Savita Suneja vs R.S.Oberoi

THE Matter in the present proceedings arises from an incident of 18.12.2004. The Complainant, Mrs. Savita Suneja had fractured her left arm in a fall. She was treated at Bir Nursing Home by OP -1/Dr. R.S.Oberoi. The case of the Complainant was that she was wrongly diagnosed to have suffered communited fracture of the ulna, while it was actually a case of ''Monteggia (fractured Ulna and dislocation and fracture of radial head (variant) ''. For such a fracture with dislocation, the only remedy was anatomical repositioning by open reduction and internal fixation of ulna. Allegedly, failure on the part of OP -2 to do so resulted in permanent disability in her left arm, affecting her normal functioning.

THE District Forum allowed the complaint and awarded compensation of Rs.2 lakhs, together with cost of Rs.10,000/ -. The State Commission Delhi agreed with the finding of the District Forum and held that it was a case of medical lapse due to wrong diagnosis. However, the Commission reduced the awarded compensation of Rs.2 lakhs to Rs.1 lakh on the ground that there was no evidence as to the percentage of disability suffered by the Complainant. The above order of the State Commission has been challenged by both sides. RP No. 1725 of 2007 has been filed by the Complainant against reduction of the quantum of compensation. RP No.2434 of 2007 is filed by the OPs challenging the concurrent finding of medical negligence against it. We have carefully perused the records and heard Mr. R.L. Suneja, Advocate for Mrs. Savita Suneja and Dr. Susil Kumar Gupta, Advocate for Dr. R.S.Oberoi and another.

AT the outset it needs to be observed that the District Forum, in the course of the detailed consideration of the matter, had obtained expert opinion from All India Institute of Medical Science (AIIMS). This report of Dr. Surya Bhan, Prof. and Head of the Department of Orthopaedics addressed to the Medical Superintendent, AIIMS has observed that: - ''''1. The X -rays dated 18.12.04, 19.12.04 and 31.12.04 reveal a Monteggia variant injury of the left elbow. 2. This injury can be treated by closed reduction and plastering. ''''

THE term Monteggia fracture derives its name from Giovanni Monteggia and is described as fracture of Ulna in association with dislocation of the Radial head. (source ) Thus, as per the opinion of AIIMS, it was a case of Monteggia variant. It would mean that it involved not only fracture of the Ulna but also the dislocation of the Radius head i.e. the elbow. On the other hand, as already noted, the stand of the OP/Dr R S Oberoi, before the fora below, was that he had diagnosed it as a case of Comminuted fracture (i.e. a fracture with more than two fragments) of the Ulna. In other words, dislocation of the Radial head i.e. the elbow was not a part of the OP ''s diagnosis. In his revision petition, Dr Oberoi has attempted to expand the scope of consideration when he refers to the X -Ray of 2005 taken by another doctor. But the fact remains that before the fora below the OPs have failed to challenge the expert opinion of the AIIMS which is based on the three X Ray reports of 2004. Significantly, the record shows that all three X -Rays were taken on the advice of OP -2, Dr Oberoi himself. This was also pointed out by learned counsel for the complainant. Neither the revision petition nor the arguments of the counsel for the petitioners/OPs have made any attempt to explain the gap in their diagnosis based upon the same three X -Ray reports.

ON the contrary, the attempt is to obfuscate the issue by claiming that the treatment given was the same as opined in the report of the AIIMS i.e. closed reduction and plastering. The revision petition states that - '''' f. Because the learned Commission has erred in holding the doctors negligent on the basis of his assumption that the very fact that the treatment imparted was not closed reduction and plastering wherein fact the actual treatment provided was closed reduction and plastering only. g. Because the State Commission has erred and wrongly concluded without any basis that the diagnosis was wrong as it was not a case of comminuted fracture of Ulna wherein fact the Monteggia fracture variant includes comminuted fracture Ulna also. ''''

IN our view, these contentions offer no help to the case of the OPs. The claim that Monteggia fracture includes fracture of the Ulna, in itself amounts to an admission that the diagnosis was incomplete, as it was limited to fracture of the Ulna and as it did not include dislocation of the Radial end i.e. the elbow. Consequently, the first contention would amount to making an illogical claim that even with incomplete diagnosis, the treatment given to the complainant was complete. There is no explanation how dislocation of the elbow could have been treated if it was not even diagnosed by the OPs. We therefore, find no merit in RP/2434/2007. The other revision petition No. RP/1725/2007 has been filed by the complainant, against reduction of the amount of compensation by the State Commission. The State Commission has reduced the amount as ''''there is no evidence as to the percentage of disability suffered by the respondent. '''' The revision petition clearly states that - 1. Because the petitioner had applied for disability certificate in the Government Hospital but her request was not entertained on the ground that within one year of injury, disability certificate cannot be considered. Thus, the petitioner had no opportunity to place on record the disability certificate before the Ld. District Forum. Now, the petitioner has applied afresh for disability certificate. The past and present application for grant of disability certificate filed by the Petitioner are enclosed as Annexure VIII and IX, respectively. Therefore the Ld. State Commission ought not to have faulted the Petitioner for not producing any disability certificate. ''''

It is therefore clear that non -submission of disability certificate, remains an uncontroverted fact. We therefore find no merit in the contention for enhancement of the amount of compensation.

FOR the reasons detailed above, revision petition Nos. 1725 of 2007 and 2434 of 2007 are both held to be devoid of any merit and are dismissed as such. Parties to bear their own costs.