Smt. Leela Devi v. Dr. Shatrughan Ram And Anr

PER VINEETA RAI, MEMBER Smt.Leela Devi, Appellant herein, has filed this First Appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, Bihar (hereinafter referred to as the tate Commission in Complaint No.46/2000 wherein State Commission has dismissed her complaint of medical negligence against Dr.Shatrughan Ram, Respondent No.1 herein and another. The facts of the case are that the Appellant met with an accident on 28.05.1999 in which her left arm was fractured. She was admitted on 08.06.1999 in Rajeshwar Nursing Home at Kankarbagh and operated on the same day by Respondent No.1. Appellant remained under his treatment till 23.03.2000 but since her pain persisted and there appeared to be no improvement following the surgery, she requested Respondent No.1 to refer her to a better medical facility at Delhi for further treatment. Respondent No.1 accordingly referred her to All India Institute of Medical Sciences (AIIMS), Delhi. Appellant on reaching Delhi contacted Dr.A.K. Singh, Orthopaedic Surgeon in Safdarjung Hospital, Delhi where she was admitted on 11.05.2000 operated on 12.05.2000 and discharged in a satisfactory condition on

24.05.2000. According to the Appellant, in the Discharge Summary from Safdarjung Hospital, it was stated that she was operated for lower 1/3 of shaft of Humerous C DCP which led to flexon & Extension Deformity of elbow and this had occurred because of implant failure due to improper fixation. Two screws were found broken and the plate was found to be fixed anteriorily extending into the elbow joint. During the second surgery, this was set right by removing the earlier plate -1- and fixing a new plate by way of bone grafting and replacing the broken screws. Aggrieved by the medical negligence and deficiency in service on the part of Respondents, Appellant filed a complaint before the State Commission and requested that the Respondents be directed to jointly and severally pay the Appellant, Rs.1,23,417/- with interest @ 18% per annum towards expenditure incurred on medical treatment including medicines, Rs.4 lakhs as compensation for mental agony and harassment and Rs.15,000/- towards litigation costs. Respondent/doctor denied that there was any medical negligence in the treatment of the Appellant. According to the Respondent/doctor, the surgery was done at the Respondent Nursing Home and the Respondent carried out the surgery according to the most acceptable and conventional method prescribed for internally fixing the fracture of the femur by plating with the help of screws. After the surgery, the Appellant showed positive signs and a check X-ray conducted thereafter indicated that there was proper alignment of the fragments. Specifically, there was no gaping between the fragments and proper screw bites which showed that the screws and the plate had been properly and rightly planted/fixed. After some days of observation and post-operative healing and medication, the Appellant was discharged and was advised to take rest and avoid any strenuous activity until the union is completed. Some mild physiotherapy was also recommended. Appellant contacted the Respondent in September, 1999 and it was noted that the union had still not been completed so she was asked to wait for some more time before taking any further treatment. An X-ray of the operated area on 7th December, 1999 showed that the union of the bones was in progress although this was slow. This was confirmed by another X-ray taken on 22.03.2000. According to the Respondents, this occurred because the patient had not followed post-operative advice regarding avoiding of any strenuous activities etc. and it was, therefore, recommended that she should undergo another surgery for grafting since the union had not occurred. The Appellant, however, requested that she be referred to Delhi for further treatment. Respondent accordingly referred her for treatment to All India Institute of Medical Sciences (AIIMS), Delhi. However, Appellant instead of going there went to Safdarjung Hospital and that too after two months. Respondent has contended that the Appellant allegations of medical negligence and deficiency in service are not correct and the non-union of the affected bones cannot be attributed to the negligence of the Respondent/doctor because the operation was successful as confirmed by the check X-rays. The Appellant has also not been able to indicate as to what the Respondents should have done during the surgery and what they failed to do. On the other hand, it is medically well established that even after successful operation involving open reduction and internal fixation by plating with the help of screws, non-union can result and thereafter it is the general practice that in such cases grafting is the next stage of treatment. Grafting is not recommended directly to any patient unless there is non-union of the bones. The State Commission after hearing both parties and considering the evidence on record dismissed the complaint. The operative part of the order of the State Commission reads as follows: rom the analysis of the fact stated above and scrutiny in the line of the above land mark decision by the Apex Court and National Commission, we are of the view that O.P.- doctor in this case have carefully adopted the line of treatment which is recognized in the medical jurisprudence and available and admissible to most of the doctors. Earlier he performed the operation and fitted with screw and plate after some time when he found that there was delay in union. He advised another operation for grafting thereupon. The complainant chose to go Delhi for treatment but we find from the discharge slip of Safdarjung Hospital that there also this line of treatment, i.e. grafting was done for non-union of the joints. This fact amply proves that O.P. doctor adopted the line of treatment which was one of the better treatment to the case of slow union of joints. Therefore, we do not find any negligence or deficiency in duty on the part of the O.P. Dr.Ram. The allegations of the complainant appear to be without substance and not substantiated by any medical evidence and medical expert. Hence, the present First Appeal. Counsel for both parties made oral submissions. Counsel for Appellant reiterated the fact that there was non-union of the bones in the fractured arm clearly indicating that the surgery conducted by Respondent/doctor was not successful and it was only after the second surgery was done at Safdarjung Hospital in Delhi that Appellant got relief. Further, the Discharge Summary from Safdarjung Hospital clearly indicated that the non-union at the lower end of the hemurous bone was because of the improper fixation of the DPC was proof of the medical negligence on the part of the Respondent/doctor in conducting the first surgery. Therefore, the State Commission erred in concluding that there was no medical negligence in the instant case. Counsel for Respondents on the other hand contended that as rightly concluded by the State Commission, there was no negligence on the part of the Respondents. Respondent/doctor is a well-known Orthopaedic Surgeon and the surgery involving internal fixation by plating screws is the standard surgical procedure which is adopted in patient with such fractures. Moreover, it is medically well accepted that even after successful surgery, the union of the bones may get delayed as occurred in this case but for this, the Respondent/doctor cannot be held responsible because the post-operative X-rays confirmed that the plate and screws were properly fixed. Post-surgery, the Appellant was advised to take some precautions failing which non-union can occur. It is apparent that the Appellant did not follow this medical advice. It is also well-known that despite successful surgery, non-union occurs in 3% of such cases (Source: Campbell Operative Surgery). In fact, following detection of non-union, Respondent had offered to undertake another surgery but since Appellant expressed her desire to be referred to an institution at Delhi, she was immediately referred to AIIMS. However, Appellant did not go to AIIMS but went to Safdarjung Hospital and that too belatedly. In the prescriptions and discharge slip of Safdarjung Hospital, it is nowhere stated that the operation conducted by the Respondent was not satisfactory or was wrongly done. It was only indicated that there was a non-union of the bone joints which is an admitted fact. Keeping in view these facts, the State Commission had rightly concluded that there was no medical negligence in the instant case. We have carefully considered the submissions made by both learned Counsel and have gone through the evidence on record. The facts of the surgery being conducted on the Appellant elbow following a fracture in an accident and the subsequent non-union of the bones are not in dispute. It is also a fact that the Appellant got another surgery done at Safdarjung Hospital to facilitate the union of the joints through grafting. The State Commission after taking into account these facts as also the other evidence filed before it had concluded that there was no medical negligence on Respondentspart. The State Commission also cited the judgment of the Honle Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 , wherein principles of what constitutes medical negligence have been clearly spelt out, as also in Achutarao Haribhau Khodwa Vs. State of Maharashtra (1996) 2 SCC 634 wherein the Honle Apex Court had noted that the skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient and negligence cannot be attributed to a doctor so long as he is performing his duty to the best of his ability and with due care and caution. We agree with the reasoning and finding of the State Commission in concluding that there was no medical negligence in the instant case. Admittedly, the Respondent who is a well-qualified orthopaedic doctor had after due consideration including proper diagnosis and using his best professional judgment conducted a conservative surgery which involved fitting the screws and plating which in a majority of cases results in union of the bone joints. Since it did not occur as is known to happen following such surgeries, in this case, another operation for grafting which is the recommended surgery in cases of non-union was recommended. The second surgery was conducted in Sajdarjung Hospital where grafting was done for non-union of joints which was also recommended by Respondent/Doctor. The Discharge Summary from Sajdarjung Hospital does not state that there was any wrong treatment or negligence during the first surgery. Keeping in view these facts and respectfully following the judgments of the Honle Supreme Court cited in the order fo the State Commission, we agree with the State Commission that there was no medical negligence on the part of Respondents in this case. We, therefore, uphold the order of the State Commission and dismiss the First Appeal. No costs. ......................J ASHOK BHAN PRESIDENT ...................... VINEETA RAI MEMBER