Revision Petition No. 2677 of 2010 decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi.
The original opposite party before the District Consumer Disputes Redressal Forum, Gaya, challenged the order which held the opposite party/ petitioner guilty of deficiency in service in treating the son of the complainant/ respondent for dislocation of his left elbow and directed the opposite party to pay compensation of Rs.50,000 to the complainant/respondent.
The main point raised by the petitioner was that the complainant had resorted to a plain lie in alleging that though the petitioner had treated complainant's son for dislocation of his left elbow on 08-02-1998, the x-ray of the said arm of the patient was taken on 09-02-1998 and that x-ray of the patient's dislocated arm was actually taken on 08-02-1998 itself, i.e., before the petitioner did the reduction and applied hard plaster to fix the dislocation.
It was observed that the orthopaedic procedure of reduction was performed on the complainant's son on 08-02-1998. Since the complainant stated in his complaint that his son was taken to the operation theatre after the x-ray, the x-ray was clearly taken on 08-02-1998 before undertaking the orthopaedic procedure. This would establish the petitioner's claim that the x-ray of the affected arm and elbow was done on 08-02-1998, whereupon the petitioner undertook further orthopaedic procedure in the operation theatre. The dislocation reflected in the x-ray was thus prior to the treatment administered by the petitioner on 08-02-1998 and not post-treatment on 09-02-1998 as alleged by the complainant.
Held: If the x-ray showing dislocation in the elbow of the complainant's son was taken on 08-02-1998, immediately prior to the treatment administered by the petitioner then it would be difficult to explain how complainant's son continued to have dislocation in the same elbow even on 11-04-1998 when the x-ray of the affected elbow was taken. It is extremely difficult to accept the petitioner's contention that sometime after 09-02-1998, the complainant's son again fell and damaged the same elbow in a manner exactly identical with that of 08-02-1998 which then showed up in the x-ray taken on 11-04-1998.
Further, if no x-ray was taken of the complainant's son's elbow after completion of the procedure either on the 8 th or on the 9 th February 1998 , there is no evidence to show that the reduction was done appropriately; in fact, it is also a standard medical procedure to take an x-ray subsequent to such a procedure to see if the reduction had been done properly or something was still not right.
Moreover, in his defence the petitioner has also stated that the complainant was so influential and resourceful that he managed to forge/ falsify the medical records not only at the clinic of the petitioner himself but also the clinics of other well-known doctors in the field. As noted by the State Commission, the petitioner was unable to produce any corroborating evidence in support of his defence which can only be termed far-fetched. After detailed consideration of the pleadings, evidence and documents produced on record, both the Fora below have thus come to the same findings that the petitioner was negligent in treating the complainant's son for his elbow dislocation.
On the strength of the Apex Court ruling in Martin F. D'Souza v . Ishfaq Ahmad, (2009) CPJ 32 SC, the petitioner urged that the Fora below erred in coming to their findings without obtaining the opinion of an orthopaedic expert.
The directions of the Apex Court in the above-mentioned case to necessarily obtain an expert opinion in a case of medical negligence has been set aside in a subsequent judgment of the Apex Court in the case of V. Kishan Rao v. Nikhil Super Specialty Hospital, III (2010) CPJ 1 SC.
The revision petition is dismissed in limine.