SONI KUMARI vs NAGENDRA NARAIN BHAGAT

THE complainant has filed the case alleging the following facts. That the complainant''s minor daughter Soni Kumari sustained injury on her left leg, on 7.10.1994 at Bhagalpur due to fall. She was rushed to a private clinic of Dr. Nagendra Narain Bhagat (O.P.), Orthopaedic Surgeon for needful. She was treated there for a consideration. THE O.P. Doctor vide his prescription dated 7.10.1994 diagnosed that Soni Kumari has sustained fracture in shaft femur and accordingly advised for X-ray and did plaster on her left leg (Annexure-1). Soni Kumari regularly complained of very tight slab out of which her tibia-fibula part of leg had constantly been paining. After some time her muscle bulged out then she reported to the O.P. but he did not heed to the complaint made by Soni Kumari and ignored it on one pretext or another saying that such pain was usual with plaster of paris. After several complaints by the patient the doctor opened the plaster and it was found that her tibia-fibula part of leg had become excessively purulent. THE O.P. did fasciotomy incision over the fibula but the pain did not subside. THEre was also loss of sensation due to tight plaster of paris and delayed capillary return in the toes which ultimately made tibia-fibula excessively purulent which is apparent from Annexure-2 which is a prescription of Dr. J. Mukhopadhyay dated 4.1.1995.

IT is further case of the complainant that having dissatisfied with the method of treatment of the O.P. he brought his daughter to Patna from Bhagalpur and got admitted her in the Nursing Home on the advice of Dr. J. Mukhopadhyay. From his prescription it is clear that the treatment given by the O.P. at Bhagalpur was a negligent service due to which the patient suffered complete loss of sensation and movement of her toes and delayed capillary return to the toes. At last on the advice of Dr. J. Mukhopadhyay, her left leg was amputated about two inches below the knee on 13.10.1994. The contention of the complainant is that due to negligent and deficient service on the part of Dr. Nagendera Narain Bhagat the complainant had to suffer amputation of her left leg which made her life miserable and she became handicapped. The certificate of the Medical Board dated 4.5.1995 described the disability as "orthopaedically handicapped" (Annexure-3) supports the contention of the complainant. On the basis of the facts mentioned above the complainant claimed the compensation and the damages to the tune of Rs. 7,38,591/- only. Some prescription and bills have also been filed (Annexure-4) besides the above Annexures referred to above by the complainant.

The O.P. appeared, filed written statement and also written argument. The contention of the O.P. is that allegation levelled against him is false, fabricated and motivated. The complainant was brought before the O.P. for examination only once and thereafter she was never brought in his clinic for treatment. He has not performed any operation on the complainant. He did not plaster her leg by "plaster of paris" as alleged. For the first time when the patient was brought before him he had advised for the plaster as mentioned on his prescription but when the plaster was not done by him this part of the prescription has been cut out by him. From his prescription it would be clear that he has not advised the patient to be admitted in his clinic for plaster or for operation. If he has treated the patient in his clinic including plastering her leg, all the details should have been mentioned in the prescription. No document has been produced on behalf of the complainant to show that she was admitted in his clinic, he has charged any fee for operation, or room charge or even any charge for plaster. The entire allegation of the treatment of the complainant is fictitious and motivated at the instance of the enemies of the O.P. He examined the patient only once but did not treat her as alleged by the complainant. The O.P. is qualified Orthopaedic Surgeon. There is nothing on record to show that there was any deficiency or negligence on his part nor from the prescription of Dr. J. Mukhopadhyay (Ext. 3) it is proved that there was any deficiency or negligence on the part of the O.P. in treating the complainant. Thereafter, the complainant is not entitled to get any relief against the O.P. as claimed for.

ON the basis of material on record and contention advanced by learned Counsels of the parties, the following questions arisen for our consideration: (1) whether there was any deficiency in service (negligence) on the part of O.P. within the meaning of Section 2(1)(g) of the Act while treating the complainant; (2) whether in the given facts and circumstances it can be stated that O.Ps. are guilty of adopting unfair trade practice within the meaning of the Act; (3) whether the complainant is entitled to any relief ? For convenience, we considered the question Nos. 1 and 2 together.

TO arrive at a finding whether there was any deficiency in service on the part of the O.P., we would like to examine some settled legal position with regard to duties and obligations of a doctor towards the patient. In this case, it has not been alleged that O.P. Doctor was unqualified practitioner or was incompetent to treat the complainant for her ailment. There is also no specific allegation of recklessness against him. In the famous case of Hucks v. Cole, Lord Denning pointed out that a charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car. It affected his professional status and reputation. Therefore, the burden of proof was correspondingly greater. It is settled law that as the charge was so grievous so should the proof be clear. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure, or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much, so that his conduct might be deserving of censure or inexcusable. In Halsbury''s Laws of England (Volume-26 Page 17) it has been held that a doctor is not liable in negligence because someone else of better skill and knowledge would have prescribed a different treatment or operated in a different way, nor is he guilty of negligence if he had acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men. This principle has been affirmed by the Apex Court in a famous case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128.

IN most of the cases where negligence is attributed against a medical practitioner "Bolam Text" (Bolam v. Frium Hospital) is applied to arrive at the conclusion whether there was element of negligence in the duty of the doctor attending the patient. IN this case it has been held, (i) that a man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular article; (ii) a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular article; (iii) a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view; (iv) if proper practice requires some warning to be given the second question is if warning had been given would it have made any difference. These principles have been universally accepted with slight modification in the judgment of different Courts.

IT is also settled law that in such cases the burden of proof of negligence, carelessness or inefficiency lies on the complainant''s case when decided on the balance of probabilities. In case of medical negligence the burden of proof is correspondingly greater. In the line of the above settled principle governing the medical men we have to decide whether the O.P. has committed negligence in the treatment of the complainant. This fact is not in dispute that she had a fracture on 7.10.1994; she was brought to the private clinic of Dr. Nagendra Narain Bhagat (O.P.) on the same day. The contention of the complainant is that O.P. Doctor treated Soni Kumari and diagnosed that she had sustained fracture in shaft femur and advised X-ray and ultimately plaster worked. The complainant has relied on Annexure-1 which is the prescription of O.P.-Doctor Nagendra Narain Bhagat. His further contention is that the patient remained till 10.10.1994 in his treatment but there was no improvement rather she had acute pain and swelling, therefore, he brought his daughter-patient to Patna and admitted in the Nursing Home of Dr. J. Mukhopadhyay on 11.10.1994 where she was treated and ultimately her left leg was amputated.

The contention of the O.P. is that complainant Soni Kumari was brought in his clinic on 7.10.1994 who had a fracture of her left leg but she was not admitted in his clinic. He gave only first aid and thereafter the patient was removed from his clinic by her parents and thereafter he has never treated the patient. In between 7.10.1994 and 11.10.1994 whether the patient was admitted and treated is not within the knowledge of the O.P. It is possible that during this period she went to some other doctor who has plastered her wound and thereafter she was brought to Patna on 11.10.1994. In support of this contention the O.P. placed reliance on his prescription (Annexure-1) and submitted that at the first instance he has advised for plaster of paris of her left leg along with X-ray but the prescription will show that it has been penned down because the patient''s father was not agreeable for plaster in his clinic. Therefore, he only gave the first aid by Lucoplast and bandage which is mentioned in Annexure-1. It was further contended on behalf of the O.P. that there is no prescription or any paper produced on behalf of the complainant to show that in between 7.10.1994 and 10.10.1994 the patient was admitted in his clinic, he had plastered her leg and treated during these three days. The entire writing over Annexure-1 is of one date i.e., 7.10.1994 and thereafter he never treated the patient nor he knows where she was treated. It was further submitted that from the report of Dr. J. Mukhopadhyay filed on behalf of the complainant vide Annexure-2, it is nowhere mentioned that O.P. has committed any negligence nor he gave first aid to the injured girl on 7.10.1994. In his report Dr. Mukhopadhyay stated that when the patient was brought to him on 11.10.1994 he found a P.O.P. slab (Plaster of paris slab) on her leg and there was complete loss of sensation and muscle bulging. Since the O.P. has not plasterd her leg, therefore, he cannot say under which circumstances she has lost sensation in her leg or her muscles were bulged out. The learned Lawyer of the O.P. submitted that complainant has miserably failed to produce any evidence including the evidence of an expert that there was any negligence on his part when he was attending the patient on the first date of her accident, that is, 7.10.1994 and treated her and gave her first aid. The O.P. vehemently denied that he admitted the patient in his clinic in between 7.10.1994 and 10.10.1994, administered plaster of paris on her left leg or gave any medicine whatsoever during this period. The contention of the O.P. is that complainant had suppressed the material fact that the complainant left the clinic of the O.P. after first aid on 7.10.1994, itself and thereafter she was never brought in his clinic for further treatment. She might have been treated by some other doctor and thereafter removed to Patna on 11.10.1994.

ON the basis of above facts, the main contention of the O.P. is that applying the Bolam Text and principle enunciated several decisions right from the text of Lord Denning it was the burden of proof which lies on complainant to show that the O.P.-Doctor was negligent in attending the patient when she was brought in his clinic on the first date of her accident. The complainant has also failed to prove that she was treated in his clinic in between 7.10.1994 and 10.10.1994 and he has plastered his fractured wound. In absence of these proofs the complainant has no case against the O.P. for which award of the huge compensation has been claimed by her. The learned Lawyer appearing on behalf of the complainant submitted that O.P. has treated the complainant in between the period 7.10.1994 to 10.10.1994 and he has plastered her leg in spite of the complaint made by the patient that she was having acute pain in the plastered portion. No step was taken by the doctor to remove the plaster. Ultimately the complainant''s father brought her to Patna where her leg was amputated because of infection in the bone. The complainant''s Lawyer submitted that in Annexure-1 though the portion where the doctor has advised for plaster of paris with X-ray is penned down but actually O.P. has plastered her leg after X-ray and she was admitted in his clinic.

WE have carefully analysed the submissions made on behalf of the parties and the materials available on the record including Annexures 1 and 2. WE come to the conclusion that the complainant has miserably failed to make out a case of negligence against the O.P. -Doctor. The facts and circumstances discussed above show that O.P. has given only first aid and treated the patient only on 7.10.1994. There is nothing on record to show that she remains admitted in his clinic in between 7.10.1994 and 10.10.1994 and O.P. has plastered her leg which caused infection in her bone and resulted into an amputation as alleged. We feel that young girl has suffered a lot and her left heg has been amputated which made her disabled but we have no material available on record to come to the conclusion that O.P. Doctor was negligent in treating her and he adopted a wrong line of treatment which resulted into infection of her left leg and ultimately it was amputated. In absence of such proof we are not in a position to give any relief to the complainant as claimed for. In the result, we do not find any merit in this complaint which is accordingly dismissed. However, there shall be no order as to cost. Complaint dismissed.