BHAV HANDBHAI MANJIBHAI LAKHANI Vs. BHUPENDRA D SAGAR

JUDGEMENT

(1.) The complainant has claimed the amount of Rs.1,03,300/- from the opposite party Dr. Bhupendra D. Sagar for negligence in performing the operation of the neck of femur of the complainant on 19.2.91 in the nursing home of the opposite party. The complainant met with the accident on 18.2.91 and was admitted in the nursing home of the opposite party and on taking X-ray it was found that fracture to left hip was caused by the accident. The opposite party advised for immediate operation and also promised that the complainant would be completely cured within three months. The operation was performed on 19.2.91 under general anaesthesia and the total expenses to the complainant for that operation was Rs.17,000/-. The complainant was indoor patient for about 10 days and then was discharged with the advice not to make any movement. According to the complainant he was confined to bed upto 1.5.91 and had complained to the opposite party several times about the pain at the place of the operation and the opposite party had given him consolation and stated that some pain will be there but will be cured. On 1.5.91 the complainant was taken to the opposite party and when X-ray was taken, he came to know that operation had failed and that was only because of the negligence of the opposite party. According to the complainant the bone was not properly fixed and was fixed at upper portion and left leg shortened by 2.5 inches. The opposite party on referring the X-ray admitted that the operation had failed and advised for second operation and assured no such negligence would occur during the second operation and the complainant will be completely cured. As the complainant had lost confidence in the opposite party he consulted another orthopaedic surgeon Dr. Aditya Upadhyaya who operated him on 7.5.91. Dr. Upadhyaya had examined and had given certificates to the complainant which are produced on the record. The complainant had incurred the expenditure of Rs.10,500/- for the second operation. The complainant could not attend the duty from 18.2.91 to 9.10.91 because of the negligence and defective operation by the opposite party. The complainant has accordingly claimed Rs.17,000/- for the operation performed by the opposite party, Rs.10,500/- for the expenses for the second operation, Rs.25,800/- for loss of salary, Rs.30,000/- for pain and suffering and Rs.20,000/- for mental agony to the complainant and his family and Rs.500 /- for the cost of the complaint and 18% interest on the amount awarded.

(2.) The opposite party by reply (Exh.8) contended that this Forum has no jurisdiction as services of the doctor cannot be considered to be "service" under the provisions of the Consumer Protection Act, 1986 and that disputed questions of fact and law are involved and, therefore, the complainant should be directed to file civil suit. The complainant has got Rs.42,000/- from *new India Assurance Company as personal accident compensation and has also filed motor accident claim petition as he was owner and driver of the scooter involved in accident. Admitting the fact that the complainant was admitted in the nursing home of the opposite party it is stated that on 18.2.91, on X-ray being taken it was diagnosed that the left hip was fractured and the complainant had transcervical fracture neck of femur and was advised operation. According to the opposite party the complainant was explained that because of the critical blood supply to head of femur, as proxinal fracture frgnent was very small, chances of nonunion and avascular necrosis are very high as compared to other fracture. The complainant was also advised to take rest for long time to heal the fracture after operation and during that period of union muscle-force or movement in bed or premature weight bearing may displace the fracture. The complainant was also explained that if the fracture did not get united he will require to undergo second surgery. The complainant then agreed to undergo the operation and signed the consent paper. According to the opposite party 25 to 30% rate non-union, delayed union and avascular necrosis do occur and they are beyond the control of the surgeon. On 19.2.91 the opposite party performed the operation by which after closed reduction of fracture neck femur, 3" sp. nail with 4 hole plate after medical displacement osteotomy was put and boot plaster was given. The operation was performed according to the standard method and after the operation X-ray was taken which showed fracture was well reduced and implants were in proper position. All these facts are stated in the case papers produced. According to the opposite party, inspite of the post-operative good care, good general condition fracture did not unite even after 6 months, as it had remained unsolved fracture, because of short fragnent. The complainant was discharged from the clinic on 28.2.91. It is contended by the opposite party that it appeared that the complainant had not taken proper care after the operation and after discharge from the clinic and there was loss of fixation as fracture had not united within 2.5 months as it was the case of delayed union and it had taken atleast 8 months to unite the fracture. The X-ray had showed that fracture had not united which has resulted in loss of fixation. The complainant had not complained for pain from time to time. It is also stated by the opposite party that X-ray was taken on or about 1.5.91 which showed that there was non-union of the fracture which resulted in the loss of fixation. It is denied that the operation was unsuccessful and that too because of the negligence of the opposite party. It is also stated that due to the improper care at home and after discharge from clinic there was loss of fixation because of the delayed union of fracture. Improper care knowingly or unknowingly weight bearing on the left foot would have caused loss of fixation which in turn would show shortening of the leg. The opposite party stated that it appears that the complainant had taken further treatment from Dr. Aditya Upadhyaya and got further operation, performed by him.

(3.) From the admitted fact by the opposite party in the written reply as well as in the evidence it is clear that closed reduction of fracture neck femur was done and nail and plate were fixed but the fracture did not unite and the loss of fixation had also caused. According to the opposite party when the operation was performed the reduction was perfect but subsequently after leaving the clinic the complainant must hot have taken proper care and, therefore, the bones did not unite and loss of fixation also occured. It is admitted that the plaster was done and the complainant was advised rest. The complainant has clearly stated that he was feeling pain at the place of fracture and had complained to the opposite party often but he was only given consolation. It is quite natural that when the fracture had not united and loss of fixation had taken place, the complainant would feel pain and he would consult the opposite party who had performed the operation. As such there is no reason not to accept the evidence of the complainant on this point. When the plate was fixed, it is quite natural that the complainant must have taken proper care as he was practically confined to bed and, therefore, the question of not taking proper care or weight bearing on left leg did not arise. In such circumstances, as such, the complainant would not take any weight even of the body on the left leg. It therefore cannot be accepted that the non-union of the fracture must be because of not taking proper care by the complainant or taking weight on the left leg. The evidence is clear that subsequently, Dr. Upadhyaya performed the operation on 17.5.91 and after that the bones have united and the shortening of the left leg is also reduced. That establishes that there were no other reasons as contended by the opposite party for which the non union of bones had taken place after the operation by the opposite party. If that would have been the position, then the bone would not have united after the operation by Dr. Upadhyaya.