"It is not a deviation from Standard Treatment merely a qualified Orthopedician selects Operation over Plaster". Adv. ROHiT ERANDE. ©

"It is not a deviation from Standard Treatment merely a qualified Orthopedician selects Operation over Plaster".

"Non-union of bone or No cure, is not negligence."

"Medical negligence can’t be attributed for the presence of the chronic infection."

Adv. ROHiT ERANDE. ©

Case Details :

RAJ KUMAR V/s. Dr. RAJEEV JAIN

Rev. Petition No.472/2020 (Against the Order dated 18/12/2019 in Appeal No. 2928/2013 of the State Commission Uttar Pradesh )

BEFORE:  

  HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

  HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgment Dated : 21 Jan 2022

Briefly stated the facts are that :

1. On 10.04.2010, the Complainant Rajkumar injured his left leg in the road accident. He was examined and was treated by an Orthopedician, Dr. Rajeev Jain i.e. the Opponent, at Dr. Narender Memorial Murti Nursing Home at Baraut, U.P. and then he was operated on 17.04.2010, but no relief. 

2. It was alleged that the plates fixed in the leg were not set properly &  therefore, on 9.11.2010, another operation was conducted by the Doctor, but in vain. Then, 3rd operation was done by Dr. Tomar at Raksha Hospital in Bagpat as the opponent refused and the complainant spent around Rs. 1 lakh. Being aggrieved by the alleged negligence of the Opposite Party No. 1, the Complainant filed the Complaint before the District Forum, Bagpat.

3. The grouse of the Complainant was that for simple linear fracture which could have been cured within 4-6 months by applying POP, in the instant case, though the Doctor operated and put the Implant, even after one year the bone was not joined in straight form. As the new implant also could not yield proper union of bone and the complainant is unable to walk properly.

4. The Doctor in  his Written Version denied the allegation of wrong treatment or wrong operation. It was further submitted that the Complainant did not follow post-operative instructions to visit every week, but after six months, he visited the Doctor and there was pus discharge and non-union of bone, therefore 2nd operation was performed. The X-ray taken after the operation revealed good bony alignment. 

5. The District Forum, based on evidence and record, held the liable for medical negligence and directed to pay Rs. 2 lakh to the Complainant along with interest @ 8% p.a. from 01.04.2011 plus tThe cost of litigation of Rs. 5,000/-.  

6. The State Commission allowed the Appeal filed by the Doctor and held that 

 “It is found that no expert opinion has been sought which is capable of proving that the doctor did not follow the medical parameters in the treatment of the complainant. The District Forum, in the impugned judgment, has opined on the basis of its imagination that the appellant has been negligent in the treatment of the complainant, without support of any medical literature. The president and members of The District consumer Dispute Redressal Forum are not expert in any branch of medical treatment. Therefore, the observation/opinion of The District consumer Dispute Redressal Forum that is based on the ‘surmises and conjectures’ cannot be sufficient to hold that the appellant was negligent in the treatment of the complainant and thus the Appeal was allowed. Hence the aggrieved complainant approached National commission.

 

Held :

1. The NCDRC relied upon the medical literature like Campbell’s Operative Orthopaedics (14th edn.) and few.

2. It was observed that linear fracture of left tibia of Complainant, the choice of treatment was either put a plaster (POP) for 2-3 months or surgical correction by putting an implant /nail. In the instant case a qualified Orthopedician chose to treat the patient by an operation and it was not a deviation from the standard treatment, but it was an accepted method of treatment. 

3. Further it was held that during post-operative follow up period, infection was developed and therefore there was no proper healing. The patient was under cover of proper antibiotics but the pus was not cleared therefore 2nd surgery was performed and put a new implant.  However, there was non-union of bone due to chronic infection. In our view, the Complainant himself was responsible for worsening condition of his leg  as he did not follow the post-operative follow up instructions of the Doctor.

4. It was held that the Complainant failed to prove the negligence or any fault of the Doctor, who in our opinion treated as per standard method, while performing 1st and 2nd surgery nor he filed any expert opinion in his support.  The 2nd and 3rd surgeries were needed because of the non-healing because of chronic infection despite administration of proper antibiotics. Non-union of bone or no cure is not negligence. The evidence of Dr. Tomar establishes that there was chronic infection and thus implant was removed. The implant was not tested for its quality or defect from any appropriate laboratory. 

5. Lastly it was held that, Medical negligence can’t be attributed for the presence of the chronic infection. 

This judgment once again reiterates the settled Law that it is the prerogative of a Doctor to decide the line and nature of a Treatment, based on his/her skill and knowledge, in given set of facts. Once again, the Medical record kept properly has come to the rescue of the Doctor. 

Thanks and Regards

Adv. ROHiT ERANDE. ©

PUNE