NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO.396 OF 2000
Shri Mehernosh Kersi Khambatta,
S/o Kersi Minocher Khambatta,
By faith Parsi, by occupation
Ex-Employee of M/s. Tata Iron & Steel
Co. Ltd., Jamshedpur,
R/o No.6 Parsi Colony,
Pipe Line Road,
P.O. & P.S. Bistupur,
Town Jamshedpur,
Dist. East Singhbhum (Bihar) ……….Complainant
Versus
1. Venkatrama Nursing Home,
D. No. 47-7-43,
Nehru Market Road,
Dwarkanagar,
Vishakapatnam
2. Dr. A. Dayasagar
Proprietor,
Venkatrama Nursing Home,
D. No. 47-7-43,
Nehru Market Road,
Dwarkanagar,
Vishakapatnam
3. Dr. C. Dharma Rao (since deceased)
Through LRs:-
i) Smt. C. Vimala Devi (Urmila Devi) wife,
ii) Dr. C. Srinivas, son
iii) Sri C. Srinivas, son
iv) Dr. C. Sridevi, daughter, (married)
All residents of D No. 30-1-3 Vivekananda Marg, Vishakhapatnam .........Opposite party
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant : In person
For the Opposite parties NO.1 & 2: Mr. G Ramakrishna Prasad,
Advocate
For the Opposite Party No.3 : NEMO
PRONOUNCED ON: 06.12.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Shri M.K.Khambatta filed this original complaint in November 2000. The complaint is against Venkatrama Nursing Home, Vishakapatnam (OP-1), its proprietor Dr. A. Dayasagar (OP-2) and Dr. C. Dharma Rao, the Orthopedic Surgeon of the Nursing Home (OP-3).
2. Proceedings before this Commission show that OP-3, having failed to respond to the notices from the Commission, was set ex-parte on 12.5.2003. In 2009 the Commission was informed that OP-3 had passed away and therefore, the Complainant was directed to bring LRs of OP-3 on record. Notices were subsequently issued to them but elicited no response. In between, the Commission considered the request of both parties to cross-examine each other. Accordingly, on 26.8.2004, Mr. Ravi Kumar Addl. District Judge (Retd.) was appointed as the Local Commissioner to record evidence. The Local Commissioner has recorded the two cross-examinations on 15th and 16th December, 2004, which are available in Part II of the record of this case.
3. The case, as seen from the complaint petition and the affidavit evidence of the complainant, is that the Complainant, an employee of M/s. Tata Iron and Steel Company Limited. (TISCO) Jamshedpur, was travelling by train through Vishakapatnam on 24.1.1998.
While walking on the platform at Vishakapatnamstation, Complainant’s left leg suddenly snapped from the tibia. He could not even stand and fell down.
He was taken to the Railway Hospital, who advised him to consult some nursing home, as the Railway Hospital did not have the required infrastructure.
The Complainant was admitted to OP-1 Nursing Home and was assured best possible treatment by OP-2.
He was attended to by OP-3 /Dr. C. Dharma Rao, who advised him to undergo a corrective surgery for proper reunion of the bone.
The operation was performed by OP-3 on 25.1.1998 in OP-1 Nursing Home. He was discharged on 9.2.1998 and was advised by OP-3 to take the post-operative care and treatment at Tata Memorial Hospital in Jamshedpur.
The Complainant became medically fit and resumed his duties on 21.4.1998.
4. Allegedly, the problem returned in July, 1999, with severe pain and swelling at the same spot in the leg where the surgery had been performed at OP-1.
Fresh X-ray of the leg showed that the implant was broken and tibia was cracked.
The Complainant was admitted to Apollo Hospital, Chennai for treatment on 14.8.1999.
Another surgery was performed on 17.8.1999 to remove the broken implant and to put Illizarov Ring Fixator on the leg.
5. The allegations levelled in the complaint petition against the OPs, are that—
a. Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly, which aggravated the problems of the Complainant. (Para 30).
b. Sub-standard quality of implant material was used in the surgery for fixing the fracture. (para 13).
c. The OPs claimed to have high qualification but indulged in professional and intentional negligence. Otherwise, failed or improper implant could not have occurred (para 14).
d. In the discharge-slip no weight bearing was advised and there was no mention of position of the fracture, whether open or compound, displaced or undisplaced. This shows medical negligence on the part of the OPs.
e. The report of Dr. Rajgopal Krishnan of Apollo Chennai Hospital reveals non-union of the left tibia with failed implant. This shows that Dr. C. DharmaRao was not competent to perform this kind of operation.
6. According to the affidavit evidence of the Complainant, he was physically fit and normal when the rail journey was commenced on 23.1.1998. The next morning when the train reached Vishakapatnam, he got down to buy some snacks at the platform. It is stated that while proceeding towards the vendor his left leg suddenly snapped from the tibia and he could not walk even a single step and fell down. He was admitted to VenkatramanNursing Home on the advice of the Railway Hospital.
7. It is alleged that OP-3, who examined him on the same day i.e. 24.1.1998, advised him to undergo a surgery for proper reunion of the bone. This advice was given without proper examination and allegedly only to make money from the Complainant. However, trusting the advice of the doctor, he gave consent for surgery, which was performed by OP-3 on 25.1.1998. He was discharged on 9.2.1998, returned to Jamshedpur on 10.2.1998 and got admitted in Tata Memorial Hospital (TMH) on 11.2.1998. TMH had discharged him on 23.2.1998, advising bed rest for two months. On his recovery, para 17 of the affidavitsays:-
“I say that I was under regular check-up by doctors of Tata MAIN Hospital and on 21.04.1998 I was found medically fit to resume my duties Original of the fitness certificate is exhibited as Exhibit C/4.”
8. The affidavit of the Complainant also mentions the problem which occurred in July, 1999 i.e. about 15 months later. But, it does not mention what exactly had happened to cause this sudden problem.
It merely states that a fresh X-ray was taken in Tata Main Hospital (TMH), which showed broken implant and fracture of the tibia.
Apparently, he was discharged from TMH on 19.7.1999 and got admitted to Apollo Hospital Chennai on 14.8.1999.
9. Both, in his affidavit and the complaint petition, the Complainant has relied upon the Discharge Summary issued by Apollo Hospital, Chennai, under the signature of Chief Orthopaedic Surgeon, Dr. R. Gopalakrishnan, for his allegation that the operation conducted by OP-3 was not proper and that the latter was not competent to conduct such an operation.
10. A perusal of this Discharge Summary shows that it is a very brief document where the operative portion reads as follows:-
“DATE OF ADMISSION : 14.08.99
DATE OF SURGERY : 17.08.99
DATE OF DISCHARGE : 04.09.99
DIAGNOSIS : NON UNION LEFT TIBIA WITH FAILED
IMPLANT
OPERATIVE PROCEDURE : REMOVAL OF IMPLANT
ILIZAROV RING FIXATOR
FIXATION
INVESTIGATIONS : ENCLOSED
COURSE IN THE HOSPITAL : He had an uneventful surgical recovery. Wound routinely inspected and dressings done. Wound found healthy. Pin tracts were routinely dressed. Patient was mobilized with crutches from 5th post operative day. Bone transport was initiated from 10th post operativeday.
DISCHARGE ADVICE:
-Pin tract dressings to be done twice a week with betadine and surgical spirit”
11. Per contra, the case of Dr A Dayasagar for OP-1/OP-2 is that he cannot comment on what had transpired between the Complainant and OP-3. However, the allegation of medical negligence is denied. Significantly, a reference is made to the discharge report of TISCO (TMH) Hospital, Jamshedpur, showing that the Complainant had suffered fracture of the left leg (shaft of the left femur and trochanter) in 1989 itself. Because of this old history of fracture, the Complainant was advised by OP-2 (in the discharge slip) to wash the wound with normal saline and apply ensamycin cream till the wound healed and also advised to consult specialist in TISCO Hospital.
12. The written response also denies the allegations that the sub-standard material was used for implant. It is claimed that the implants used were from INOR Company, which is based at Mumbai, which supplied instruments to International market and is one of the oldest and leading companies in India for Orthopaedic implants. The allegation of the Complainant that the diagnosis at Apollo Hospital Chennai proves that OP-2 and 3 were negligent and had aggravated the problem due to improper diagnosis, is also denied on behalf of the opposite parties.
13. The affidavit evidence of the Dr. Dayasagar on behalf of OP-1 makes a specific reference to the discharge report of TISCO Hospital (TMH), filed by the complainant and states:-
“THIS shows that THE COMPLAINANT HAS SUSTAINED BOTH BONES FRACTURE OF LEFT LEG, CLOSED FRACTURE OF SHAFT OF LEFT FEMUR AND TROCHANTICE FRACTURE OF LEFT FEMUR DURING 1989. AGAIN, COMPLAINANT HAS SUSTAINED BOTH BONES FRACTURE OF LEFT LEG MIDDLE 1/3rd AND WAS ADMITTED IN MY HOSPITAL IN JANUARY’ 1998.”
14. The affidavit of Dr Dayasagar for OP-1/OP-2 refers to their own Discharge Slip and says that “I have advised the complainant under the discharge slip to wash the wound with normal saline and apply Ensamycin crème till the wound heals and suggested certain precautions to be taken by the complainant and also specifically advised the complainant to consult a specialist.........Therefore, I have taken all the required steps and advised the complainant suitably as a post –operative care.”
15. We have heard the Complainant Shri M.K. Khambatta at length and carefully perused the voluminous records and case law filed in evidence by him. ShriG. Ramakrishna Prasad, Advocate has been heard on behalf of the Opposite parties 1 and 2. OP-3 as already noted, did not respond and was treated ex-parte. Consequent upon his death notices have been served on his legal heirs but they have chosen to remain unrepresented. The case of the OPs is found to be based primarily on their affidavit evidence, arguments, medical literature and on the records of treatment filed by the complainant. However, full record of treatment at OP-1/Venkatrama Nursing Home for the duration 14.1.1998 to 9.2.1998, has not been filed by either party.
16. During the course of oral submissions, the Complainant pointed out that discharge summary of 9.2.1998, given by OP-1, is in the name of OP-3/Dr. C. Dharma Rao. But it has not been signed by OP-3 and has been signed by someone else on his behalf. Learned counsel for OPs 1 and 2 clarified that the discharge summary as well as the discharge slip have both been signed by the proprietor of the Nursing Home/OP-2, himself. The Complainant emphatically argued that his case is that he has lost 18 years of service due to deficiency in the treatment of his leg by the OPs. He therefore, submitted that his claim should be considered for the amount mentioned in the complaint petition and not as subsequently reduced in the proceedings of 8.2.2002.
17. Learned counsel for OPs 1 and 2 challenged the claim of the Complainant that the fracture had occurred on 24.1.1998 when the Complainant was merely walking at the platform at Vishakapatnam. He referred to two documents submitted before this Commission by the Complainant himself. The first is the record of treatment at TISCO Hospital (TMH) at Jamshedpur, relating to the period 11th to 23rd February, 1998. This document clearly shows that the patient had fallen down at Vishakapatnam Railway Station on 24.1.1999. It also refers to the previous history of fracture and operation of 1989. The second document is the case summery at TMH, when the patient reported again there on 13.7.1999 with sudden pain and swelling in the left leg. This document also refers to a fracture of left femur and grade three open fracture of tibia left leg, which had occurred in 1989. The counsel arguedthat this fact of previous fracture, at the same spot in the same leg, was concealed by the Complainant and not reveal to the OPs on 24.1.1998. In this behalf, counsel also referred to the affidavit of Dr. A. Dayasagar/proprietor of OP-1 in which the history of previous fracture of 1989 mentioned above, has been referred to.
18. We have earlier referred to the cross examination of OP-2 and the Complainant, by each other. Here, the complainant admits for the first time that—
“My same leg was also fractured in a road accident in 1989. After operation at that time, there was a bit of shortening of leg about 1.75 centimeters. Because of that I had a little limping while walking. The limp was cured in 1991 when the implant was removed.” This material fact was not revealed either in the complaint petition or in the affidavit evidence of the complainant. Similarly, Dr Dayasagar/OP-2, has made a sudden change in his position after OP-3 was set ex parte by this Commission on 12.5.2003. In his cross-examination conducted on 16.12.2004, he has said that Dr Dharma Raohimself brought the implant. OP-1 added the price of the implant in the consolidated bill as the complainant was in hurry to go to Jamshedpur. This being in direct contradiction of their specific evidence, is rejected at the threshold itself.
19. We now need to consider the evidence from the treatment records of TMH, Jamshedpur and Apollo Hospital, Chennai where the complainant was subsequently treated. The Case Summary of Tata Main Hospital (TMH) also states that the X Ray report showed broken Tibia implant and crack fracture of Tibia. But, we do not find anything in this report which can relate this fracture and failure of the implant to the quality of treatment provided at OP-1, including the quality of implant and other materials used by them. On the contrary, it was argued on behalf of the OPs that it was caused due to the condition of osteoporosis, which the complainant suffered from and which is disclosed in the Case Summary of TMH.
20. The complainant has stated in his cross examination that he was not suffering from osteoporosis. This claim is found to be in conflict with the documentary evidence produced by the complainant himself. In the CASE SUMMARY of hospitalisation at Tata Main Hospital from 19.7.1999 to 27.7.1999, signed by Dr A Sengupta, Orthopaedic Surgeon, it is clearly noted that Skeletal survey shows evidence of osteoporosis”. There is no explanation why he chose to deny it in the cross examination conducted on 15.12.2004. However, proceedings of 30.10.2006 before this Commission,show that the complainant later tried to bring on record a certificate to show that he is not suffering from osteoporosis now. He was not permitted, on the ground that the cause of action arose much before and therefore, the report of 5.4.2006 has no relevance to it.
21. It was argued on behalf of the OPs that the problem of the complainant was due to his condition of osteoporosis which had rendered his bones porous and therefore, weak. It was not due to any deficiency in his treatment by OPs. In the affidavit of Dr. A. Dayasagar filed on 25.10.2006, reference is made to repeat fracture of the left leg at the same spot in 1998 where the earlier fracture had occurred in 1989, in support of the argument that the subsequent fracture was on account of osteoporosis. Medical literature filed in this behalf (Harrison’s Principles of Internal Medicine 14th Edition) shows that osteoporosis is a disease that causes reduction in bone density. It defines the degree of skeletal fragility sufficient to increase the risk of fracture. “Although osteoporosis is a generalized disorder of the skeleton, the major sequelae result from fractures of the vertebrae, wrist, hip humerus, and tibia......... Hip fractures are the most severe complication. They may be the consequence of trauma, most resulting from a fall from standing height. The likelihood of fracture in a particular location is related in part to the site where the bond density is most reduced, such as the femoral neck or inter-trochanteric region.”
22. The word ‘osteoporosis’ literally means ‘porous bone’. It is a condition where the person gradually looses bone material which makes his bones more fragile. As a result, they are more likely to break even after a simple fall. On this point, the Complainant, in his written argument claims:-
“The explanation as to why the implant broke has to come from a person having special knowledge- the treating surgeon who performed the surgery at OP No 1 having ocular evidence. This wasn’t done by Dr. C. Dharma Rao or any one from the operating team and he chose to become exparte vide order dated 12/5/2003. Breaking of an implant assuming it did break- was at best a neutral;-circumstance.”
This argument amounts to asking the OPs to give evidence against themselves. The onus to prove medical negligence lies on the person who alleges it i.e. the complainant. One of the allegations is that requisite preoperative investigations were not carried out. But on the contrary, material placed on record by the complainant itself shows that preoperative tests, including X Ray of the leg, were done on 24.1.1998.
23. The fact remains that the Complainant has not produced any evidence of an independent medical expert. In fact, the proceedings of 9.4.2002 show that a question did arise in this behalf, but the position taken by the then counsel for the Complainant was that no report of any expert was to be filed in evidence at that stage. The complainant’s argument is that no doctor agreed to give evidence against a colleague. We do not accept it. Without placing reliance on any expert opinion, the Complainant appears to have made his own surmises, as is evident from the following in the rejoinder of 17.12.2003 to the proof affidavit of OP-2 :-
a) Referring to the statement that the Complainant was an employee of TISCO as mentioned in the discharge summary, the Complainant says “it further makes evident that Opposite Party is in a habit of committing negligence”.
b) “It is submitted that a doctor who did not attend the operation according to his own statement, how he can he said to be a competent person to say whether the improper implantation was due to rashness or negligence or not.” This is strange logic. By this, no independent medical expert can give an assessment, as he would not have been a part of the medical team that treated or operated upon the patient.
c) “The act of negligence of the Opposite Party came to the notice of the Complainant only after the Complainant had been asked to undergo a fresh surgery by Apollo Hospital Chennai, which proved that the operation as conducted by Opposite Party was handled in a very casual and negligent manner.”
CONCLUSIONS
24. The genesis of the complaint lies in the recurrence of the problem in July, 1999, one and half years after surgery at Venkatrama Nursing Home, in 1998. Detailed consideration of the evidence on record in the forgoing paras, shows that-
1. The X-ray at Tata Main Hospital, Jamshedpur shows broken tibia implant and crack fracture of tibia. Similar is the finding of Apollo Hospital Chennai, which calls it “non-union of left tibia with failed implant”. But no evidence has been led by the Complainant to show that it was due to any negligence on the part of the OPs in his treatment.
2. Evidence produced by the Complainant itself shows that after the treatment at OP-1 in January-February, 1998, followed by bed rest of two months, he was medically fit to perform his official duties for the next 15 months, till July, 1999.
3. The problem occurred in the same place of the Complainant’s left leg in 1989 due to an accident and 1998 due to a fall at the railway station. But, the Complainant has not disclosed the cause for its recurrence in 1999. In this background, the finding of osteoporosis at TMH in 1999 acquires a special significance.
4. His medical condition of osteoporosis was not revealed in the complaint and the supporting affidavits by the complainant. In fact, in his cross examination, it was specifically denied.
5. The complainant has not disproved the medical finding that he was suffering from osteoporosis in 1999. His subsequent attempt was only to show that in 2006 he was not suffering from it. This was not permitted by the Commission, as it was not relevant to the cause of action.
6. Medical literature brought on record shows a definite possibility of osteoporosis being the cause of recurrent fractures of the tibia.
7. There is no evidence to show that the problem in 1999 was caused due to poor quality of the implant material.
8. There is no evidence on record to show that OP-3, Dr. C. Dharma Rao, did not have the requisite professional qualification to perform the surgery on the Complainant.
25. The above findings of fact have to be seen with reference to the law on the subject. The Complainant himself refers to the Bolam test for determination of medical negligence. It came in a decision by McNair J. in Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 258, in the following words-
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
26. It is fully endorsed by Hon’ble Supreme Court of India in the following landmark decisions which have laid down the law on the subject of medical negligence. In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, the Apex Court has summed it up in eight conclusions. Of them, the following conclusions will directly apply to the matter now before us :-
“1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
4. The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”
In Martin F D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for determination of negligence by a medical practitioner were reaffirmed byHon’ble Apex Court. It was observed that:-
“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.
27. Considering the requirements of the law as laid down by Hon’ble Supreme Court of India, together with the conclusions on facts reached earlier in this order, we come to an inescapable conclusion that the Complainant has completely failed to establish his allegations of medical negligence against the Opposite Parties. The complaint is therefore, held to be devoid of any merit and is dismissed as such. No order as to costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
S./- MEMBER
