M. Shreesha ORDER
M. Shreesha, Member
1. Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 17.02.2017 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal preferred by Dr. Chandeshwar Prasad (hereinafter referred to as "the treating Doctor") and set aside the order of the District Consumer Disputes Redressal Forum, Nalanda (in short "the District Forum), thereby dismissing the Complaint.
2. The facts in brief are that the Complainant met with an accident on 23.05.2003 and fractured his left leg. He was treated by the local Dr. Ashok Kumar Singh, who gave first aid to the Complainant and referred him to the Sadar Hospital for further treatment. It is averred that on account of non-availability of required facility at Sadar Hospital, the Complainant was taken to Srijan Nursing Home, where the treating Doctor examined the Complainant on 28.05.2003 and operation of the fractured bone was advised with fixation of plate and screw, for which an amount of 20,000/- was charged. It is averred that the Complainant's father had given some money to the treating Doctor for purchasing the materials for treatment but did not get any receipt for the same.
3. After the operation was conducted and the plate was implanted, the fractured leg was also plastered. The Complainant remained in the Nursing Home up to 06.08.2003 during which period, three different X-rays of fractured thigh was taken on 06.06.2003, 25.06.2003 and on 13.07.2003 respectively, as per the advice of the treating Doctor. It is averred that all the three X-rays show that the fractured left femur bone was not joined to each other due to improper fixation of the plate and screw on the broken thigh. Another operation was conducted on 23.07.2003 and the plate was replaced by a steel rod with an assurance that this time the fractured bone would be joined properly within a month. An additional amount of 20,000/- was charged towards the second operation.
4. It is pleaded that the Complainant felt no relief and once again consulted the treating doctor on 07.09.2003 and after examining him he was admitted in the Nursing Home. The X-ray dated 10.09.2003 was taken and re-plaster was done on 12.09.2013, for which an amount of 8,000/- was charged and the Complainant was discharged on 25.09.2003. It is stated that the Complainant was seen by the treating Doctor from 28.05.2003 till 16.10.2003 and despite several operations and plasters there was non union of the fractured bone, which is evident from the X-ray plates. Thereafter the Complainant's condition became very serious and he could not move due to severe pain and swelling and the treating Doctor referred the Complainant to Patna Medical College and Hospital (PMCH) on 16.10.2003. On 18.10.2003 an X-ray of the left thigh was taken, wherein it was clear that there was non union of the fractured bone. It is averred that the Complainant spent an amount of 75,000/- during his treatment at the Nursing Home and submits that it is only on account of the negligence of the treating Doctor that he has suffered physical and mental agony on account of which he seeks an amount of 4,25,000/- towards compensation.
5. The treating Doctor filed his Written Statement stating that there was no negligence on his behalf in conducting the operation or in plastering the left thigh of the Complainant and in fact he had advised the Complainant to take complete rest. He denied that the Complainant had spent an amount of 25,000/- during the period of his treatment; that the patient was discharged on 06.06.2003 after the first operation and the X-ray showed that he was in a good condition. It is admitted that the Complainant had come to his clinic on 25.06.2003 and complained about pain in his leg and the Complainant was advised full rest. The X-ray of 25.06.2003 did not show any fault. Once again the Complainant visited him on 26.09.2003 when his X-ray was again done and he was advised to meet the treating Doctor after 10 day, but the Complainant did not come for review.
6. The District forum based on the evidence adduced allowed the Complaint directing the treating Doctor to pay an amount of 75,000/- towards medical expenses and 50,000/- towards physical and mental agony and 10,000/- towards litigation expenses within 60 days from the date of order, failing which the amount shall attract interest@ 8% p.a.
7. Aggrieved by the said order the treating Doctor preferred an Appeal before the State Commission, which while allowing the Appeal observed as follows:
"The counsel for the appellant submits that the District Forum vide order dated 06-06-2006 had dismissed the complaint to be filed before the appropriate Forum, against this order he filed appeal. This Commission passed the order dated 13-02-2009 in Appeal No. 246 of 2006 to decide the complaint on merit. An expert opinion of the Civil Surgeon Nalanda has been obtained in this case. The expert report is dated 21-12-2009. The O.P.-appellant did not accept the expert report and filed rejoinder to the Petition dated 19-02-2010. The District Forum obtained another expert report from IGIMS, Patna. Its report dated 07-05-2010 was sent to the District Forum. The complainant filed objection against this expert report as, the O.P. argued that the IGIMS report suggested that there is no deficiency in the service of O.P.-Doctor hence, Complaint be dismissed. Then, both expert reports were placed before the four members medical Board under Civil Surgeon. The District Forum has not considered it and has allowed the claim passed the impugned order which is fit to be dismissed and the appeal be allowed."
8. Aggrieved by the said order the Complainant preferred this Revision Petitioner with a delay of 349 days.
9. Having perused the grounds in the Application seeking condonation of delay, wherein the Revision Petitioner had cited medical reasons and the treatment he had undergone and also filed the medical certificates, we are of the considered view that the reasons given are satisfactory and therefore the delay is condoned and the Application seeking condonation of delay is allowed.
10. As can be seen from the record, this is a second round of litigation. Initially the District Forum has dismissed the Complaint vide order dated 06.06.2006. On an Appeal preferred by the Complainant the State Commission vide order dated 13.02.2009 remanded the matter back to the District Forum to decide the Complaint on merit. The District Forum while allowing the Complaint vide order dated 10.06.2011 observed that the X-ray dated 18.10.2003 clearly showed that there was non union of the fractured bone of the left thigh. It also considered the report dated 21.12.2009 of the Medical Board, which was constituted by the Civil Surgeon, Nalanda, wherein it was opined that it showed fractured shaft of listal femur but in para 2 (7) of the report dated 07.05.2010 only progressive union with callus formation was written. There was no comment about the alignment. The District Forum relied on the diagnosis of the X-ray taken on 18.10.2013 of non union of bones and also the Complaint.
11. The facts not in dispute are that the Complainant met with an accident on 23.05.2003 and met the treating Doctor on 28.05.2003, on which date the treating Doctor operated on the fractured bone and fixed a plate and screw; the Complainant remained in the Nursing Home under his treatment from 28.05.2003 till 06.08.2003; three X-rays were taken on 06.06.2003, 25.06.2003 and on 13.07.2003; The X-ray dated 13.07.2003 shows infection; that the Complainant once again consulted the treating Doctor on 07.09.2003. Re-plastering was done on 12.09.2003; the Complainant was under the treatment of the treating Doctor from 28.05.2003 to 16.10.2003; the X-ray dated 18.10.2003 taken at Manbir X-ray, shows the non union of the fractured bone; that the Medical Board was instituted on 21.11.2009 under the chairmanship of Civil Surgeon CMO, Nalanda for the expert opinion. The report of the Medical Board is reproduced as hereunder:
"A board is constituted on 21/12/2009 under the chairmanship of civil surgeon cum C.M.O. Nalanda for the expert opinion on the prescription of the treating doctor and X-ray done during the treatment of patient named Sri Lalan Pandey 16 years hindu male S/o. Sri Madan Pandey of harnaut vide Memo NO-415 Date-05/12/2009 of chairman Dist Consumer Form Nalanda and memo No-3541 dated 17/12/2009 of civil surgeon Nalanda with Following members
1. Dr. Awadhesh Kumar Sinha D.S. Sadar Hospital Biharsharif
2. Dr. Ramanand Prasad Singh Radiologist Sadar Hospital
3. Dr. Ram Kumar Prasad Surgeon Sadar Hospital Biharsharif.
4. Dr. Budhaparakash Orthopaedic Surgeon
Sadar Hospital Biharsharif
On observation of X-rays and prescription of treating Doctor board is of the opinion that
5. Patient Sri Lalan Pandey 16 years hindu male S/o. Sri Madan Pandey of harnaut consulted Dr. Chandeshwar Prasad M.B.B.S., D. Ortho (Orthopaedic Surgeon) of Srijan Nursing Home, Ramchandrapur Biharsharif Nalanda for management of fracture shaft of left femur (As evident from the X-ray plate) on dated -28/05/2003.
6. On examination of X-ray plates done at different Dates following findings are observed
7. X-ray dated 24.05.2003 done at Jay X-ray clinic Biharsharif vide symbol LT. show fracture shaft of distil femur.
8. X-ray dated -06/06/2003 done by Kiran x-ray vide symbol RL. Shows satisfactory reduction with internal fixation by plate and screws.
9. X-ray dated 25/06/2003 and 13/07/2003 done by Kiran X-ray Biharsharif shows satisfactory alignment with plate and screws folding the fracture ends satisfactorily
10. X-ray dated 06/08/2003 and 10/09/2009 done at Kiran X-ray shows fixation of fracture with external fixture with visible callus and almost satisfactory alignment
11. X-ray dated -20/09/2003 done by Kiran X-ray not clear at fracture site, hence not worth comment
12. X-ray date 18/10/2003 shows visible external callus with acceptable alignment
13. By observing the prescription as a whole it is clear that the patient Sri Lalan Pandey had been under regular observation of the treating Doctor Chandeshwar Prasad of Srijan Nursing Home and given treatment accordingly. And on 16/10/2003 the patient was referred to P.M.C.H."
(Emphasis supplied)
12. Learned Counsel appearing for the Complainant vehemently argued that the report was based on X-rays, which were clearly reproduced as 'not clear' in point E of the aforenoted report. It shows that the X-ray dated 20.09.2013 done at Kiran X-ray was not clear and hence not worth commenting. This report is not conclusive as it does not mention anything about the standard protocol, which has been followed by the treating Doctor or not. Thereafter on 28.05.2010, Indira Gandhi Institute of Medical Sciences had given the following report:
INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, PATNA-14
Proceeding of the Medical Board held on 7.5.10 at 1.00 PM in the office chamber of Medical Superintendent, IGIMS, Patna to discuss the matter with Complaint case No. 04/2005, District Consumer Forum Nalanda, Biharsharif as per Letter No. 122 dated 16.06.10.
Following members were present:-
After viewing the X-ray of different dates from 25.05.2003 to 18.10.2003.
OBSERVATIONS ARE AS FOLLOWS:
1. X-ray dated 24.05.2003 shows Fracture shaft of femur with multiple fragments.
2. X-Ray dated 06.06.2003 the post-operative good alignment with good hold of fracture fragments by plate and screws.
3. X-ray dated 25.06.2003 shows union in progress with good amount of callus formation with satisfactory alignment.
4. X-Ray dated 13.07.2003 shows signs of infection and loosening of implant. (Removal of implant is justified in the presence of infection)
5. X-Ray dated 06.08.2003 shows bi planer external fixator with good alignment of bone fragments. (Treatment of fracture by external fixator is standard management in presence of infection).
6. X-Ray dated 10.9.2003 shows satisfactory progress of union with external fixator in situ.
7. X-ray dated 20.09.2003 and 18.10.2003 shows progressive union with callus formation.
8. Further X-rays are not available and patient was referred to PMCH on 16.10.2003.
FINAL OPINION
1. Test Book of Orthopaedics quotes that even after all precaution during surgery infection of 1.5% to 8.5% cases are accepted as normal occurrence, on which Surgeon had got no control.
2. Treatment offered has been as per scheduled protocol in Orthopaedics practice.
13. Learned Counsel appearing for the Opposite Parties vehemently contended that the Complainant was discharged in a good condition and that the Medical Report shows that there was no negligence. Learned Counsel also relied on the certificate issued by the subsequent Nursing Home dated 20.03.2018, wherein, Dr. Suresh Prasad Singh certified that the Complainant was under his treatment till 20.03.2018 and thereafter he was fit enough to resume his duties. Learned Counsel also submitted that the Medical Board has gone through all the X-ray plates and the prescriptions while preparing the report and the X-ray dated 18.10.2013 clearly depicts that external callus was with acceptable alignment. As against this argument, learned Counsel appearing for the Revision Petitioner vehemently contended that the X-ray dated 13.07.2003 was taken when the Complainant was in the supervision of the treating Doctor and when it depicted infection it was not treated and that the Medical Board had not taken this aspect into consideration.
14. The medical record does not evidence that the treating Doctor had taken care of the infection which was depicted in the X-ray dated 13.07.2013. It is also not in dispute that on 23.07.2003, the second operation of the fractured left thigh was conducted and a steel rod was inserted. It is evident from the record admittedly that the patient remained in the Hospital from 28.05.2003 till 06.08.2003 and thereafter the Complainant also consulted the treating Doctor on 13.08.2003 and on 27.08.2003 on which the date pain killers were given. The Complainant was once again admitted in the Nursing Home on 07.09.2003 and an X-ray was done on 10.09.2003 and re-plastering was done from chest to knee on 12.09.2003 and he was finally discharged on 25.09.2003. It was only on 16.10.2003, when the Complainant's condition became very serious that he was referred to by the treating Doctor to PMHC and the X-ray done on 18.10.2003, showed non union of the fractured bone.
15. It is seen from the Medical Report dated 10.12.2009 is non conclusive and objection dated 19.02.2010 was filed by the Petitioner against this Medical Report on the ground that X-ray plates and prescriptions were not examined in accordance with the principle and norms of normal medical practice. The Rejoinder dated 16.10.2003 was filed by the treating Doctor stating that the Medical Report dated 21.12.2009 is correct and true.
16. Subsequently, as can be seen from the record, another Medical Board was constituted and a Medical Report dated 07.05.2010 was sent by Indira Gandhi Institute of Medical Science. This report dated 07.05.2010 was also objected to by the Revision Petitioner on the ground that though X-ray report dated 13.10.2013 shows signs of infection, when the Complainant was under the treating Doctor, the same was not considered by the Board.
17. It is evident from the record that the Complainant had to repeatedly undergo surgeries, despite being under the treatment of the treating Doctor from 28.05.2003 to 16.10.2003 for a period of almost 5 months. The X-ray evidences that there was non union of bones. Be that as it may, it is evident that the first report is completely inconclusive and the second report given by Indira Gandhi Institute of Medical Science does not anywhere state that the infection which showed in the X-ray dated 13.07.2013 depicting loosening of implant was treated. The Complainant was in the Nursing Home from 28.05.2003 to 06.08.2003 i.e. for a period of almost three months and the onus is on the treating Doctor to explain as to how infection has set in. To reiterate, it is pertinent to note that this X-ray dated 13.07.2003 was taken when the patient was in the Nursing Home of the treating Doctor. We place reliance on the judgement of the Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. MANU/SC/0332/2010 : (2010) 5 SCC 513, wherein it is stated that the expert opinion is not mandatory while adjudicating a Complaint of medical negligence. There is no whisper in the Medical Record regarding the reasons for the infection having set in and if this is a known complication what steps have been taken during that period.
18. We are of the considered view that this is a fit case to place reliance on the decision of the Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute MANU/SC/0882/2004 : (2004) 8 SCC 56, in which the Supreme Court has laid down that once a prima facie case is observed, the onus shifts on the Hospital and the treating Doctor to explain as to how a particular condition has occurred and explain the treatment that was rendered to the Patient. We are of the opinion that the ratio laid down by the Hon'ble Supreme Court in the aforenoted judgement squarely applies to the facts of this case as the medical record of the treating Doctor does not depict as to why only pain killers were prescribed to the Complainant 13.08.2003 and on 27.08.2003; the reason as to why after taking X-ray dated 10.09.2003, once again re-plastering was done on 12.09.2003; the ground on which no X-ray was taken immediately after conducting the operation and plastering and the Complainant to ascertain whether the fractured portion was properly united or not and finally the submission of the treating Doctor that the second operation was conducted only on account of the Complainant's negligence, who did not follow the instructions and advice of the Doctor. We are unable to accept this contention specially keeping in view the light of the fact that the Complainant was admitted in the Nursing Home and was continuously treated by the treating Doctor for almost three months from 28.05.2003 to 06.08.2003. Additionally, we are of the considered opinion that in the absence of any Medical Record evidencing that the treating Doctor had taken necessary steps during the post-operative period, especially when the X-ray dated 13.07.2003 depicted infection when the patient was still in the Nursing Home of the treating Doctor, we are of the view that there was negligence in the treatment rendered by him, which led to prolonged physical and mental suffering of the Complainant, who underwent several operations and re-plastering.
19. For all the aforenoted reasons, we are of the considered opinion that the order of the District Forum dated 10.06.2011 be restored. It is significant to mention that the Complainant did not challenge the order of the District Forum dated 10.06.2011.
20. In the result, this Revision Petition is allowed directing the treating Doctor to pay the amount awarded by the District Forum which is only a meagre amount of 1,35,000/-. Time for compliance is four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 10% p.a.
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