevent the nail to displace again. It has been stated that the procedure done by the respondent/opposite party is called SP -Nail fixation. It has been alleged that despite second surgery, the fracture could not be united and the complainant experienced continuous pain. The complainant was then operated upon third time by Dr. Jinsiwaleof Indore on 31.01.2004, whereupon the complainant recovered and joined her duty on 16.03.2004. Later on, the complainant consulted one Dr. Y. C. Pande, MBBS, D. Ortho (Bombay)and after examination of the concerned reports and documents, he gave the opinion that the respondent/opposite party had been negligent in performing the said procedure upon the complainant. The complainant alleged that she had to incur an expenditure of Rs.1,23,000/ - on the operation carried upon her by Dr. Jinsiwale,including boarding and lodging expenses etc. She filed the consumer complaint in question, seeking compensation of Rs.3 lakhsalongwith12% interest from the respondent/opposite party. The opposite party contested the complaint, saying that there had been no negligence on their part and whatever procedure was done upon her, was in accordance with established medical practice. The opposite party stated that they had explained to the attending person, accompanying the patient, that the chances of getting the bone united in such kind of fractures, were quite less, because of improper circulation of blood in the bones in that area. The opposite party also advised that there had to be bed rest and minimum movement by the patient, so that the bone could unite properly. The opposite party no. 1 also stated that when he visited the house of the complainant, she found her walking with the help of a walker, which was a kind of negligence on her part. The main reason for non -union was that she did not follow the instructions and advice given to her. The opposite parties also stated that the complainant had consulted one Dr. Sameer Gupta, Orthopaedic Surgeon, Gajraja Medical College, Gwalior. Dr. Sameer Gupta has stated that the screw of SP Nail had been fixed properly. There was, therefore, no negligence on the part of the opposite parties.
THE District Forum, after taking into account the evidence of the parties, dismissed the complaint, saying that the allegation of negligence against the opposite parties was not proved. An appeal was filed against this order before the State Commission, which was decided vide impugned order and was ordered to be dismissed. It is against this order that the present petition has been made.
AT the time of arguments before us, the learned counsel for the petitioner stated that the two operations carried out by Dr. A. V. Sapre, respondent/opposite party no. 1 were done by SP Nail technique, which was an old and obsolete technology. The learned counsel stated that this technique, called Smith Peterson Nail (SP Nail), was discovered many years back, but over a period of time, modern techniques had taken its place and hence, it was the duty of the operating doctor to have updated his knowledge and to have followed one of the modern techniques. The learned counsel argued that the very fact that the third operation carried out by Dr. Jinsiwale was successful, makes it amply clear that there had been negligence in performing the earlier two operations. It was clear from the version of the respondent/opposite party that the first nail fixed on 31.07.2003 had shifted from its position. Despite that, when the procedure was done second time, the screw was inserted in the same hole and hence, the second operation was also not successful. The learned counsel has drawn our attention to the opinion of Dr. Y. C. Pande, who is an OrthopaedicSurgeon, saying that this was a case of improper surgery, which resulted in the non -union of the fractured bone. Learned counsel also referred to the answers to the questions, given in the questionnaire provided to Dr. Y. C. Pande. The learned counsel argued that the District Forum and the State Commission should have given proper weightage to the report of the expert, but it was not done. The learned counsel also produced copies of medical literature on record and stated that there had been negligence on the part of the opposite parties, as SP Nail had not been supplemented by additional fixation of plates etc. which led to the failure of the procedure done. The learned counsel for the respondent, however, stated that there had been no negligence on the part of the opposite parties in performing surgery upon the complainant. In fact, the problem arose only, because she did not follow the medical advice and was keen on resuming her walk, as early as possible. Referring to the medical literature produced by the complainant, the learned counsel says that the SP Nail operation was still being performed the world over, rather it has been stated in the literature produced by the complainant that the best method of treatment in such cases remains controversial and will vary from one hospital to another. The SP Nailing technique has not been declared obsolete or out -dated by any medical literature, rather it was still being widely used. In reply to the arguments of the complainant regarding fixation of fracture with plates etc., the learned counsel stated that in this kind of fracture involving head of femur, the plate could not be inserted. In the light of these facts, the orders passed by the consumer fora below, were in accordance with law and should be upheld.
WE have examined the material on record and given a thoughtful consideration to the arguments advanced before us. The basic issue involved in the present case is whether the opposite party/doctor failed to update his knowledge about modern techniques and whether he has shown any negligence in treating the complainant, while performing surgery upon her two times. The case of the complainant is that the doctor should have updated his knowledge and used one of the modern techniques for treatment of the patient. However, it has not been proved anywhere from the medical literature placed on record that SP Nailing technique has become obsolete, or is not being used elsewhere. The respondent, Dr. A. V. Sapre, has the qualification, Masters in Surgery (MS) and he acquired this degree in the year 1973. Evidently, he is a qualified doctor and well -equipped to handle such cases. Even if, it is proved that he failed to update his knowledge about the modern techniques in the field, the broad question that arises for consideration is, whether this amounts to negligence or deficiency in service for failure to update his knowledge.
THE State Commission in their order have referred to the famous BOLAM test in handling similar cases in which medical negligence is alleged. It was observed by their lordships in the case, ''Bolam vs. Friern Hospital Management Committee '' as reported in (1957) 2 All ER 118, as follows: - ''''The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art ... that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. This is a perfectly accurate statement as long as it is remembered that there may be more than one or more perfectly proper standards; and if a medical man confirms with one of those proper standards then he is not negligent. '''' As stated above and as held by various courts in a catena of judgments, the standard of an ordinary skilled man is expected from a medical person handling such cases. The concerned doctor may not be in a position to apply or follow the best possible technique, but if he is able to follow the standard method of an ordinary skilled man, he can not be accused of being negligent in the performance of his duty. The District Forum and the State Commission have extensively quoted from the medical literature on the subject and came out with the conclusion that the charge of medical negligence against the OP doctor is not proved. In the literature produced by the complainant also, it is nowhere mentioned that SP Nailing technique has been discarded, or it is not being used elsewhere. It has been stated, however, that the best method of treatment remains controversial and shall vary from one hospital to another.
THE petitioner/complainant have produced on record the expert opinion of Dr. Y. C. Pande, which states that it was a case of improper surgery. The said doctor has the qualification D. Ortho, which is ''Diploma in Orthopaedics ''. On the other hand, the respondent/opposite party has a Masters degree in surgery, meaning thereby that he is better qualified and supposed to have better knowledge about the technical aspects of the subject.
IN the light of discussion above, we do not find that the allegations of medical negligence against the doctor have been proved by any material on record. There is nothing to substantiate that there has been any malafide act, negligence or ignorance on the part of the doctor. The orders passed by the State Commission and the District Forum, therefore, do not suffer from any illegality, irregularity or jurisdictional error, by any standard. The present revision petition is, therefore, ordered to be dismissed and the orders passed by the consumer fora below are upheld. There shall be no order as to costs.