B.N. Sinha, President:
1. The Complainant has filed this case against the Opposite Party an eminent Orthopaedic Surgeon, alleging negligence in diagnosis and treatment by him and claiming compensation for the alleged loss and injury caused to him on that account.
2. The case as alleged by the Complainant in his complaint petition may be briefly stated. On 8.4.93 the Complainant sustained fracture injury on his left hand elbow region and after X-ray done on advise of local Pharmasist who was given first aid treatment and bandaging at Muzaffarpur. The Complainant came to Patna on 9.4.93 and contacted the Opposite Party in his clinic at Saidpur, Patna, and deposited his consultation fee. On examination of the Complainant's injury and X-ray report the Opposite Party directed the Complainant to report in Popular Nursing Home, Patna at 2.00 p.m. on the same day after getting some pathological tests done in Shanker Micro Pathological Laboratory, Patna. The Complainant accordingly got the pathological tests done and reported at Popular Nursing Home at the appointed time where the Opposite Party examined his injury after removing the bandage and on his direction the Complainant was admitted in the Popular Nursing Home and his treatment started Although the Complainant paid the fees of the Opposite Party, to his utter surprise some other doctors of Opposite Party were attending him? On 13.4.93 the Opposite Party again examined the Complainant and suggested for surgical operation, the fees and other charges regarding which were deposited by the Complainant. On 13.4.93 and on 16.4.93 the Complainant was operated after administering Anaesthesia each time but the Complainant learnt that both the operation were conducted by some other doctors of the O.P: and not by the O.P. himself. On 22.4.93, 23.4.93 and 24.4.93 the Complainant was examined in the dressing room of the Nursing Home bythe Assistant Doctor of the O.P. and every time he was told that the operation is completely O.K. On 26.4.93 the O.P. examined the Complainant and told him that the final surgical operation of the bone of the complainant's wounded hand would be performed for which some imported materials would be used and fixed in the bone and the opposite party fixed 27.4.93 for that operation and directed the Complainant to meet Das Babu Accountant. On 27.4.93 the pre-operation formalities were done with the Complainant and "operation treatment was started". On 28.4.93 the Assistant Doctor of the O.P. directed the Complainant to attend the clinic at 8.00 to meet the Chief. On 28.4.93 the Complainant was told by the O.P. that the operation fee deposited will be refunded, that injection will be injected in the bone at 2.00 p.m., that Physiothrophy would be started from that date under the supervision of Nand Kishore Ji and some medicines were also advised. On enquiry the Opposite Party informed the complainant that "the wound has started "heeling up and that he should carry on the advise". The complainant started to follow up the advise from the same day. His physiothrophy started on 28.4.93 for a week under the supervision of Nand Kishore Ji. On 29.4.93 the complainant was discharged from the Popular Nursing Home and he was directed to attend the clinic of the Opposite Party after a week. On 5.5.93 the complainant met the O.P. who told him to come after two months. On 6.5.93 the complainant returned to Muzaffarpur where on 8.5.93 the complainant consulted one Dr. Ratan Ranjan, Orthopaedic Surgeon of Muzaffarpur with all papers of treatment and he advised him for immediate operation. On 17.5.93 the complainant went to Patna alongwith Dr. Ratan Ranjan's prescription and met the Opposite Party who referred the complainant to Dr. N.M. Sinha, a Plastic Surgeon, whom the complainant met and he was advised for Skin Grafting for which the complainant was asked to get himself admitted in the Korji Hospital for two months and the complainant was informed that the operation will be in three stages and the treatment expenses would be about Rs. 20,000.00. On 20.5.93 the complainant consulted Dr. R.N. Singh an Orthopaedic Surgeon who told him that there was no need of operation because the operation may make the elbow non-functional and non-rotational and there was no need of skin grafting. The complainant rushed to Delhi and got himself examined by a team of Orthopaedic Doctors in Sir Ganga Ram Hospital and the doctors advised him not to have surgical operation. After some days the complainant started feeling pain in his wounded hand and fingers. Then he again met the Opposite Party on 9.7.93 and after getting some pathological tests done on 14.7.93 the Opposite Party advised him for surgical operation to remove puss and dead bone and 16.7.93 was fixed for that operation. But in the mean time the complainant consulted Dr. Shatrughan Ram another Orthopaedic Surgeon on 9.7.93 and Dr. R.N. Sinha on 12.7.93. Both of them also advised an "early operation of pus". Under the direction of the Opposite Party the complainant met Das Babu Opposite Party's Accountant and before depositing fee the complainant asked him as to why the Opposite Party did not perform operation earlier when he had deposited fee for the same. But Das Babu could not give satisfactory reply and therefore the complainant grew suspicious and apprehensive and decided to be operated by said Dr. Shatrughan Ram who has performed the operation of the complainant's left hand and he is still under his treatment with no hope of permanent cure since Dr. Shatrughan Ram has clearly told the complainant that no treatment of his bone fracture was possible due to much delay and negligence and he may suffer infection in wound in future after some interval and amputation of his left hand in that case may become necessary to save his life. Under these circumstances the complainant has every reason to believe that the present situation of his injury has arisen only due to negligence in diagnosis and treatment as well as deficiency in service on the part of the Opposite Party due to which the complainant has suffered loss of left hand, expenses and mental agony and he is entitled to compensation of Rs. 9,15,422.00 from the Opposite Party with interest @ 18% per annum on the said amount with effect from the date of loss i.e., 9.4.93 till the date of payment.
3. The Opposite Party appeared and filed written version supported by an affida-vit stoutly controverting the allegations of negligence and deficiency of service made by the complainant and has challenged the maintainability of the case at its very thresh hold under the Consumer Protection Act (hereinafter called the Act) and refuted the claim of the complainant for. compensation stating interalia as follows.
4. On 9.4.93 the complainant reported at his clinic with the wounded hand stiched and a soiled bandage thereon. He was examined by the assistant doctor of the Opposite Party, history of his wound as given by the complainant was noted and sent to the Opposite Party for expert examination. As it was an open wound and required proper examination under proper condition, the complainant was asked by the O.P. to report at Popular Nursing Home at 2 p.m. as the Opposite Party visits Popular Nursing Home on Monday, Wednesday and Friday in the afternoon at 2 p.m., only which was made known to the complainant and 9.4.93 was Friday. The patient was duly examined by the O.P. at 2 p.m. The complainant was found to have sustained compound comminuted fracutre of the upper end of the left arm at the point of the elbow causing comminuition of oleranon i.e. the bone was broken into man pieces; the wound was comminucating with the joint which was another unfavourable situation and the wound was found contaminated and infected. The complainant was diabitic as there was sugar in the urine. Under these circumstances it was decided that the proper course to avoid further complication was to give the limb sufficient rest and hence the complainant was hospitalised. His limb was enclosed in a well fitting plaster cast, the limb was kept in an elevated position to reduce the swelling and appropriate drugtherapy was instituted. His condition improved and the movement of his fingers and thumb was restored to normal. On 12.4.93 the complainant was re-examined by the Opposite Party and it was found that the surrounding inflammation had settled down and diabetes has been brought under control and it was therefore decided to perform a thorough wound debridgement under general anaesthesia so as to remove all the contaminants. As the debridgement in the complainant's case was of an emergent nature anddelay could have given rise to super imposed infection which is always to be avoided and which is known to be more resistant to treatment, it was done on 13.4.93 by Dr. John Mukhopadhya, M.B.B.S., F.R.C.S. Meh (Orth) L'Pool who is fully qualified and competent Orthopaedic Surgeon and who assists the O.P. with operations on the days on which the O.P. does not operate and in the management of cases of an emergency nature. As 13.4.93 was not the visiting day of the O.P., the debridgement i.e. cleaning of wounds, which is a minor procedure and is always done by assistants in all hospitals of the world was done by Dr. John Mukhopadhya and it was done most efficiently which is proved by the fact that the wound had become ready for split thickness skin grafting which was performed on 16.4.93 Friday. Skin grafting was entirely successful and the wound became closed thereby removing the risks and dangers of further contamination of the bone and joint. It was decided in the interest of the complainant that operation should not be undertaken without providing a full thickness skingraft over the whole area of the original wound and he referred the complainant to Dr. N.M. Sinha Who is a reputed Plastic Surgeon for that purpose. Dr. Sinha examined the complainant and agreed to perform a full thickness skingraft. No operation was therefore undertaken and the operation fee was refunded to the complainant and in the meantime the complainant was asked to perform certain exercises in order to gain mobility in the injured joint. The complainant however dis-appeared from the O.P. care and it appears that he consulted Dr. Ratan Ranjan of Muzaffarpur on 8.5.93 who examined him and found that the complainant had recovered a range of left elbow movement to the extent of 0-90 degree which is considered as excellent range of movement in a serious bone and joint wound of this nature. It appears that Dr. Ratan Ranjan advised an operation which the patient did not undergo. The patient again reported to the O.P. on 27th April, 1993 and he was again advised full thickness skin replacement under the supervision of Dr. N.M. Sinha. But the complainant did not follow the advise given by the Opposite Party and as such the Opposite Party's responsibility towards his treatment ceased. The complainant then consulted Dr. R.N. Singh, Meh., Orth., F.R.C.S. of Patna on 26.5.93 and Dr. Singh considered the result satisfactory and further stated that an operation was likely to cause stiffness of joint. Thereafter it appears that on 4.6.93 the complainant reported to Sir Ganga Ram Hospital, New Delhi where he was examined as Prof. P.S. Maini's out-patient and the doctor who examined him has noted that his result was considered satisfactory and no surgical interference was required and the complainant was advised to report after three months. There is no evidence to indicate that any of the surgeon consulted behind the back of the Opposite Party has stated that the initial treatment given by the Opposite Party was wrong and unsatisfactory. The course of treatment given to the complainant by the Opposite Party fully conforms with the best standard and the procedure adopted by the O.P. in this case is the well recognised standard procedure accepted all over the world. (The Opposite Party has annexed photo stat copy of an extract from Watson Jones Fractures Joint Injuries Vol. I page 941 as Annexure C in support of his this assertion). Since the complainant did not follow the advise given by the O.P., what happened afterwards cannot by any stretch of imagination be attributed to any negligence on the part of the Opposite Party during the period when he was under the care of the O.P. The range of elbow movement verified by two independent surgeons behind the back of the Opposite Party was better than can be expected in such cases. If the range of the movement of elbow has at all deteriorated from the time he left the Opposite Party's treatment, it has been caused on account of the treatment given to him by some other doctors consulted bythe complainant. In fact the complainant himself is to be blamed entirely for not following the advise of the O.P. who is an Orthopaedic Surgeon of International repute. There has been no deficiency in service and negligence in diagonosis and treatment in any manner what so ever. On these grounds the O.P. has asserted that the complaint is fit to be rejected.
5. In view of the preliminary objections raised by the O.P. against the maintainability of the case under the Act, we considered it fit to hear arguments on this point in the first instance before hearing the case on merits, if it is found necessary after deciding the question of its maintainability under the Act.
6. It has been submitted by the learned Counsel for the Opposite Party that on the complainant's own showing his injury was given first aid and bandaged at Muzaffarpur before he came under the treatment of the Opposite Party and operation has been performed by Dr. Shatrughan Ram and he is still under his treatment after he withdrew himself from the treatment of the Opposite Party, hence it has to be decided first as to what has caused the disability of his left hand, which requires an elaborate and detailed evidence which cannot be done under the Act. There appears substance in this submission on behalf of the Opposite Party. It is evident from the facts mentioned above that the complainant did not follow the course of treatment suggested by the Opposite Party and withdrew himself from the treatment of the Opposite Party and got the operation performed by Dr. Shatrughan Ram. It appears from the prescription dated 8.5.93 of Dr. Ratan Ranjan that the complainant had recovered a range of left elbow movement to the extent of 0 to 90 degrees and from the prescription dated 4.6.93 of Sri Ganga Ram Hospital that the result was considered satisfactory and no surgical interference was indicated. Photo stat copies of these two prescriptions have been filed by the complainant with the complaint petition. The O.P. has asserted relying on these findings that progress as a result of the treatment given to the complainant by the O.P. was quite satisfactory and if there has been deterioration in the range of movement of the complainant's elbow, it has been caused on account of the treatment given by some other doctor after the complainant withdrew himself from the treatment of the O.P. Under these circumstances it has to be ascertained as to what has caused disability, if any, of his left hand. It involves determination of complicated question of disputed facts which requires taking of extensive oral evidence as well as scrutiny of documentary evidence, which cannot be done by this Commission as the proceedings under the Act are only summary in nature.
7. Moreover, the O.P. in his written version has asserted on affidavit that the procedure adopted by the O.P. in this case is the well recognised standard procedure accepted all over the world and he has filed photo stat copy of the extract from Watson Jones Fractures-Joint Injuries, Vol.-I, page-401 in support of his this assertion. The complainant on other hand has alleged in his complaint petition that (a) on 8.5.93 Dr. Ratan Ranjan after examining him advised for immediate operation and told him and this operation should have held in the beginning, that (b) on 26.5.93 Dr. R.N. Singh examining the complainant told him that there was no need for skin grafting and that the broken bone should have been set at the earlier stage and that (c) in Sri Ganga Ram Hospital the complainant was told that if the operation would have been done at early stage, he could have been cured. Of course the complainant in his affidavit has stated that these statements are true to his knowledge. But there is nothing in the photo stat copies of the prescriptions (which have been filed with the complaint petition) of Dr. Ratan Ranjan, Dr. R.N. Singh and Sri Ganga Ram Hospital to support these assertions made by the complainant in his complaint petition. But even if these assertions made by the complainant are accepted, decision has to be taken as to which form of treatment would have been proper and correct the course of treatment adopted by the Opposite Party or the other one about which the complainant was told by Dr. Ratan Ranjan, Dr. R.N. Singh and by the doctors in Sri Ganga Ram Hospital. The decision on this question also requires elaborate evidence oral and documentary which cannot be done in a proceeding under this Act which is summary in nature.
8. But that apart when there are two genuinely responsible school of thought about the method to be adopted in fixing the fracture, the Courts should not place the hall mark of legality upon one form of treatment. We are fortified in our view by the decision of the National Commission in the case of R. Gopinathan v. Eskegee Medical Foundation Private Ltd. (Owning Devaki Hospital) and Anr., I (1994) CPJ 147 (NC) in which the National Commission has said so adopting the following observations made by Justice Barrie in Moore v. Lewishan Group:â
"When there are two genuinely responsible schools of thought about the management of a clinic situation, the Courts could do no great disservice to the community or the advancement of medical science than to place the hall mark of legality upon one form of treatment."
9. For these reasons we are constrained to uphold the objection taken on behalf of the Opposite Party and dismiss the complaint. The complainant is directed to pay Rs. 1,000/- as cost to the Opposite Party.
Complaint dismissed with costs.