NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 293 OF 2012
 
(Against the Order dated 19/07/2010 in Appeal No. 1139/2003 of the State Commission Uttar Pradesh)
1. PRAYAG HOSPITAL & RESEARCH CENTER PVT. LTD. & ANR.
669, Sector-29,
Noida - 201301
U.P.
...........Petitioner(s)
Versus 
1. VIJAY PAL
S/o. Sh Bhim Singh, R/o. Villgae Badoli
Gautam Budh Nagar
U.P.
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
 HON'BLE DR. B.C. GUPTA, MEMBER

For the Petitioner :
Mr. Madhurendra Kumar, Advocate
Dr. B.P. Singh, Petitioner No. 2 in person
For the Respondent :
Mr. Pradeep Dahiya, Advocate

Dated : 08 Feb 2016
ORDER

This revision petition has been filed against the impugned order dated 19.07.2010, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘State Commission’) in Appeal No. 1139/2003, “Pryag Hospital & Research and Ors. vs. Vijay Pal” vide which, while dismissing the appeal,  the order passed by the District Forum NOIDA, Gautam Budh Nagar in consumer complaint No. 484/2001, filed by the present respondent/complainant Vijay  Pal, allowing the said complaint in a case of alleged medical negligence, was upheld.

 

2.      Briefly stated, the facts of the case are that the complainant/respondent Vijay Pal filed consumer complaint No. 481/2001, alleging medical negligence against the petitioner Prayag Hospital and Research Centre NOIDA, Gautam Budh Nagar and four other doctors of the hospital, including Dr. B.P. Singh, the present petitioner No. 2, alleging medical negligence by them during his treatment at that hospital.  The complainant stated that he was a milkman-cum-ordinary farmer, and he was having five buffalos and earning his living by selling milk in NOIDA, UP.  On 28.09.2002, he got grievously hurt due to attack by the said buffalos and suffered injuries on his left leg and foot.  He was admitted in the petitioner hospital, where he remained under treatment of Dr. B.P. Singh, petitioner No. 2.  It has been alleged that due to the faulty treatment given by the Doctors at the hospital and their unethical approach, his condition worsened and ultimately, his left leg was amputated by the OP Doctors, without obtaining proper consent from him or his relatives.  He stated that when he was admitted to the hospital on 29.09.2000, his left leg was diagnosed as a fractured leg at both the bones and a few other injuries only, which were curable.  However, due to the carelessness of the Doctors and nurses of the hospital, his injuries could not be healed.  The concerned Doctors also did not take any expert opinion from any orthopaedic surgeon etc., as a result of which, his condition deteriorated and ultimately, amputation had to be done.  The complainant also alleged that the OP Doctors had not provided him medical record about his treatment at their hospital.  The complainant stated that he and his family members paid a sum of ₹1,33,830/- to the hospital as expenses for the treatment.  He demanded a compensation of ₹5 lakh from the complainants through this consumer complaint.  The District Forum vide their order dated 05.04.2003, allowed the said complaint, holding that the OPs were jointly and severally liable to pay a sum of ₹1,33,830/- to the complainant towards treatment expenses and ₹1 lakh as compensation against mental agony and harassment and ₹2,000/- as litigation charges.  Being aggrieved against this order, the OPs challenged the same before the State Commission by way of appeal No. 1139/2003, but the said appeal having been dismissed vide impugned order, the OP Hospital and Dr. B.P. Singh are before us by way of the present revision petition.

 

3.      At the time of hearing before us, Dr. B.P. Singh appeared in person and stated that when the complainant came to the petitioners with damaged leg, his left leg and foot were tied with bamboo-sticks and ropes.  He himself revealed that after getting injured in the buffalo attack, he had gone to consult some quack, who had tied bamboo-sticks to the injured leg.  On examination of the patient, it was found that there was neither pain nor sensation of deep prick, pressure, cut or heat application.  There was no bleeding and palpable puss.  The injured portion of the leg had turned bluish in colour and there was no neurological sensation in the same.  This observation was recorded in the admission record of the hospital.  The X-ray of injured part revealed that there was fracture of both bones of the left leg.  The petitioner No. 2 made final diagnosis in the form of ‘compartment syndrome with gangrene of left lower limb upto knee with fractured both bones’.  The Doctor stated that the complainant was advised amputation at that stage as well, but subsequently, a conservative surgical line of treatment was adopted as first step of treatment in the form of release of pressure over the nerves and vessels in all compartments of the injured leg (Fasciotomy and release of pressure in every apartment of left leg and foot) on the written request of the complainant and his family members.  The doctor stated that after about 48 hours, there were signs of revival in some of the muscles in the injured leg and blood circulation also started in some part of the vessels.  However, the nervous system did not work at all, even after six weeks.  Despite all steps taken in the best interest of the health and life of the complainant, the condition of the patient did not improve.  It was decided that amputation of left leg should be performed, otherwise gangrene/septic could spread, which could be fatal to the life of the complainant.  According to the petitioner Doctor, the written consent was taken from the complainant on 18.11.2000 and the said amputation was done on that very day.   All these facts had also been stated in the affidavit dated 16.05.2012 filed by Dr. B.P. Singh in proceedings before this Commission.   There was, therefore, no negligence shown in any manner by the OPs towards the complainant.

 

4.      On the other hand, the learned counsel for the respondent stated that despite their requests, the OPs had not provided them copies of the medical record.  According to the learned counsel, it was the duty of the OPs to lead appropriate evidence to prove that they had not shown any medical negligence in the treatment of the complainant.  The learned counsel has drawn attention to an order passed by this Commission in “Ankur Seeds Pvt. Ltd. & Anr. vs. Motil Lal & Anr.” [RP No. 381 of 2012 decided on 22.05.2014], stating that the onus of proof was on the OPs to establish their innocence.

 

5.      We have examined the material available on record and given a thoughtful consideration to the arguments advanced before us. The basic issue that requires our consideration is whether the OPs have exhibited medical negligence in any form in the treatment given to the complainant.  On a pointed query made to the learned counsel for the complainant at the time of arguments before us, as to whether the complainant had provided any evidence/material in support of their allegations against the OPs, it was stated by them that the onus of proof was on the OPs to prove that there was no negligence on their part.  We, however, do not find any reason to agree with the line of argument taken by the complainants.  In “Ankur Seeds Pvt. Ltd. & Anr. vs. Moti Lal & Anr.” (supra), it has been clearly held that the initial burden to prove allegations against the OPs was upon the complainant itself, and once initial burden had been discharged, the onus of proof would shift to the OPs, so that they could establish that the product sold by them, (the seeds sold to the farmers in that case) were liable.  In the present case, the complainants have not been able to provide any material to prove the allegation of medical negligence against the OPs.  In case, they required any medical record etc. from the OPs, they could have filed proper application for the same in accordance with the procedure laid down in law, but they did not make any attempt to do so.

 

6.      The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon’ble Supreme Court of India and also in the orders passed by this Commission from time to time.  In the case, “Kusum Sharma & ors.  vs. Batra Hospital & Medical Research Centre & ors. [(2010) 3 SCC 480]”, while deciding whether the medical professional is guilty of medical negligence, the following well-known principles have been stated:-

“I. Negligence is the breach of a duty exercised 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.

 

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

 

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

 

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

……………………………..

 

VII. Negligence   cannot   be   attributed to   a doctor so long as he performs his duties with reasonable skill   and   competence.   Merely   because   the doctor   chooses   one   course   of   action   in preference to the other one available, he would not   be   liable   if   the   course   of   action   chosen   by him was acceptable to the medical profession.”

 

7.      In another landmark case, ‘Jacob Mathew vs. State of Punjab and others’ (2005 (6) SCC 1), the Hon’ble Apex Court, interalia, stated as follows:-

(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.

……………………..”

8.      In the above judgment the Hon’ble Apex Court has quoted from the Law of Torts, Ratanlal & Dhirajlal (24ath Edn., 2002, edited by Justice G.P. Singh)”

“Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. …….the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”

 

9.      From the above judgments, it is clear that there are three essential components of negligence, namely, a legal duty to exercise due care, breach of the said duty and the consequential damage.  It is to be examined, therefore, in the present case whether there was any “breach of duty” on the part of the attending doctors and whether the OPs did not exercise a reasonable degree of skill and knowledge, while treating the patient in question.  It is also to be seen whether they possessed the requisite skills to treat the patient.

 

10.    As indicated earlier, the petitioner No. 2, Dr. B.P. Singh stated the factual position of the case in the affidavit filed before this Commission.  He stated in the said affidavit that Vijay Pal, complainant was brought to the hospital by Harbeer Singh, Raj Pal Singh and some other attendants.  The treatment of the patient was started immediately after administering IV fluid medication and vaccination.  Further, treatment was started after obtaining the consent of the attendants in the presence of Harbeer Singh, Raj Pal Singh and others.  The complainants and attendants requested him to take a chance to save his limb from amputation.  Accordingly, Dr. B.P. Singh went for surgery as stated under:-

“a.   Facitomy was done in all compartments of left leg

b.     Fracture fixed, with external fixture, no plasteris required.

c.     Desired dressing was done and Leg was placed on B.B. Splint and finally briefed all concerned Hospital staff in emergency to monitor & maintain vitals.”

 

11.    The complainant, Vijay Pal put his thumb impression on the consent form and the witnesses of Harbeer Singh and Raj Pal were also put on the consent form.  On 18.11.2000, the complainant again gave a consent letter for amputation of left lower limb below the knee.  On this consent letter, the left thumb impression as well as signatures of Vijay Pal have been affixed.  Further, affidavits have been filed by Harbeer Singh and Raj Pal Singh in which they have corroborated the version given by Dr. B.P. Singh and also stated that the case lodged against Dr. B.P. Singh was false and baseless.  Another affidavit filed by Dr. Binod Samal, Senior Consultant Surgeon is on record, saying that in his expert opinion, Dr. B.P. Singh had managed the case as per prescribed protocol and no negligence was there on his part.

 

12.    Further, it has been stated in the version given by Dr. B.P. Singh in his affidavit that Vijay Pal alongwith his attendants had gone to some local doctor on the date of the accident, who did the massage and applied a bamboo stick with very tight bandage upto knee joint and then sent him home.  When the patient came to Prayag Hospital, Avascular Gangrene had already been established.  The version given by the OPs about visit to a local doctor and treatment given by him has not been denied by the complainants anywhere.  From the complaint, however, it is clear that after the incident, the complainant did not go to the OP Hospital on the same day, rather it is mentioned in the complaint that he was hospitalised on 29.09.2000, whereas the incident had happened on 28.09.2000.  The OPs on the other hand says that the incident had happened on 27.09.2000 and that the complainant came to them after two days.  However, the date of admission in the OP Hospital has been stated to be 29.09.2000, meaning thereby that the complainant did not reach the OP hospital on the date of the incident and that he must have gone for treatment somewhere else on the date of the incident.

 

13.    Considering the entire position brought on record, it is made out that the allegation of medical negligence is not substantiated from the facts and circumstances governing the case.  In his affidavit Dr. B.P. Singh has stated that he is a qualified surgeon having degrees of MS (ENT) and MS (Ortho.).  It is clear, therefore, that he and his team possessed the requisite skills to treat the patient.  Further, nothing has been proved from record which may establish that the attending doctors failed to exercise their legal duty of care towards the patient and that they did not exhibit the requisite skills expected from trained professionals.  It is true that amputation of the patient’s leg had to be done below the knee joint but that does not establish that there was any negligence in duty on the part of the hospital or the doctors and whether the patient could have been treated in a better way.

 

14.     For the reasons stated above, we do not find any merit in the consumer complaint and the same deserves to be dismissed.  This revision petition is, therefore, allowed and the orders passed by the consumer fora below are set aside and the consumer complaint stands dismissed.  It is also made clear that if any payment has been made by the OPs to the complainant by way of compensation, other than the coverage of to and fro and allied expenses, the OPs shall be free to recover the same from the complainants in accordance with law.  There shall be no order as to costs.

 
......................J
V.K. JAIN
PRESIDING MEMBER
......................
DR. B.C. GUPTA
MEMBER