D.P.S. Choudhary, President:
1. Appellant is O.P. who has preferred this appeal against the order dated 18.12.2002 passed by District Forum, Banka in Complaint Case No. 42/2001 directing the appellant to pay a sum of Rs. 1,16,000/- by way of compensation within two months from the date of order besides the interest @ 12% per annum.
2. The brief fact of the case is that complainant filed the case before the District Forum alleging therein that he had a fracture on the right thigh in the year 1993. He was treated at Bhagalpur by Dr. Pradeep Kumar who fixed plate on his broken thigh. After four months he was in a position to move. He was advised to get the plate removed by an expert doctor. The complainant alongwith his father approached the appellant-O.P. on 7.2.2001. The appellant got his right thigh X-rayed and advised the complainant that his bone have been completely joined and it will be safe to remove the plate and screw from his right thigh. The complainant consented for the same and on 9.2.2001 the appellant got him admitted in his clinic at Banka and operated upon his right thigh. Thereafter his right thigh was plastered and the appellant advised him to come to his clinic after 45 days. Thereafter, the complainant went to the clinic of the appellant after 45 days and his right thigh was again X-rayed. The complainant was shocked to know that his right thigh bone which has earlier joined have again been broken and five screws were still fixed in the bone. The complainant contention is that appellant has performed his operation defectively to extract money from him. The appellant asked him that another operation shall be performed and he should arrange money for the same. The complainants and his father left the clinic of the appellant and rushed to Bhagalpur and got himself examined by Dr. Pradeep Kumar. He opined that the problem of the broken bones still persisted and advised him that he was to be operated again. On 21.4.2001 the complainant was again operated by Dr. Pradeep Kumar at Bhagalpur. A fresh plate with screw were fitted on his bones.
3. On the basis of the above fact the allegation of the complainant is that appellant-O.P. was not competent to perform such operation but inspite of that he operated his right thigh defectively which caused him physical, mental and economic loss and agony. The complainant is a student and also helps in the business of his father who runs a readymade shop. The complainant served a legal notice to the appellant and claimed Rs. two lacs. The appellant did not reply and thereafter he filed the case before the Forum.
4. The complainant in support of his case filed before the Forum Exhibit-1, which is the prescription of the appellant dated 7.2.2001, 14.3.2001, 22.3.2001 and 23.3.2001. The prescription mentions that complainant was advised to get his right thigh X-rayed. Thereafter, he was advised for operation and also to consult a physician. Some medicines were also prescribed by the appellant. Exhibit-2/A is another prescription of the appellant dated 9.5.1997 which shows that complainant has approached him for removing the plate and screw from his right thigh. Exhibit-1/A is the prescription of Dr. Pradeep Kumar who has performed second operation of the complainant which mentions that X-ray plate shows that earlier screw fitted on the bones of the complainant were found broken and a wrong attempt was made by the doctor to remove the plate and screw. Exhibit -1/B and Exhibit-2 are the prescriptions of doctor which shows that after second operation fresh plates were fitted to the right thigh of the complainant and after some time he had improved and he was in a position to move with the help of caliper. Some affidavits on behalf of the local person have been filed to show that complainant has approached the appellant in their knowledge for removing the plate and screws from his right thigh but the operation was not successful. They had advised the complainant to approach a qualified doctor at Bhagalpur for his second operation. They have also mentioned in their affidavits that appellant was not a well qualified doctor.
5. The appellant appeared and filed written statement in which he has accepted that he had performed the operation of the right thigh on 9.2.2001 and has removed some of the broken screws and advised him to report after 45 days. The complainant did not come to his clinic after 45 days and went to another doctor to Bhagalpur. According to the appellant at the time of performing operation it was not possible to remove all the screws, therefore, he has removed only some of the screws and asked the complainant to come again after 45 days so that remaining plate and screws may be removed. He has denied the allegation that he is not the competent doctor and only to extract money he has performed operation inefficiently. According to the appellant the growth of the bones is an automatic process and when it joins there is every possibility that some of the screws are broken. Therefore, he has removed some of the broken screws in his first operation and had advised the complainant that after 45 days another operation shall be conducted to remove the entire broken plate and screws. The complainant has also not followed his advise after first operation and he was moving freely which must have damaged the broken bones.
6. The main contention of the appellant is that there is no expert evidence or any affidavit on the record to show that the operation performed by him was defective or he was careless in performing the said operation. According to the appellant the prescriptions of Dr. Pradeep Kumar filed on behalf of the complainant do not support the contention that he is inefficient doctor or he performed the operation negligently. The prescription of Dr. Pradeep Kumar only mentions that he found some broken screws on the right thigh of the complainant when he performed the second operation. This fact is not denied because only some of the screws were removed in the first operation of the complainant. He has advised him to come again after 45 days so that by another operation all the plates and screws may be removed. The complainant did not obey his advise. He moved freely which must have damaged his joint bones which may be the reason for of the screws.
7. The District Forum after considering the submissions of the parties and the materials on record has come to the finding that appellant-O.P. was negligent in his duty and has not performed the first operation of the complainant efficiently. The complainant has suffered a lot, both physical and mental due to inefficiency and carelessness of the doctor-appellant.
8. The learned Lawyer appearing on behalf of the complainant-respondent submitted that from the prescription of Dr. Pradeep Kumar this fact is proved beyond doubt that operation performed by the appellant has damaged the bones of the complainant. The operation was not performed efficiently. The appellant has broken the screws while removing them which prima facie proves that he is inefficient doctor. The appellant has never asked the complainant that some of the screws have been left and shall be removed after 45 days after another operation. The doctor has only asked him to come after 45 days for check-up. He went to the clinic of the appellant after 45 days and after X-ray it was found that the bones have again broken and screw plates were also found to be broken. After seeing the X-ray, the complainant and his parents were surprised and then they had to rush to Bhagalpur for expert opinion. Therefore, X-ray reports and the prescription of Dr. Pradeep Kumar prove beyond doubt that appellant has not performed his first operation correctly and due to his inefficiency, he has suffered a lot and he was operated on second time. The learned Lawyer further submitted that the affidavit filed on behalf of the appellant proves beyond doubt that appellant is inefficient doctor and he operted him only to extract money and he was not competent to perform such operation.
9. From the submissions made on behalf of the parties and after considering the material on record and the journals filed on behalf of the appellant âMannual of internal fixationâ and some of the case-laws on the point of medical negligence, we find that most of the facts of the case are admitted. The appellant has performed the operation on the right thigh of the complainant and has tried to remove the screws and plates fitted on his thigh. After 45 days, when there was second X-ray on the advise of the doctor it was found that joint bones have again broken and some of the screws were still fitted with the bones. Therefore, he was operated second time at Bhagalpur by Dr. Pradeep Kumar.
10. The main point for the decision in the case arises is, whether the operation conducted by the appellant negligently, inefficiently or the doctor performed his duty as an expert in ordinary course of a doctors duty. The settled priciple in such cases is that the complainant must produce expert medical evidence in support of his case of negligence and inefficiency of the doctor against whom the case has been brought. In absence of production of any expert evidence indicating negligence, the O.P. -doctor cannot be held negligent in his service in treating the patient as held by the National Commission and the State Commissions in several decisions including CPR 2000 Volume-3, page 321; CPR 2000 Volume-3 page 202, and 2000 CPJ page 220. We have carefully perused the prescription and report of Dr. Pradeep Kumar who has performed second operation of the complainant. The doctor has not mentioned in his report or prescription that earlier operation performed by the appellant was wrong or it was not performed by an expert Surgeon. It is not the allegation of the complainant that appellant is not a qualified doctor. The only allegation is that he performed the operation negligently to extract money. The affidavit filed on behalf of the complainant do not prove that appellant is not a qualified doctor to perform such operation and he performed the operation carelessly and negligently. The affidavit mentions that there is a bad reputation of the appellant-doctor in the locality for extracting money from the patients.
11. A charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car as held in the famous case of Hucks v. Cole, in which Lord Denning held that such charge affects the professional status and reputation of a doctor. Therefore, the burden of proof is correspondingly greater. It is known fact that with the best skill in the world things sometimes went amiss in medical treatment. A doctor was not to be held negligent simply because something went wrong. For any error doctor cannot be held liable. He can only be liable when he fell below the standard of a reasonably competent practitioner in his field. In this case the complainant has not adduced any expert opinion to prove that appellant-doctor has adopted the line of treatment below the standard which a normal doctor should have adopted. A doctor cannot be held responsible if someone else of better skill and knowledge would have prescribed and performed a better treatment. This view has been taken by Supreme Court and also by the National Commission. In the famous case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, the Supreme Court held that the skill of two doctors may differ and they may prescribe different treatment. This will not be a basis to come to the conclusion that one doctor who adopted the skill but did not succeed with the patient was negligent in his duty. In the fact and circumstances it is incumbent upon the complainant to prove that appellant-doctor was negligent in the line of treatment and he performed the operation on the complainant carelessly with a view to extract the money. It is also not proved that the appellant-doctor was not competent to perform such operation.
12. After considering the facts, circumstances and material on record we are of the view that no case of negligence or deficiency in service is proved against the appellant-doctor. The finding arrived at by the District Forum are not based on any expert evidence. The District Forum has wrongly relied on the prescription and report of Dr. Pradeep Kumar in which it is not mentioned that earlier operation performed by the appellant-doctor was wrong or such type of operation should not have been performed by the appellant as he was not qualified for the same. Therefore, the finding arrived at by the District Forum is not sustainable in the eye of law.
13. In the result, we come to the finding that impugned order is fit to be set-aside. Accordingly, the appeal is allowed and the impugned order is set aside. However, there shall be no order as to costs.
Appeal allowed.