SUDHEER SAXENA vs D K CONSTRUCTION

-THIS is an appeal against the majority judgment and order dated 20. 6. 2000 and 29. 3. 2001 passed in Complaint Case No. 54 of 1996 by the District Consumer Forum, Aligarh.

HEARD Mr. R. K. Gupta, learned Counsel for the appellant and Mr. Ashok Mehrotra and Mr. R. Nath, learned Counsel for the respondents and perused the record. The majority judgment was criticized by Mr. R. K. Gupta on the ground that the order of dismissal of complaint was passed arbitrarily and without taking into consideration the averments contained in the affidavit and the medical evidence warranting a conclusion that it was a case of deficiency of medical services.

Learned Counsel for the respondents on the other hand with a view to support the majority judgment stressed that no case for medical deficiency was made out and as such the District Forum was justified in concluding that it was not a case of medical deficiency.

FROM the admitted facts it is clear that the appellant sustained injury in the right arm two months prior when she took treatment from Dr. Manoj Mittal, as a result of accident. She was initially treated by Dr. K. K. Singh and was diagnosed as a case of fracture shaft humerous bone and she was plastered and even after two months when the problem did not subside she approached Dr. Manoj Mittal on 5. 2. 1996 who advised her for surgery which was accepted by her and ultimately surgery was done on 5. 2. 1996. She complained pain in left arm and thrombophobe ointment was applied followed by supporting drugs with a view to reduce swelling in the veins. As on 7. 2. 1996 swelling and bluish discolouration of skin of left hand was there Dr. Mittal gave multiple incision (custs) to relieve oedema (fluid collection ). The trouble did not subside and then on 8. 2. 1996 Dr. Gyan Kumar was consulted and medicine was given and he diagnosed as angioneurotic oedema (local reaction of drugs ). On 12. 2. 1996 Dr. Gyan Kumar was again called and he advised to continue the same medicines. On 18. 2. 1996 Dr. Rajiv Sharma, Dermatologist was consulted. On 21. 2. 1996 the patient consulted Dr. S. P. Mishra who advised her to shift to Malkhan Singh Hospital for skin grafting. It is clear that on his advice the patient admitted herself in District Hospital on 22. 2. 1996 and he was diagnosed as S/c Subcutaneous Infection of left hand and ultimatley on 24. 2. 1996 dead skin of dorsum of hand and fingers was removed. The case of the complainant while on one hand is that Dr. Manoj Mittal detained her for extracting more money and did not do proper operation and then it was told by him on 20. 2. 1996 to her that she had developed subcutaneous gangrene and amputation will have to be done otherwise the life of the patient will be jeopardized. It was also argued by Mr. R. K. Gupta that it is a case of res ipsa loquitur. It was argued that Dr. Mittal himself found that there was swelling, discolouration of skin in left hand but instead of taking proper precaution he kept on hanging the patient in his nursing home without required necessary treatment. In Spring Meadows Hospital and Anr. Etc. v. Harjol Ahluwalia Through K. S. Ahluwalia and Anr. , I (1998) CPJ 1 (SC)=iii (1998) SLT 684=air 1998 SCW 1590, it has been observed that a bona fide mistake may be excusable but a mistake which would tentamount to negligence cannot be pardoned. The gross medical mistake will always result in finding of negligence and in same situation principle of res ipsa loquitur can be applied. The report of the dermatologist makes it clear that due to injection by Dr. Mittal on 5. 2. 1996 right arm of the patient developed severe pain. The swelling was noticed on 6/7 February, 1996 along with bluish colouration. It was also found that multiple release incision was given in the morning of 7. 2. 1996 and they have developed vesicles and bullae on the hand around 10th February. There was pain and associated burning on the L palm and hand, marked oedema of the L hand and distal forearm erythema, multiple vesiculobullace on the dorsum of digits and palm, nail bed pulsation intact, culture of blister fluid, gram''s staining of blister fluid.

IT is clear that the approach of Dr. Mittal has been througout negligent. Instead of taking proper recourse for treatment of the patient with a view to get problem corrected attempts were being made by him to put the condition of the patient in the state of uncertainty and even wrong medicines were given and when the case was made helpless Dr. S. P. Misra on 21. 2. 1996 was consulted who advised the patient to shift to District Hospital for skin grafting and ultimately on 24. 2. 1996 the dead skin of dorsum of hand and fingers were removed. The hospital doctor found that it was a case of S/c Subcutaneous Infection of left hand. This is a case of res ipsa loquitur proving a case of medical negligence. The argument that it was basically a case of drug alergy due to which oedema was caused cannot be accepted as it is a case in which as soon as the injection was offered by Dr. Mittal she complaint pain. The majority judgment is based on irrelevant consideration and deserves to be set aside. The complainant''s version that it is a case of medical deficiency committed by Dr. Manoj Mittal due to which she is leading an indifferent life with infirmities is proved. In our view a sum of Rs. 1,25,000 can be awarded towards compensation for meeting the medicinal expenses and other attending containing expenses as well as towards mental pain and agony. Over and above the complainant is entitled for interest @ 9% on the aforesaid amount w. e. f. 20. 2. 1996.

IN the result, the appeal is allowed. The respondents are directed to make the payment as aforesaid to the complainant. Appeal allowed.