LEELA DEVI Vs. SHATRUGHAN RAM

JUDGEMENT

(1.) Smt.Leela Devi, Appellant herein, has filed this First Appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, Bihar (hereinafter referred to as the 'State Commission') in Complaint No.46/2000 wherein State Commission has dismissed her complaint of medical negligence against Dr.Shatrughan Ram, Respondent No.1 herein and another.

(2.) The facts of the case are that the Appellant met with an accident on 28.05.1999 in which her left arm was fractured. She was admitted on 08.06.1999 in Rajeshwar Nursing Home at Kankarbagh and operated on the same day by Respondent No.1. Appellant remained under his treatment till 23.03.2000 but since her pain persisted and there appeared to be no improvement following the surgery, she requested Respondent No.1 to refer her to a better medical facility at Delhi for further treatment. Respondent No.1 accordingly referred her to All India Institute of Medical Sciences (AIIMS), Delhi. Appellant on reaching Delhi contacted Dr.A.K. Singh, Orthopaedic Surgeon in Safdarjung Hospital, Delhi where she was admitted on 11.05.2000 operated on 12.05.2000 and discharged in a satisfactory condition on 24.05.2000. According to the Appellant, in the Discharge Summary from Safdarjung Hospital, it was stated that she was operated for lower 1/3 of shaft of Humerous C DCP which led to flexon & Extension Deformity of elbow and this had occurred because of implant failure due to improper fixation. Two screws were found broken and the plate was found to be fixed anteriorily extending into the elbow joint. During the second surgery, this was set right by removing the earlier plate and fixing a new plate by way of bone grafting and replacing the broken screws. Aggrieved by the medical negligence and deficiency in service on the part of Respondents, Appellant filed a complaint before the State Commission and requested that the Respondents be directed to jointly and severally pay the Appellant, Rs.1,23,417/- with interest @ 18% per annum towards expenditure incurred on medical treatment including medicines, Rs.4 lakhs as compensation for mental agony and harassment and Rs.15,000/- towards litigation costs.

(3.) Respondent/doctor denied that there was any medical negligence in the treatment of the Appellant. According to the Respondent/doctor, the surgery was done at the Respondent's Nursing Home and the Respondent carried out the surgery according to the most acceptable and conventional method prescribed for internally fixing the fracture of the femur by plating with the help of screws. After the surgery, the Appellant showed positive signs and a check X-ray conducted thereafter indicated that there was proper alignment of the fragments. Specifically, there was no gaping between the fragments and proper screw bites which showed that the screws and the plate had been properly and rightly planted/fixed. After some days of observation and post-operative healing and medication, the Appellant was discharged and was advised to take rest and avoid any strenuous activity until the union is completed. Some mild physiotherapy was also recommended. Appellant contacted the Respondent in September, 1999 and it was noted that the union had still not been completed so she was asked to wait for some more time before taking any further treatment. An X-ray of the operated area on 7th December, 1999 showed that the union of the bones was in progress although this was slow. This was confirmed by another X-ray taken on 22.03.2000. According to the Respondents, this occurred because the patient had not followed post-operative advice regarding avoiding of any strenuous activities etc. and it was, therefore, recommended that she should undergo another surgery for grafting since the union had not occurred. The Appellant, however, requested that she be referred to Delhi for further treatment. Respondent accordingly referred her for treatment to All India Institute of Medical Sciences (AIIMS), Delhi. However, Appellant instead of going there went to Safdarjung Hospital and that too after two months. Respondent has contended that the Appellant's allegations of medical negligence and deficiency in service are not correct and the non-union of the affected bones cannot be attributed to the negligence of the Respondent/doctor because the operation was successful as confirmed by the check X-rays. The Appellant has also not been able to indicate as to what the Respondents should have done during the surgery and what they failed to do. On the other hand, it is medically well established that even after successful operation involving open reduction and internal fixation by plating with the help of screws, non-union can result and thereafter it is the general practice that in such cases grafting is the next stage of treatment. Grafting is not recommended directly to any patient unless there is non-union of the bones.