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Judgment
Dr. S. M. Kantikar, Member
This Revision Petition has been filed against the Order dated 20.07.2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as the State Commission) in First Appeal No. 950/2007, whereby the Appeal was dismissed and the Order dated 12.03.2007 of the District Consumer Disputes Redressal Forum, Ambala (hereinafter referred to as the District Forum) in Complaint No. 409/2005 was affirmed.
Brief facts are that the Complainant, Brijender Singh (hereinafter referred to as the patient) had met with a motor vehicular accident on 18.02.1999 and suffered fractures in his right leg and left arm. He took initial treatment from Dr. Ashok Kumar Nandra, Orthopedic surgeon at Ambala Cantt., who operated him on 25.02.1999. Thereafter on 15.03.2003 he approached Dr. S. K. Dhawan (hereinafter referred to as the Opposite Party No. 1) at Dr. Dhawan's Orthopedic & Fracture Hospital (hereinafter referred to as the Opposite Party No. 2) at Ambala Cantt. The Opposite Party No. 1 examined the patient and performed various tests and advised for surgery due to implant failure. The Opposite Party No. 1 assured full recovery after surgery. The complainant was operated by Opposite Party No. 1 on 05.06.2003, and after removing the broken nails and the plates inserted by Dr. Ashok Kumar Nandra, the Opposite Party No. 1 affixed new nails and plates with bone grafting. Despite the above treatment, the patient did not get relief from the pain and therefore again he visited Opposite Party No. 1 on 13.10.2003, but Opposite Party No. 1 advised complete bed rest. However, the pain did not subside. He again visited Opposite Party No. 1 on 22.10.2003 and 01.11.2003 but to no avail. Finally, on 17.02.2005, the Opposite Party No. 1 and the Opposite Party No. 2 told the complaints that the patient needs exchange of Titanium nailing of Humerus with bone grafting. Thereafter on 16.06.2005, the patient visited Civil Hospital, Karnal with complaints of severe pain in left upper arm. He further being referred to Fortis Hospital, Mohali, the patient was operated for 'non-union Humerus with implant failure'. He was provided with ORIF with ILN on 20.08.2005 and h Bone grafting + Implant on 23.08.2005.The patient was discharged from Fortis Hospital on 25.08.2005. However, it was noticed that the plate and nailing were broken and un-united. Thus, being aggrieved by the alleged medical negligence and deficiency in service on the part of the Opposite Parties, the Complainant filed the Consumer Complaint before the District Forum, Ambala.
The Complaint was contested by the Opposite Parties by filing a written statement, wherein it was contended that the Complaint was false, vexatious and liable to be dismissed; that the District Forum had no jurisdiction to try the case. The patient was advised to take all precautions to heal the fracture injuries as it was the confirmed case of non-union with poor bone quality; and that the Opposite Party No. 1 gave the best treatment, hence there was no negligence.
On the basis of evidence and averments made by both the Parties, the District Forum, vide Order dated 12.03.2007, allowed the Complaint and directed the Opposite Parties jointly and severally to pay Rs. 1.5 lakh alongwith interest @ 6% per annum from the date of filing of the Complaint and Rs. 1,000/- as the cost of litigation.
Being aggrieved, the Opposite Parties filed the First Appeal before the State Commission, Haryana. The State Commission vide Order dated 20.07.2010 upheld the Order of the District Forum.
Being aggrieved, the Opposite Parties filed the instant Revision Petition on 29.10.2010. During proceedings before this Commission, the Complainant died, therefore, the Legal Heirs of the deceased Complainant were taken on record vide Order dated 09.11.2011.
Heard the arguments of the learned Counsel for both sides and perused the entire material on record inter alia the Original Record from the fora below. Learned Amicus Curiae argued on behalf of the Complainants / Respondents and stressed for the negligence on the part of the Opposite Parties / Petitioners.
The learned Counsel for the Petitioner vehemently argued that the Petitioner No. 1 / Opposite Party No. 1 Dr. S. K. Dhawan, is a qualified and experienced Orthopedic Surgeon practicing for more than 18 years and has performed a number of knee joint replacement surgeries, spinal surgeries besides routine Orthopedic operations. The patient was employed as a Sub-Inspector of Police in Haryana State and the Complaint was filed with ill motive. The patient sustained fracture (Humerus) and other injuries on 18.02.1999, took treatment for the same from Dr. Ashok Kumar Nandra and about 4 years later, the patient approached Opposite Party No. 1 who diagnosed it as a case of "non-union of Humerus" (left) with Implant Failure, operated elsewhere advise surgery. But, the patient did not turn up for 3 months, and came to Opposite Party No. 2 on 05.06.2003 wherein he underwent an open reduction and internal fixation of the fracture bone (ORIF + bone grafting). The patient was discharged from the Hospital on 07.06.2003. The stitches were removed on 18.06.2003 and the patient showed improvement and there was no pain. Subsequently, the patient sustained injuries and he consulted the Opposite Party No. 1 on 13.10.2003, who advised complete bed rest, pain killers, fomentation of water to left shoulder and ice to heel. Thereafter, for about 1 ½ years, the patient did not turn up and again came to Opposite Party No. 1 on 17.02.2005, where after examination he was diagnosed with non-union of fracture humerus and advised for exchange to titanium nailing of humerus with bone grafting, but the patient never came back. He went to General hospital on 16.06.2005 from where he was referred to Fortis Hospital, Mohali. The patient was diagnosed as non-union Humerus with implant failure for which he got operated on 20.08.2005.
On careful perusal of the previous proceedings and Orders of this Commission, we note that the Complainant initially filed the Complaint No. 149/2003 against Dr. Ashok Kumar Nandra, who treated the Complainant in the year 1999 and the said Complaint was dismissed vide Order dated 15.05.2006. On careful perusal of the said Order of the District Forum, we could gather the real facts of the case. Accordingly, it is clear that the Complainant had met with an accident and suffered fracture in his right leg (femur) as well as left arm (Humerus) on 18.02.1999. Dr. Nandra operated for both the fractures on 25.02.1999 and thereafter he removed the nail on 29.07.1999 with bone grafting with internal fixation with plates. At that time, the Complainant never complained about non-union of bone of left arm. Thereafter, the Complainant approached Dr. Ashok Kumar Nandra after a gap of 3 years on 07.08.2002 with broken bone and broken nails which were inserted in his left arm. Dr. Nandra performed bone grafting also on 07.08.2002.
It is pertinent to note that the Complainant thereafter in March, 2003 approached the Opposite Parties Nos. 1 & 2 for the treatment of non-union of the left arm fracture. On careful perusal of the medical record, in our view, the further treatment and the operative procedure adopted by Opposite Party No. 1 was as per standard practice. However, the non-union of the fracture Humerus persisted and finally the patient took treatment at Fortis Hospital. It should be borne in mind that "no cure is not negligence". The Complainant did not succeed in the first Complaint No. 149/2003, filed against Dr. Ashok Kumar Nandra and again he made a second pointless attempt by filing the Complaint No. 409/2005 against the Opposite Parties No. 1 and 2. It is clear that the Complainant approached the District Forum with unclean hands. The Opposite Party No. 1 examined the patient and performed the operation and removed the broken pieces of the nail and advised for Titanium nailing of Humerus with bone grafting but the patient did not turn up.
On combined reading of the medical certificate issued by Opposite Party No. 1 and the discharge summary issued by Fortis Hospital, it is clearly established that after the first surgery done on 25.02.1999 by Dr. Ashok Kumar Nandra, the patient was suffering from non-union of Humerus. Thereafter till August 2005 the patient took treatment from various hospitals including Opposite Party No. 2. The Titanium nailing of Humerus and bone grafting was done at Opposite Party No. 2 which was accepted standard treatment for non-union of fracture. As per the standard textbook- Campbell's Operative Orthopedics, non-union of fractures results due to several factors.
Based on the discussion above the State Commission, which has wrongly held the opposite parties liable for medical negligence. In our considered opinion, there was neither any deviation from the standard practice nor deficiency in service on the part of the treating doctor or the hospital.
For the reasons stated above, the Order of State Commission is hereby set aside, the Revision Petition is allowed. Consequently the complaint is dismissed.
We appreciate learned Amicus Curie Ms. Anubha Agrawal for her assistance.