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--------------- Print Magazine --------------
  May 2016
  April 2016
Case Study - By Anoop K. Kaushal

"Forums can return independent

factual finding of Negligence"

Dr. K. K. Mittal v. Virender Singh

Revision Petition No.2703 of 2007 pronounced on 21 st September, 2011 by the National Consumer Disputes Redressal Commission, New Delhi .

Facts: In his complaint before the District Forum, Respondent/ Complainant had contended that on 21-10-1996 he fell in the bathroom of his house at Kavi Nagar, Ghaziabad and took the entire burden of fall on the right side after which he felt acute pain in his right arm from the shoulder to the wrist and found that he was not in a position to move or straighten his arm. Suspecting fracture, he went to the Medical Center of the Petitioner/Doctor and explained regarding his fall and the pain in his right arm. Petitioner after getting the X-ray done of the upper arm above the elbow diagnosed a fracture in the upper arm above the elbow i.e. in the shaft of the humerus bone and after setting the bone and getting another X-ray done, put a plaster on the right arm from below the shoulder till the wrist, charged Rs.830 from the Respondent, prescribed medicines and asked him to come to the Petitioner's clinic for follow-up visits which he did on seven occasions. The plaster was finally removed on 20 th February, 1997 and the Petitioner informed him that the fracture had clinically united, however, since the arm continued to be stiff and there was pain in the elbow, prescribed painkillers and advised the Respondent to undergo physiotherapy at Yashoda Hospital , Ghaziabad . Despite the painkillers and physiotherapy the pain and stiffness persisted so the Respondent consulted Doctors at Shriram Jaipuria Medical Centre on 20-04-1997 where the Radiologist conducted another X-ray of the upper arm and the elbow and found that the bones in the upper arm had not united and there was a fracture in the elbow which in medical terms was described as "fracture of the Olecranon". Since, the Respondent had been under the treatment of the Petitioner for over 5 months, he immediately contacted and confronted him with the findings of the Doctors at Shriram Jaipuria Medical Centre. The Petitioner again took an X-ray, offered to undertake corrective surgery for Rs.40,000 but the Respondent refused this offer having lost faith in the Petitioner and got himself admitted at Mool Chand Khairati Ram Hospital , New Delhi where a surgery was conducted on 5-5-1997 and both fractures were properly set. The Respondent was unable to straighten his right arm, was deprived of its full movement throughout his life, hence the complaint.

Defence : According to the Petitioner, the Respondent complained of pain in the arm above the elbow and chest but did not mention that he had pain in the elbow or below the elbow when he visited his clinic on 21-10-1996, an X-ray of the arm above the elbow was immediately taken by a qualified Radiographer where a fracture in the upper arm above the elbow i.e ., in the shaft of the humerus bone was detected for which he was provided adequate standard ortheopaedic treatment. It was only after an X-ray taken on 20-02-1997 which confirmed that the fractured bone had set properly and shown perfect alignment that the Respondent was advised to undergo physiotherapy in another hospital. Regarding the second fracture of the Olecranon, the Petitioner contended that in a domestic fall of the nature described by the Respondent, he could not have sustained this fracture because fracture of the elbow normally takes place in situations when the limb is involved in a high impact accident which was not so in this case. Therefore, in all probability, the second fracture was subsequently sustained after the healing of the first fracture.

Observations: It is not disputed that the Respondent after suffering a fall in his house went to the Petitioner/Doctor's clinic wherein an X-ray was conducted and he was treated for a fracture of the humerus bone and that he continued to visit the Petitioner's clinic for a period from 21-10-1996 to 20-02-1997. However, the statement of the Petitioner/Doctor that the Respondent did not inform him about the pain in the elbow is factually not correct because it is clear from his complaint before the District Forum as also from subsequent statements that the Respondent had clearly mentioned that following the fall, he was suffering great pain in his entire arm from the shoulder to the wrist which obviously includes the elbow. It was for the Petitioner as an Ortheopaedist to have not depended only on a general statement of the patient regarding the nature of his fall; he should have detected the second fracture through specific queries to the patient and through proper diagnosis including X-ray of the entire arm. The Respondent's contention that the case was not properly diagnosed because the X-ray was not conducted by a professional person, also has some force because the Petitioner could not reply satisfactorily to our specific query to him regarding the name and qualification of the person who had done the X-ray. The Petitioner's contention that the Respondent complained of pain and stiffness in his elbow only after 5 weeks is well explained by the fact that he could not have done so much earlier because soon after his fall, his entire arm from the elbow to the wrist was put in plaster by the Petitioner. The fact that a second fracture of the Olecranon had taken place is not in dispute and there is evidence of an expert, Dr.Vipin Tyagi who is a qualified Ortheopedic Surgeon that in all probability, this fracture was about 6 months old.

The second statement made by Dr.Tyagi diluting his earlier statement is clearly an afterthought and cannot be relied upon. The contention of the Petitioner that the second fracture had occurred after the first fracture had healed is also based on surmises and conjectures and not on any credible evidence.

On the other hand, we are of the view that the Respondent has been able to produce adequate medical evidence to show that he had also sustained a second fracture of the Olecranon after his fall, which was set right after a surgical intervention on 20-05-1997 in Mool Chand Hospital, New Delhi and which was overlooked by the Petitioner who did not even conduct an X-ray of the entire arm. In other words, the evidence produced by the Respondent in respect of his subsequent treatment, surgery and medical opinion of the doctors are adequate proof in support of his case of medical negligence against the Petitioner/Doctor. The principles of what constitutes medical negligence is now well established by several judgments of this Commission as well as of the Hon'ble Supreme Court and these inter alia include; whether a doctor adopts the practice of clinical observation and diagnosis, including diagnostic tests and treatment in a case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In the instant case, we are of the view that the Petitioner by not exercising even the basic care and judgment required in the case failed to detect the second fracture which amounts to medical negligence. The learned Fora below being the courts of fact and taking into account the principles of what constitutes medical negligence as well the evidence filed before it rightly concluded that the Petitioner was guilty of medical negligence.

Held: We agree with the same and find no merit in the present Revision Petition which is dismissed. The order of the State Commission is upheld. We direct the Petitioner/Doctor to pay the Respondent Rs.1,80,000 with interest @ 5% within two months from the date of the order and Rs.3,000 as litigation costs failing which interest @ 9% will be applicable on the entire amount from the date of default.

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