Judgment:K.C. Gupta, President:
1. Briefly stated the facts are that the complainant Sh. Nirmal Kapoor is resident of House No. 3079, Sector-15-D, Chandigarh and has been working as Assistant in legal department with Life Insurance Corporation in the divisional office, Sector-17-B, Chandigarh for the last many years. He is unmarried and is having another younger unmarried brother and old mother whose age is about 70 years.
2. It was next averred that complainant on 14.8.1999 had gone to Patiala on official duty in order to attend a Court case in a Consumer Court at Patiala. At about 13.30 p.m. he met with an accident at Patiala in which he sustained multiple injuries, including the injuries on left knee and fracture of both lower bones of his left leg. He was immediately taken to emergency ward of Rajindra Hospital, Patiala, where he was kept for about three hours and was provided first aid. X-rays of his left leg were taken at Rajindra Hospital, Patiala.
3. It was further averred that after taking X-rays of his left leg, he was shifted to Trauma Ward at PGI, Chandigarh (respondent No.1) and was admitted there at about 8.30 p.m. on 14.8.99. At the time of admission, his left leg was profusely bleeding and was having swelling and he was experiencing severe pain. The treatment-cum-discharge card issued by PGI is Annexure C-3. The attending doctors of respondent No.1 after his preliminary examination, confirmed the fracture of both bones of the left leg and also suspected to be a case of âCompartment Syndromeâ. However, in the PGI, no senior doctor attended him.
4. It was next averred that since both lower bones of his left leg were fractured and apart from the fracture of both bones of left leg, there was an external and internal injuries on the left leg as the blood vessels of the left leg were ruptured and badly damaged and with the result there was profusely bleeding and the expected treatment prescribed in the medical science was to perform surgery to repair the ruptured and damaged blood vessels and to do other needful as prescribed within a span of 24 hours, to look into the external and internal injuries of the left leg and put the leg under traction as both the bones were fractured and to rule out the dangerous disease âcompartment syndromeâ by performing tests as this was the most expected disease in such like accidental cases but he was treated with unexpected negligence and wrong treatment was given to him and he was discharged on the next very day after putting the fractured left leg with a simple slab, although he was required an immediate surgical treatment for his massive internal bleeding and the doctors attending upon him discharged him without performing the above mentioned acts.
5. It was further averred that due to negligence of doctors by not bothering to look into the internal and external injuries caused to the left leg and not by bothering to see damage done to the blood vessels by angiogram/venogram examination and providing treatment, he developed deadly disease âcompartment syndromeâ which was suspected at the initial stage and it was accompanied by Haematoma.
6. It was next averred that by exercising common prudence, it was required on the part of doctors attending upon him to chase the âcompartmental syndromeâ which was suspected initially and to treat it after its existence was established by decompressing method from some expert i.e. vascular surgeon/plastic surgeon but in the present case it was only suspected as per the initial records of the hospital but did nothing to establish and cure the same. Even at no stage right from the beginning, efforts were made to establish the same after once being suspected.
7. It was further averred that since bones of left leg were fractured and failure on the part of doctors to put the left leg under traction caused shortening of the leg, although in such cases it was mandatory to apply traction and this fact came to his knowledge after going through the report of Dr. Saluja, from whom he got himself examined on 14.9.1999 and he gave his report Annexure C-4.
8. It was next averred that by not performing surgery within 24 hours from the accident, he developed life threatening infection and Compartment Syndrome with passage of time and another act with utmost negligence was performed by doing surgery after 40 days in which an ORIF with T-buttress plate was implanted in the left leg to join the broken Tibial Condyl, which caused a lot of post-surgical complications such as blood soakage, haematoma , rapture of blood vessels and blood veins valves, Thrombosis, a permanent malignment of the broken bones of the left leg which caused a pricking pain in the whole bone of Tibia and the entire limb turned blue due to poor blood supply, Septicemia (Tetanus) and hampered blood supply in the left leg due to damaged blood vessels. The haematoma was not totally extracted from his left leg by the attending doctors and no anti-coagulant medicine was prescribed to minimize the blood clotting as blood was exposed to open air. The clotting of the blood had blocked all channels of blood supply in the left leg. The implant which was fixed by making a wrong side cut in the leg and he was advised by the expert doctors to remove the wrong implant. He was even prescribed taking of medicine of Quinine which was not required to be prescribed to him and he was supposed to be given medicine like anti coagulant.
9. It was further averred that Dr. S.S. Gill (respondent No. 3) examined him on 26.8.99 and reported that there was no âcompartment syndromeâ existing on that date and he was suffering only from fracture of both bones with swelling while initial prescription dated 14.8.99 showed that there was suspected symptoms of âCompartment Syndromeâ. The report of Dr. S.S. Gill is Annexure C-7.
10. It was next averred that on 24.9.99, he was operated upon by junior doctors respondent Nos. 5 to 7 and plate with seven screws with âTâ buttress was inserted along with bone grafting and Dr. S.S. Gill did not perform operation as promised by him on 23.9.99. The said operation was performed by junior doctors as well as trainee doctors without the assistance and guidance of senior doctors and his condition became aggravated due to the fact that the nervous system as well as circulatory system in the left leg was disturbed and dislocated during the operation and there was excessive bleeding from the stitches. Although, a drainage system was provided to drain out excess blood, but still the blood came out from the bandage and spread over the bed cover. It was on account of wrong incision given at the time of surgery. The stitches were removed after 18 days which were required to be removed normally within 7 to 10 days and the discharge-cum-follow up card showed that 30 cc haematoma was extracted from the wound/incision.
11. It was further averred that the entire operation performed in itself turned out to be an act of greater degree of negligence and the treatment turned out to be like of the rendering of services below the usual normal standard as per the medical norms.
12. Pitting Odema in the lower portion of the left leg with weakening of pulse was felt and experienced by him and subsequently the left leg became unresponsive to any medical treatment. He had developed DVT (Deep Vein Thrombosis)and the expert opinion of Sir Ganga Ram Hospital, New Delhi on 29.6.2000 Annexure C-10 confirmed it. Since, the operation was performed by inexperienced doctors, so, it caused multiple post-operative complications including causing of chronic Venous insufficiency and Deep Vein Thrombosis in the left leg and both these diseases were deadly diseases and had no permanent treatment in the world till date and due to negligence of the doctors of respondent No. 1 he had suffered permanent disability to the extent of 43% and as such he had been rendered invalid due to Compartment Syndrome, Haematoma, thrombosis, chronic venous insufficiency, coccydynia, spine coccy, arterial insufficiency and damaged nutrient arteries which supplies blood to the soft tissues, muscles and lymphatic system. In nutshell the entire blood micro-circulation channels had been blocked in the process of haematoma which was developed due to negligence on the part of doctors of respondent No. 1.
13. With these allegations, he filed complaint claiming a sum of Rs. 5 lacs as compensation for all that what had happened to him and what will happen to him in future, loss of happiness and permanent disability to the extent of 43% and also compensation for shortening of leg. He further claimed Rs. 15 lacs for future treatment and care. He also claimed Rs. 1,20,807 which he had spent for travelling, boarding and lodging and further a sum of Rs. 1,86,000 which he had spent as consultancy charges and medicine and in this way, he had spent Rs. 3,06,807 on the above mentioned counts. He next stated that Dr. C.S. Ranawat had examined him and had given an estimate of 15250 dollars for treating him in USA and for removing the deficiency up to 25% and he is also entitled to the aforesaid amounts. He further claimed Rs. 5 lacs for continuous pain which he had to suffer for whole of his life and further Rs. 5 lacs for moral support. In this manner, he has claimed a sum of Rs. 42,81,807 as follows:
| (i) | Expenditure for treatment, opinion, medicines, Travelling expenses and Boarding and lodging etc. | = Rs. 306807.00 |
| (ii) | Proposed and expected expenses (as per the Estimate of doctor) | = Rs. 15.00 lacs |
| (iii) | Compensation of account of loss of happiness, elation, admiration, mental harassment and status. | = Rs. 10.00 lacs |
| (iv) | Un-liquidated damages | = Rs. 2.50 lacs |
| (v) | Compensation for future care | = Rs. 5.00 lacs |
| (vi) | Physiotherapy and mental agony of mother | = Rs. 5.00 lacs |
| (vii) | Permanent attendant | = Rs. 50,000.00 |
| (viii) | Direct financial loss from employer | = Rs. 1,50,000.00 |
| (ix) | Cost of litigation | = Rs. 25,000.00 |
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14. Respondents contested the complaint and filed written reply. They took one preliminary objection, that the complaint is hopelessly time barred as the complainant was operated upon by them in the year 1999 and the opinion from other institutes was sought by the complainant in the year 2001 but the complaint was filed in the year 2005 which was barred by limitation. On merits, they controverted the allegations of the complainant and stated that there was no negligence on their part. The treatment given to the complainant and the surgery performed upon him were perfectly in order and in accordance with the settled medical norms. They denied that respondent Nos. 5 to 7 were incompetent to perform surgery. However, respondent No. 4 neither treated, nor operated the complainant. They next stated that the treatment was given to the complainant with due diligence, prudence and with competency and no complication of the injuries suffered by the complainant was attributable to them. They next stated that the PGI was well equipped and there was availability of doctors to attend to the emergency cases and the complainant was attended by Additional Professor Dr. Sen and was discharged on the next day as he was not fit for surgery. He was advised follow up in the OPD for treatment, so as to make him fit for surgery. He was having doubtful/suspected compartment syndrome of the left leg and in the OPD he was followed up by competent doctors and was admitted as indoor patient on 23.9.1999. He was operated upon on 24.9.99 by Dr. Mujeeb, who was the senior resident on duty and was competent to perform surgery. They also stated that the competent doctors of the institute, after clinical and other examination of the complainant, were of the view that immediate surgery could not be performed on him as the condition of his leg was not fit for surgery to be performed within 24 hours of the admission of patient. They next stated the complainant was kept under observation for âcompartment syndromeâ for next 72 hours and the attending doctors were of the opinion that in such like cases, traction was not required, instead his left leg was put under POP slab. They again repeated that surgery could not be performed immediately as the skin condition was not satisfactory. They denied that the occurrence of âcompartment syndromeâ in the case of complainant was the result of negligence on the part of treating doctors. They next stated that on examination of the patient on 20.1.2000, it was found that the fracture was fully united with natural complication of original injury i.e. âcompartment syndromeâ. They next stated that there was no post operative complications attributable to them, nor there was any defect in the surgery/treatment/implant. Thus, they were not liable for any act of negligence as no negligence was attributable to them. Therefore, they prayed that the complaint be dismissed with heavy costs being fictitious in nature.
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15. Parties adduced evidence by way of affidavits. Complainant produced his affidavit besides affidavit of Dr.Vinod Kumar. Respondents produced affidavit of Dr. S.S. Gill, Additional Professor, Department of Orthopaedics.
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16. We have heard Counsel for the complainant Mr. Ashok Sharma, Counsel for respondents Mr. Rajesh Garg and carefully gone through the file.
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17. It is an unfortunate case. The youngman of the age of about 32-33 years has become crippled for whole of his life. The first point to be determined in this case is whether the complainant has become crippled due to negligence of the doctors of Post Graduate Institute, Chandigarh, who had treated him or it is just by chance that his left leg had not been cured as expected and it had become disabled to the extent of 43% due to the injuries suffered by him in the accident. There is no dispute about it that the Post Graduate Institute, Chandigarh, is a known medical institution of the northern India which is known for its best treatment and care and having best technology in the field of medical science. The operation of the left leg of complainant was performed by respondent No. 5 Dr. Mujeeb, Senior Resident, Department of Orthopaedics, Unit No. II, PGI, Chandigarh, on 24.9.1999. There is no evidence on the file that he was not competent to perform the surgery.
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18. The case of the complainant is that it is a glaring example of utter failure on the part of doctors to exercise their ordinary intelligence and competence, rather they had not even exercised a common doctors prudence, intelligence and competence while treating him, but to talk of their extraordinary intelligence and experience. Rather, the negligence on the part of treating doctors is crystal clear and is established beyond doubt. It is further stated that respondent Nos. 5 to 7 were the doctors who had performed surgery without any authority, expertise and experience and were responsible for all the damages caused to him and played with his life. They, otherwise were not competent to perform surgery in the absence of surgeon. No evidence has been led that senior resident surgeon of the Orthopaedics Department of PGI was not competent to perform the required surgery.
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19. The complainant has submitted his affidavit besides affidavit of Dr. Vinod Kumar son of Sh. Jain Parkash, resident of House No. 3269, Sector-15-D, Chandigarh. Dr. Vinod in his affidavit stated that he was qualified doctor and had done his Masters degree in surgery in Orthopaedics from Post Graduate Institute, Chandigarh and had worked as Junior Resident during the academic year 1997 to 1999 and thereafter, worked as Senior Resident from 2000 to 2002, and for the last two years he had been working as Orthopaedics consultant to a private hospital in Sector-11, Chandigarh. When he gave his affidavit on 17.11.2005, he had experience of only four years. The experience of two years during the academic period i.e. when he was doing Masters degree in surgery, cannot be counted. He did not state in his affidavit that the doctors of PGI had acted negligently in treating the complainant. His only assertion is that certain ideal treatments were not given to him which were required to be given to him. He had mentioned that the complainant was required to be operated upon within six hours from the time of accident, but he was actually operated upon after expiry of 40 days and the delay in surgery caused Deep Vein Thrombosis because of immobilization to the complainant. He further stated that complainant was put under POP which was not an ideal treatment. He further stated that complainant was not kept under observation immediately after he was admitted for the first time for watching him for âcompartment syndromeâ/DVT. No effort was made to keep him in the hospital and on the other hand he was discharged. He further stated in his affidavit that if the complainant was given the ideal treatment and treated with due care and diligence, then he would have been a normal man with insignificant disability. The affidavit of Doctor also states that he was also under threat from his employer of losing his job as he was unable to sit for six hours with hanging leg and he had spent huge amount in travelling, giving fee to the doctors and for purchasing huge medicines. Thus, the affidavit shows that he is interested in the complainant. His evidence cannot be said to be impartial. Further, he had not stated in his affidavit that the treatment given to the complainant was wrong and not recognized by any international standard or not known to the medical science and further the doctors concerned had treated him negligently and without due care and caution. One does not know as to what is the definition of ideal treatment. If certain treatment is not ideal but proper treatment had been given as recognized by the international standard, then doctors certainly cannot be held responsible.
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20. It is true, that the complainant had developed many problems leading to âcompartment syndromeâ, Deep Vein Thrombosis or other post surgical complications leading to the present status of the complainant and these complications may not be curable and the complainant might be having 43% permanent disability in his left leg. But no evidence has been led that due to wrong treatment given by the PGI doctors and due to their negligence, the complainant had developed these complications.
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21. It is stated that the complainant had met with a roadside accident when he went to Patiala to attend some case on behalf of the office and the accident had occurred at about 13.30 p.m. on 14.8.99, in which he sustained multiple injuries, including the injuries on left knee and fracture of both lower bones of his left leg. He was admitted in Rajindra Hospital, Patiala where he was kept for a few hours and X-rays of left leg were taken. Thereafter, he was shifted to PGI, Chandigarh and was admitted at 8.30 p.m. on 14.8.99 i.e. seven hours had already elapsed when he was admitted in PGI, Chandigarh. Admittedly, at that time his leg was bleeding profusely and he was having swelling and was experiencing severe pain. The case of the complainant is that operation should have been performed on his left leg within a span of 24 hours to repair the ruptured and damaged blood vessels and to do all other needful acts i.e. doctors should have put his left leg under traction as both the bones were fractured and further to rule out the dangerous disease known as âcompartment syndromeâ by performing tests as this was the most expected disease in such like accidental cases but he was given unexpected and wrong treatment when he was discharged on the next very day, after putting the fractured left leg a simple slab. It is further the case of complainant that according to the book written by Dr. J. Maheshwari, there should have been a close watch for an impending compartment syndrome and effective early preventing measures should have been taken to prevent the serious complications and in established case early surgical decompression was necessary. He had further mentioned that there was likelihood of developing âcompartment syndromeâ if there was an injury leading to oedema of muscles, fracture haematoma within the compartment, Ischemia to the compartment leading to the muscle oedema.
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22. The respondents have placed on file affidavit of Dr. S.S. Gill, Additional Professor, Department of Orthopaedics, PGI, Chandigarh. It is dated 13.8.2005. According to him, there was no failure/negligence on the part of doctors, rather surgery had been performed and treatment had been given to the complainant with due diligence, prudence and competence and the complications of the injury suffered by the complainant were not attributable to them. He further stated that the complainant was brought to PGI on 14.8.99 and the nature of injuries and condition was recorded in brief in summary manner in the discharge and follow up card, Ex. C-3. He further stated that the complainant was attended by the Additional Professor Dr. Sen and was discharged on the next day as he was not fit for surgery and he was advised to follow up in the OPD for treatment, so as to make him fit for surgery. He further stated that the patient was having doubtful (suspected) compartment syndrome of left leg and in the OPD he was followed up by competent doctors and was ultimately admitted as indoor patient on 23.9.99 and was operated upon the very next day i.e. 24.9.99 by Dr. Mujeeb, who was Senior Resident on duty and was competent to perform surgery. He further stated that the surgery could not be performed within 24 hours of the admission as competent doctors of the PGI , after clinical and other examination of the patient, were of the view that immediate surgery could not be performed on the patient as the condition of his leg was not fit for surgery. Complainant was kept under observation for âcompartment syndromeâ for the next 72 hours and the attending doctors were of the opinion that in such like cases, traction was not required and instead POP slab was given and appropriate care was taken to see the effect of âcompartment syndromeâ and it was thought that surgery could not be performed immediately as the skin condition was not satisfactory. He also stated that the medical record showed that the patient was kept under observation for âcompartment syndromeâ and the occurrence of âcompartment syndromeâ was the result of injuries suffered by the complainant and not as a result of negligence or incompetence on the part of doctors of PGI. He further stated that the surgery was performed by competent doctors having Masters degree in Orthopaedics and respondent Nos. 5 to 7 were perfectly competent to perform surgery and thus handled the case of the complainant.
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23. In the face of affidavit of Dr. S.S. Gill, Additional Professor, PGI, Chandigarh, it was incumbent upon the complainant to summon the said doctor for cross-examination or to serve interrogatories upon him in the light of affidavit given by Dr. Vinod Kumar and Dr. S.S. Gill should have been cross-examined regarding treatment given by the doctors of PGI and it should have been suggested to him that the treatment which was given to him was not recognized treatment and in fact left leg should have been operated upon within 24 hours to prevent bleeding of the blood vessels and to repair the damaged muscles and vessels or veins. Having not done so, PGI doctors had acted negligently which led to compartment syndrome/DVT and permanent disability of left leg to the extent of 43%.
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24. The complainant had got himself examined from Dr. Sanjay Saluja, who is known to be an expert in Orthopaedics. His report dated 14.9.99 shows that the complainant was having fracture 1/3 tibia with overriding of fragments one month old and expected shortening of leg by 3/4" â 1". He further observed that no active infection was present at that time. He advised OR and IF with bone grafting and further stated that POP to continue till then. He again examined the patient on 16.2.2000 and stated that the surgery had taken place four months back and the bones were united and further advised full weight bearing and knee exercises to continue. His report did not state that the treatment given by PGI by giving POP on his left leg was wrong. On the other hand, he had advised the complainant that POP would continue till ORandIF with bone grafting was done. After surgery, he observed on 16.2.2000, that the bones were united and he was allowed full weight bearing. Thus, he did not find any fault with the treatment given to the complainant by the doctors of PGI. He also did not suspect at that time that there was any âcompartment syndromeâ. The infection at that time did not exist.
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25. The complainant was also examined by Dr. S.S. Gill on 26.8.99 and at that time there was no âcompartment syndromeâ existing and the complainant was suffering from fracture of both bones with swelling , although, initially he was suspected of âcompartment syndromeâ but it was not really established and on 26.8.99 there was no compartment syndrome. Even Dr. Saluja did not find any âcompartment syndromeâ when he examined on 14.9.99 (Ex.C-4).
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26. The Honble Supreme Court in State of Punjab v. Shiv Ram and Ors., IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=2006 (1) CPR 128 (SC) has dealt with the issue of medical negligence and laid down principles on which liability of medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=122 (2005) DLT 83 (SC)=(2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee, (1957) 1 W.L.R. 582, popularly known as Bolams Test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew (supra) read as under:
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(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : âduty, âbreach and âresulting damage.
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(2) A simple lack of care, an error or judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
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(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 practises. 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.
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27. Therefore, according to the guidelines of the Honble Supreme Court , 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 practises. In the present case, it is not proved that the doctors who attended the complainant i.e. respondent Nos. 5 to 7 were not competent. They all were having masters degree in Orthopaedics and the doctor Mujeeb, who operated upon the complainant, was Senior Resident in the PGI, Chandigarh. Thus, they possessed the requisite skill. There is no evidence, at the cost of repetition, we may say that they have not exercised reasonable competence in the given case , the skill which they did possess. Dr. S.S. Gill, Additional Professor in his affidavit has categorically stated that since, it was a roadside accident and the skin was crushed and it was not advisable to operate upon his left leg within 24 hours and some time was given by applying POP, so, that skin may settle and wound may heel, so that he could be operated upon.
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28. It has been observed by Honble Supreme Court in Vinitha Ashok (Smt.) v. Lakshmi Hospital and Others, I (2002) CPJ 4 (SC)=VI (2001) SLT 735=(2001) 8 SCC 731, that the doctor would be liable for negligence regardless of his diagnosis and treatment being approved by a body of professional opinion, if such opinion is not established to be reasonable or responsible. In the present case, at the cost of repetition, we may again say that it has not been proved on record that the treatment given to the complainant was not reasonable or responsible. There is no further evidence that the treatment which was meted out to the complainant by the doctors of PGI was prohibited one or not in accordance with the international standard or in accordance with medical jurisprudence accepted by the doctors or that of accepted norms. Dr. S.S. Gill has categorically stated in his affidavit that immediate surgery could not be performed upon the complainant as the condition of his leg was not fit for surgery and he was kept under observation. He further stated that doctors attending upon him were of the opinion that in such like cases traction was not required and instead POP slab was given. The applying of POP has been approved by another expert Dr. Saluja, from whom complainant got himself checked up. The complainant got himself examined from a large number of experts in Orthopaedics but none of them had stated that the treatment given by the PGI was wrong or they were negligent in treating the complainant. Some of the doctors also suggested for removal of the plate which was inserted in the left leg of the complainant after performing operation on 24.9.99. Although, some of the doctors suggested for removal of plate, yet later on they advised the plate to continue fearing if the plate is removed, the condition of the complainant might not become dangerous. They had suggested removal of plate due to severe pain but not due to the fact that the treatment given was wrong or they were negligent in giving treatment.
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29. The complainant has relied upon a number of authorities such as National Hospital and Anr. v. Muhammed Najeev, 2003 (1) CPR 653 of State Consumer Commission Kerla; Smt. Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385; Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr., I (1998) CPJ 1(SC); and Varadha S. Nair v. Dr. Remani N. Rajan and Ors., III (2005) CPJ 36, (National Commission), but these authorities are not applicable to the facts of the present case because it is not proved that the present status of the leg of complainant is due to the faulty treatment given by the doctors of PGI i.e. respondent Nos. 5 to 7 or they had acted in negligent manner in treating the complainant. The complainant had developed compartment syndrome and DVT. It is a matter of chance and due to natural complications of original injury and not because of any fault on behalf of respondents.
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30. Counsel for respondents also contended that the complaint is hopelessly time barred as the patient was initially admitted in the PGI on 14.8.99 and then was operated upon on 24.9.99 and the complainant had sought opinion from other doctors in the year 2001. The present complaint has been filed on 21.4.2005 i.e. beyond a period of two years. According to respondents Counsel, certainly it is time barred. However, Counsel for complainant contended that he was still getting treatment from PGI, although, he had been also getting opinion from other expert doctors. The cause of action, as far as operation is concerned, arose in the year 1999 and it became clear to him in the year 2001 vide Annexures C-9 to C-16 that his leg had become permanent disabled and could not be cured, so, certainly complaint filed in April, 2005 is time barred. The subsequent treatment will not extend the period of limitation which had started in the year 1999 at best in the year 2001 when he came to know that he had suffered disability of his leg and was not curable.
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31. Therefore, in view of the discussion above, we hold that the complainant is not entitled to compensation on any score as he has failed to prove negligence in treating him on the part of doctors of PGI and further the complaint is time barred. Hence, it is dismissed and the parties are left to bear their own costs.
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Copies of the order be communicated to the parties, free of charge.