Sukesh Jain vs Dr. Mukesh Jain And Ors.

MRS . Rajyalakshmi Rao, Member -This complaint is filed by Sukesh Jain, alleging deficiency in service and medical negligence against Dr. Mukesh Jain, Opposite Party No. 1 and Vardhman Trauma Centre, Mahavir Chowk, Opposite Party No. 2. Later, joined Oriental Insurance Company as Opposite Party No. 3.

THE brief facts of the case are as under: The complainant accidentally fell from the staircase and was injured on 27.6.1995 at 8.00 p.m. He was rushed immediately to O.P. No. 2 nursing home with a complaint of left fore -arm cut injury with severe pain and bleeding from the wound. Dr. Mukesh Jain, O.P. No. 1, examined him at about 8.30 p.m. on the same day and after getting x -ray, he advised for immediate operation and promised the complainant that he would be completely cured within few days after operation. He was operated on the same day and discharged on 28.6.1995 at 10.00 a.m. O.P. No. 1 charged Rs. 3,200 as operation fee and Rs. 2,000 for medicines and other expenses, which were paid. Complainant and his family members were told that the surgery was successful and that complainant needs to visit the nursing home regularly for doing some exercises. Thereafter, complainant visited O.P. No. 2 on 1.7.1995 and 3.7.1995. But complainant was still suffering from pain in his fore -arm, palm and the fingers started drooping and when he told this to O.P. No. 1, he casually assured that it would be all right in few days but the pain persisted. Having lost faith in the assurance given by O.P. No. 1, complainant went to Medical College, Meerut on 5.7.1995 and consulted Dr. A.S. Dube, an Orthopaedic Surgeon, who examined him and advised for conduction studies, which was done on the same day in Neurology Unit Department of Medicine. Thereafter, the complainant showed O.P. No. 1 the nerve conduction report on 6.7.1995, but he did not pay any attention to that report and suggested further exercises. Even after sincerely doing the suggested exercises, the complainant''s condition worsened and the fingers started drooping and he was unable to hold his hand.

COMPLAINAN T then consulted Dr. Vinod Arora, a Neurologist on 17.7.1995 and Dr. Lokesh Maratha on 19.7.1995 of Meerut. He again went to Meerut Medical College for further nerve conduction test on 18.7.1995, and which could not be done due to failure of electricity, but he finally got it done on 19.7.1995 and gave the report to Dr. Kapil Sood. After seeing the report, Dr. Kapil Sood told him that the left ulnar nerve was not recordable and that left median nerve reveals reduction aruptitude of CAMP over left thever muscles. Then, complainant consulted Dr. Kaushik of Bombay on 24.7.1995 at AIIMS, New Delhi at Neuro Sciences Centre. The complainant went back to O.P. No. 1 on 25.7.1.995 and showed the reports. O.P. No. 1 noted on his prescription "No recovery in ulnar nerve". It is further written by O.P. No. 1 on the prescription dated 25.7.1995 that "Median nerve was damaged, partial cut was there, one stitch was given". The complainant alleged that O.P. No. 1 stitched the median nerve, but in the same prescription it is written "ulnar nerve was not visible in a wound it was not explored". The complainant''s case is that O.P. No. 1 had complete knowledge about the seriousness of the complainant regarding ulnar nerve, etc. but misguided him and his relatives just for earning more money. Even on 25.7.1995, O.P. No. 1 assured the complainant for early recovery. Complainant attended the exercise classes at O.P. No. 2. After going to the Christian Medical College, Ludhiana, on 22.7.1995, even Dr. A.B. Thomas refused to operate the complainant immediately and told him that due to wrong exercise, the muscles of the hand had become stiff, for this he was required to join the exercise programme again for some time for relaxation of the muscles. Accordingly the complainant joined the City Physiotherapic Centre, Meerut. It is the complainant''s case that O.P. No. 1 wilfully misguided and concealed the material facts of the case while operating and did not advise then itself that a Neuro Surgeon should be consulted. His hand and fingers became disabled due to negligence of O.P. No. 1. Even, Dr. A.B. Thomas could not do anything as the nerve became stiff, shorter and shrunken during the gap period of four and half months, and the nerve could not be repaired properly although operation was conducted by him. He continued to attend the physiotherapy classes. The complainant also visited Lok Nayak Hospital, New Delhi on 1.8.1995, Dr. Elhance at Meerut on 14.8.1995, Dr. Khan at Muzaffarnagar on 19.8.1995, Dr. Saraf at Bombay on 7.9.1995 for consultation and treatment and took their advice. He was earning Rs. 5,000 per month earlier and lost his business since 27.6.1996. His condition deteriorated due to wilful negligence of O.P. No. 1, causing irreparable loss, which cannot be compensated by any particular amount. The complainant had become handicapped, socially deprived and he has to suffer throughout his life. The father of the complainant is 60 years of age, the grand -father died at the age of 85 years and grand -mother is of 80 years of age and is still alive, which shows that there is longevity of life in the family and hence complainant could probably survive till age of 70 years in this background. It is prayed that opposite parties be directed to pay the complainant the following: (a) Rs. 5,200 with 18% interest from 27.6.1995 up to the date of recovery;

(b) Rs. 41,318 for consultation of different doctors and for further operation at CMC, Ludhiana dated 12.10.1995;

(c) Rs. 37,400 for the expenses of physiotherapy at Meerut City Physeotherapic Centre;

(d) Rs. 4,500 for the medicines;

(e) Rs. 10,00,000 for the mental tension, pain and agony;

(f) Rs. 2,00 ,000 for pain and sufferings;

(g) Rs. 5,00,000 for the mental pain and sufferings to the relatives of the complainant;

(h) Rs. 17,28,000 for the irreparable loss due to disability in left hand for the period of 36 years; and

(i) Rs. 10,800 for the salary of the driver;

IN the written statement, the opposite parties submitted that O.P. No. 1 met the complainant for the first time when he was brought to the hospital with referral slip of Dr. H.K. Jain. The complainant had already put pressure bandages over his right hand up to the distal 1/3rd of the hand, which was soaked with blood. The patient was fully conscious at that time. The referral slip itself mentions accidental injury to hand and fore -arm with contaminated lacerated wound with profuse bleedings. On examination, Dr. Jain noted, "profuse bleeding, tendon and other tissues lying out of the wound, pressure bandages".

IT was decided to examine the patient under anaesthesia and Dr. D.R. Singh, Anaesthesiologist, was called to give anaesthesia. On examination it was revealed that - "(1) wound was open and badly contaminated; (2) de -gloving of skin of hand and wrist was present with crushing of muscular/soft tissues; (3) tendon of palmaris longus muscle and flexor digitalis superficialis muscle were damaged along with its muscle belly; (4) Abductor polisis longuous was completely cut; (5) Median nerve was partially cut in its thickness; (6) Ulnar nerve was not traceable and visible in the wound bed even after efforts, and further same was not possible to explore in depth because of scientific reasons as the wound was contaminated one (where exploration of wound would not be in benefit of the patient in comparison to chances of losses and complications, even if the wound is explored against the indications in that situation same can lead further infection and complications where repair of damaged nerve could highly be difficult".

OPPOSITE parties stated that his line of treatment was to first clear the damage and when the wound heals later minimal chances of infection would remain and hence after crossing of 6 -8 weeks of time, proper line of treatment should be given to the patient. For this Dr. Jain mentioned in the discharge summary that the complainant should opt for nerve repair from the AIIMS to get proper line of treatment as per prescribed norms of general medical practice. All this was explained to the patient, his attendants and Dr. H.K. Jain. After taking the consent of the complainant, O.P. No. 1 performed the surgical treatment. He had given broad spectrum antibiotics + anti -inflammatory drug + cleaning of wound with requisite medication + debridement of dead/injured tissues + repair of abductor pollicis longus tendon + one stitch to median nerve in form of stay suture + dressing + POP slab application was given/instituted to the patient/complainant.

THE complainant was discharged on the same day in the late night hours with well written discharge summary, which was issued to him. The discharge summary dated 27.6.1995 clearly mentions "that patient is referred to AIIMS for nerve repair (median and ulnar nerve of right upper limb) and needful later on after crossing 6 -8 weeks". The next day i.e., on 28.6.1995, the patient was again examined and dressing was changed and necessary physiotherapy, which is needed, was done. Opposite parties further state that complainant submitted the prescription, dated 28.6.1995, but did not submit the discharge summary, dated 27.6.1995, for the reasons best known to him. Complainant consulted O.P. No. 1 on 1.7.1995, 3.7.1995, 6.7.1995, 8.7.1995, 11.7.1995 and 25.7.1995 and he was treated according to the need each time. Thereafter i.e., after 25.7.1995 complainant disappeared and never came back for consultation.

IT is the say of the opposite parties that reasonable degree of skill and care with due diligence was adopted while treating the complainant and there is no negligence during pre -operative, operative and post -operative period. Complainant did not file any disability/deformity certificate of any specialist in support of this complaint. The complainant went to various doctors on his own, but did not take the written advice given by O.P. No. 1 to go to AIIMS by his own choice. The nature of the injury was such that repair of the nerve was only possible after 6 -8 weeks, but the complainant never came back for the same to O.P. No. 1 till 20 weeks. By crossing 20 weeks period, he lost very valuable period of 6 -8 weeks, which was essential for recovery of damaged nerves.

O .P. No. 1 emphasized that he had done his best in conducting the surgery without any delay and post -operative care was given as per normal approved medical norms. The operation conducted by him is not proximate or direct cause in effecting the nerve and further working capacity of the hand of the complainant. Nature of the injury itself is such that repair of the nerve is possible only after 6 -8 weeks. The complaint is not maintainable against opposite parties because complainant never approached within 6 -8 weeks for further treatment/advice. It is prayed that the complaint should be dismissed with costs.

AS against the opposite parties version, learned Amicus Curiae Ms. Surekha Raman for the complainant made her submissions as under:

DESPITE various exercises that have been done on the advice of O.P. No. 1, the condition of complainant''s hand deteriorated and it was drooping and he was not getting any relief. Therefore, the complainant took second opinion at Meerut Medical College. Dr. A.S. Dube on 5.7.1995 advised him to get the nerve conduction test. The said test report was taken to O.P. No. 2, who did not rely on it and again suggested only further exercise. Thereafter, complainant continued exercises at O.P. No. 2 i.e., at Vardman Taruma Centre, but his hand started drooping. It was only when nerve conduction test was done complainant realized that it was too late to rectify the damage done to him. Besides, other doctors whom the complainant had visited, Dr. A.B. Thomas of Christian Medical College, Ludhiana advised the complainant to stop the exercise and give relaxation to the muscles as he opined that due to wrong exercise the complainant''s hand muscles became stiff. Complainant was taking muscle relaxation exercise as advised by Dr. A.B. Thomas. Dr. A.B. Thomas also could not do much, because it was too late as the nerve has become stiff and shorten. Further, nerve had shrunken due to the gap of 4 months and still Dr. Thomas tried to rectify the damage by second operation but to no avail. Thereafter, complainant met Dr. Elhance on 14.8.1995 and Dr. Saraf at Bombay on 7.9.1995 and Dr. S.U. Khan on 19.8.1995. As for the affidavit filed by the complainant, learned Amicus Curiae reiterated that because the complainant did not get any relief from the treatment given by the opposite parties, he had to consult different doctors. When he consulted Dr. A.S. Dube, on 5.7.1995, he advised the complainant to get the nerve conduction test done, which was done on the same day. When the complainant visited O.P. No. 1 on 6.7.1995 with the said report, after seeing the report, O.P. No. 1 suggested only exercises to continue at Vardhman Trauma Centre, O.P. No. 2. Although he was doing the exercises as per the advice of O.P. No. 1, his condition was still deteriorating. Because of this situation, he had to consult various doctors. Again, the nerve conduction test was done on 19.7.1995 and the report was given by Dr. Kail Sood, which revealed that the left ulnar nerve was not recordable and the left median nerve revealed reduction. When the complainant went to O.P. No. 1 on 25.7.1995, he only noted "no recovery of ulnar nerve." The prescription, dated 25.7.1995, clearly shows that O.P. No. 1 did not explore the issue of ulnar nerve and median nerve and it got damaged during the surgery and that there was a partial cut, for which a stitch was given. Now, there is no question of recovery of this nerve, which is damaged permanently, and nothing else can be done regarding the same. She argued that the complainant lost his business and is affected by damage to the hand and fingers, which affected his social life. For the mental strain and agony, sufferings, other costs an amount of Rs. 35,27,278 is demanded by the complainant.

LEARNED Amicus Curiae contended that the affidavits filed by the opposite parties of various doctors are verbatim, which clearly shows that the opposite party No. 1, who has availed the service of his colleagues, colluded with them to sign the affidavits, which are obviously prepared by him only. She pointed out that the entire language of the affidavits is same except that the names have been inserted. It is so apparent on the face of these affidavits that they have all been engineered by one person because the mistake with regard to the hand, which was treated by opposite parties is LEFT HAND'' whereas it is noted as RIGHT HAND'' in these affidavits. These affidavits should not be taken as evidence and should be struck off.

AS against this, learned Counsel for O.P. No. 1 contended that firstly, there is no medical negligence or deficiency in service on the part of O.P. No. 1 in conducting the emergency operation to the complainant. After taking x -rays, since the wound was contaminated one, exploration in depth of ulnar nerve was not considered, advisable and in the interest of the patient, no attempt to explore the said nerve was done to avoid further infections and complications. It was only when the wound would heal and chances of infections would be minimal then proper line of treatment was thought to be given to the complainant. The patient was discharged on the same day and proper discharge summary was handed over, in which he was referred to AIIMS for nerve repair, after crossing of a couple of weeks. Learned Counsel for opposite parties referred to medical literature of Volume Two CAMPBELL''S OPERATIVE ORTHOPAEDICS by A.H. Crenshaw", on the subject, which is given gist as under: ANATOMY OF SPINAL NERVES General Conditions for Operation: Immediately after the injury, other than by a knife or other very sharp instrument, one cannot determine the extent of damage to the nerve proximal and distal to the site of injury. Thus it is not possible to determine the amount of the nerve ends that must be sacrificed." (Page 240)

LEARNED Counsel further referred to "Fractures and Joint Injuries by SIR REGINALD WATSON -JONES", the relevant extract is given here as under: Treatment of nerve lesions: "The best time for exploring a nerve is to be determined primarily by the importance of avoiding infection. The operation must not be performed until it is reasonably certain that the wound will heal by first intention. Within limits the interval between the wound and the operation has no influence on the time taken for recovery. There is certainly no harm in waiting for six months, but it must be recognized that the longer operation is delayed the more serious are the changes in the paralysed limb. Moreover, if the interval is greater than eighteen months, the chances of successful recovery are slight".

(Page 243)

IN spite of following the advice given by O.P. No. 1, the patient kept on consulting various other doctors, namely, Dr. A.S. Dube, Medical College, Meerut (5.7.1995), Dr. Vinod Arora, Meerut (17.7.1995); Dr. Lokesh Maratha, Meerut (19.7.1995); Dr. Kapil Sood (19.7.1995); Dr. Kaushik at AIIMS (24.7.1995); Dr. A.B. Thomas, CMC, Ludhiana (22.7.1995); City Physiotherapic Centre, Meerut (upto 9.10.1995); Dr. A.B. Thomas operated the injured hand on 12.10.1995; Lok Nayak Hospital, Delhi (1.8.1995); Dr. Elhance at Meerut (14.8.1995); Dr. Khan, Muzaffarnagar (19.8.1995) and Dr. Saraf at Mumbai (7.9.1995).

IT is clear that the complainant did not take treatment from any single doctor. Instead of following clear medical advice given by O.P. No. 1, the complainant not only did not turn up for any consultation or treatment but also delayed on his own in rectifying the damage caused to him. The expert opinion by way of evidence of three experts, namely, Dr. Aditya Kumar Manglik, Dr. Hardesh Kumar and Dr. Rakesh Khurana were filed, wherein the doctors opined that the line of treatment adopted by O.P. No. 1 is as per prescribed norms of medical sciences and hence no deficiency in service or medical negligence can be attributed to O.P. No. 1. Complainant wasted valuable time of about 20 weeks. It is submitted that it is well settled law that if a doctor exercises reasonable knowledge, skill and care and treats the patient as per prescribed norms of medical science, and in case, something goes wrong with the patient, the treating doctor cannot be held liable by any stretch of imagination. Opposite parties relied on the following judgments in support of their case. "(i) Sethuraman Subramaniam Iyer v. Triveni Nursing Home and Anr., I (1998) CPJ 10 (NC)=1997 (2) CPR 144 (NC);

(ii) Indian Medical Association''s case, III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (2) CPC 502 (SC), (Relying on Vishal Polyclinic and Nursing Home and Anr. v. Satnam Singh, 2000 (1) CPC 80 (Punj.);

(iii) Dr. Surender Kaur v. Parmjeet Kaur, 1998 (2) CPC 214 (Punj.);

(iv) Amar Singh v. France Newton Hospital, I (2001) CPJ 8;

(v) Sachin Aggarwal @ Vicky v. Dr. Ashok Arora, I (1993) CPJ 113;

(vi) Dr. S. Gurunathan (dead) v. Vijaya Health Centre, III (2002) CPJ 211 (NC)=2003 (1) Con.LT 435 (NC);

(vii) Vinitha Ashok v. Lakshmi Hospital and Ors., I (2002) CPJ 4 (SC)=VI (2001) SLT 735=II (2002) CLT 52 (SC);

(viii) Kiran Bala Rout v. Christian Medical College and Hospital and Others, II (2002) CPJ 131 (NC)=2003 (1) Con.LT 203 (NC); and

(ix) Charan Singh v. Healing Touch Hospital and Ors., III (2003) CPJ 62 (NC).

IN our considered view, this complaint fails on the following grounds: It is the complainant who fell from the staircase and sustained injuries, for which he approached opposite parties for treatment and the necessary treatment was given immediately without any delay. In the complaint, there is no whisper of deficiency in service or medical negligence when the primary treatment was given by O.P. No. 1. The surgical treatment was ably performed as per the prescribed medical norms; antibiotics, anti inflammatory drugs were given and the repair of debridement of dead/injured tissues; repair of abductor pollicis longus tendon; one stitch to median nerve in form of stay suture; dressing and POP slab were done and there is no complaint about all this treatment.

THE patient was discharged on the same day and the discharge summary was handed over to him which contains the referral note of advice was given by O.P. No. 1, that the patient was referred to AIIMS for nerve repair (medial and ulnar nerve of the injured hand), after waiting for some weeks. Both the parties do agree that the medial and ulnar nerve cannot be touched for 4 to 6 weeks after the damage. Even if one assumes and agree with the complainant that the referral notice to AIIMS in the discharge summary is an afterthought and got inserted later on, the complainant visited so many doctors but never took any treatment. It is the complainant who wasted valuable time of about 20 weeks and kept visiting different doctors and different hospitals without initiating to get proper treatment from them. All these doctors would have suggested the same treatment or some other treatment, but the complainant for reasons best known to him, did not opt to take any treatment for the nerve injury but just kept waiting. Who else can he find fault with, when he himself is responsible for this act of negligence.

WE do not find any justification in the allegations made by the complainant. Even if we agree with him that O.P. No. 1 wrote this referral note regarding AIIMS later, he did not give chance to O.P. No. 1 to give correct opinion after 6 weeks for follow up treatment to rectify the nerve injury.

WE place reliance on the medical literature where minimum time requirement for further treatment is suggested. "Fracture and Joint Injury", Volume First, Fourth Edition, also specifically mentions (at page 128) "that divided nerves should seldom be sutured at the time of the original operation of wound excision unless it is almost certain that the wound will heal by first intention. If there is the slightest risk of infection, there can be no justification for nerve suture. The primary operation should be concentrated on the task of minimizing infection and securing the most rapid possible healing. If the wound heals without infection, the nerve can be explored within two or three weeks, otherwise nerve suture should be deferred until about two months after healing is sound."

WHEN the wound is badly contaminated, the prudent action is not to explore/repair ulnar nerve immediately after injury, but wait till there is no infection or else it would aggravate the condition. It is difficult to determine the extent of damage to the nerve proximal and distal to the site of the injury. In our view, the opposite party No. 1 has treated the complainant as per prescribed norms of medical science and exercising reasonable knowledge, skills and care without doing any experimentation or resorting to any deviation from the prescribed line of treatment and hence the complaint against him is dismissed. There is no deficiency in service levelled against O.P. No. 2 and hence the complaint is dismissed against O.P. No. 2 - Vardhman Trauma Centre.

ALTHOUGH we are dismissing the complaint, we are unable to restrain ourselves from putting some cost on O.P. No. 1 for filing affidavits of three of his colleague doctors, who must have signed blindly all these affidavits without applying their mind. It is obvious that the contents of the affidavits were prepared by one and the same were signed by all of his colleague doctor friends. All the affidavits filed by these doctors -Dr. Aditya Kumar Manglik, Dr. Hardesh Kumar and Dr. Rakesh Khurana verbatim mention the same as each other, but in these affidavits it is stated that "at that time a pressure bandage was already applied over the patient''s right hand upto the distal 1/3rd of hand, which was soaked with blood". This shows that the surgical operation was done on the right hand of the complainant whereas the actual surgery was done on the left hand of the complainant, which itself shows how these affidavits have been filed blindly, they are not even clear as to which hand the operation was performed.

MS . Surekha Raman brought to our notice the discrepancy in noting by O.P. No. 1 in the discharge summary, which itself is unclear about which arm was operated, left or right; the affidavits filed by the colleague doctors of O.P. No. 1 also show the same mistake that it is right hand. When a medical doctor files an affidavit, we have utmost respect and would like to rely on those. According to us, in the discharge slips that are produced on record, there is some variance from the one that is produced by the opposite parties with the one which is produced by the complainant. The referral note, which is shown by O.P. No. 1 in the medical record advising the complainant to go to AIIMS is not there in Exhibit F'', which is produced by the complainant. Exhibit F'' is duplicated at page Nos. 176 and 177 also do not match and also the referral note to AIIMS is not there. The document filed by the opposite party, notes injury to left wrist, but underneath has the noting of x -ray to right hand. Two discharge slips that have been produced are different from each other and one of them shows L'' ulnar nerve (Page 177) whereas the alleged duplicated copy does not show L'' before the ulnar nerve (Page 176). We had doubted the genuineness of the discharge summary noting as shown in the documents produced. Hence, at the time of final arguments, we directed O.P. No. 1 to file the original discharge summary dated 27.6.1995. O.P. No. 1 filed an affidavit stating that the said documents were lost in March 2009 and that they had filed a "lost" report in this regard before Civil Lines Police Station, Muzaffarnagar. It is further stated in the affidavit that to this effect it was also published in two news papers on 21.3.2009. It is surprising that in a case filed in the year 1996, the original document has been lost in the year of 2009, which itself is strange. We would not like to make any further comments on this incident of loss of material documents.

HOWEVER , opposite party''s notings themselves are not very clear as to which hand he operated on. Wrong documentation, no documentation and non -maintenance of documents of medical record itself is deficiency in service as far as Doctors and Hospitals are concerned. Medical Council of India has prescribed norms and internationally also medical records are expected to be well recorded and are to be safeguarded. In India, this Commission in many times and in many cases gave many directions to medical practitioners that medical record should be properly maintained and also be given to the patient or the relatives on their request without any delay i.e., within 72 hours.

DOCTORS cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors. In view of the aforesaid discussion, the complaint fails. However, after hearing the aforesaid arguments of Amicus Curiae regarding duplicated affidavits and obvious variance in the copies of medical record i.e., in discharge summary, we are inclined to put some cost on the opposite party No. 1.

NATIONAL Commission, State Consumer Disputes Redressal Commissions/Fora always give importance and due consideration to the affidavits given by medical specialists giving expert opinion on the referred cases on oath. We expect honesty from Medical fraternity and would like to accept their work because they are committed and anything contrary is unacceptable, unpalatable, unworthy and deplorable. For deterrence of such conduct by the medical fraternity, who without considering the medical record, facts of the case, give unmeaningful affidavits like in the present case, which are duplicated and signed by them unmindfully, we are putting notional cost to be paid by O.P. No. 1. We hope this order would give a message to the medical fraternity of doctors not to follow such indifferent approach like in this case.

WE appreciate the able assistance rendered by Amicus Curiae Ms. Surekha Raman and direct O.P. No. 1 to pay cost of Rs. 15,000 to her within one month from the date of this order. Complaint dismissed.