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2009(4) Supreme 573
SUPREME COURT OF INDIA
Dalveer Bhandari and Harjeet Singh Bedi, JJ.
Dr. C.P. Sreekumar, M.S. (Ortho) — Appellant
versus
S. Ramanujam — Respondent
Civil Appeal No. 6168 of 2008
With C.A.No.6167 of 2008
Decided on : 01-05-2009
(2005) 6 SCC 1; (1957) 2 All ER 118 (QBD) – Relied upon.
(b) Consumer Protection Act, 1986 – Sections 21(1) and 23 – Medical Negligence – Too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition. (Para 12)
(2005) 7 SCC 1 – Relied upon.
(2008) 2 SCC 1 – Referred.
(c) Consumer Protection Act, 1986 – Sections 21(1) and 23 – Medical Negligence – Onus to prove medical negligence lies largely on the claimant and this onus can be discharged by leading cogent evidence – It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. (Para 16)
(d) Consumer Protection Act, 1986 – Sections 21(1) and 23 – Medical Negligence – Merely because there is some divergence of opinion as to the proper procedure to be adopted, it cannot be said with certainty that the attending doctor was grossly remiss in going in for a particular line of treatment – The appellant’s decision was not so palpably erroneous or unacceptable as to dub it as a case of professional negligence. (Paras 20 and 21)
Facts of the case :
1. The respondent, who was then employed in the Indian Overseas Bank, Chennai was going on his bicycle on 31st December 1991 when he was hit by a motorcycle leading to an injury to his leg. He was admitted to the Surya Hospital, of which the appellant, Dr. C.P. Sreekumar was the Managing Director, at about 9.45 a.m.
2. An X-ray of the leg revealed a hairline fracture of the neck of the right femur. The appellant, as the attending doctor, chose a conservative line of treatment and put the respondent’s leg in a plaster of paris bandage known as ‘derotation boots’ in order to immobilize the leg.
3. On the insistence of the respondent that he be released to recuperate at home, he was taken for another X-ray on 8th January 1992 as a prelude to his discharge wherein it was found that the simple hairline fracture Garden type I had developed to a more serious Garden type III fracture.
4. The appellant thereupon decided to perform a hemiarthroplasty instead of going in for the internal fixation procedure. The respondent consented to the choice of the surgery after the various options had been explained to him.
5. It was observed that a superficial infection had set in. The sutures were actually removed on 21st January 1992. The respondent was thereafter made to undergo physiotherapy and was finally discharged on 5th February 1992.
6. On 6th March 1992, the respondent was instructed to go in for physiotherapy on a daily basis and to return for a subsequent review two weeks later but he neglected the advice.
7. The appellant has however pleaded that the respondent, in the meanwhile, continued to make a nuisance of himself with frequent visits to and unbecoming behaviour in the hospital on which the appellant gave a sum of Rs.50,000/- as an ex-gratia payment in order to pacify him.
8. Notwithstanding the aforesaid payment the respondent sent an Advocate’s notice on 19th November 1992 alleging negligence and deficiency in service as the simple fracture had got displaced to a more complicated one, on account of mishandling by the hospital staff as also in the choice and the manner of the surgery and calling for compensation of Rs.3 Lac of which Rs.50,000/- had (statedly) already been paid as an advance.
9. The respondent in May, 1993 filed a complaint before the State Commission. The appellant in his reply denied the allegations and prayed for the dismissal of the complaint.
10. While the complaint was yet pending, the respondent underwent a total hip replacement on 24th April 1995 at the Tamil Nadu hospital performed by Dr. Mohandas, on which he moved an application before the State Commission seeking to amend the complaint whereby the claim was increased from Rs.3 to Rs.12 Lac.
11. The State Commission dismissed the complaint holding that there had been no negligence or deficiency in service on the part of the appellant and that the respondent had not been able to prove mishandling by the hospital staff.
12. Aggrieved by the order of the State Commission, the respondent filed an appeal before the National Commission on 12th April 1999. Vide its order of 15th November 2006, the Commission, however, allowed the appeal but limited the respondent’s claim to Rs.2.5 Lac, (being the balance amount after deducting Rs.50,000/- allegedly paid as an advance) but, in addition granted a further sum of Rs.3 Lac to cover the contingency that he might have to undergo yet another surgery at some later stage.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Civil Appeal No. 6168 of 2008 allowed and the respondent’s complaint dismissed.
JUDGMENT
Harjit Singh Bedi, J.—
1. This judgment will dispose of C.A. No.6168 of 2008, and C.A.No.6167/2008 as they arise out of the same order. The facts are being taken from C.A. No.6168 of 2008.
2. These appeals are directed against the order of the National Consumer Disputes Redressal Commission (hereinafter called the “Commission”) whereby a sum of Rs.5.50 Lac alongwith interest on a part of the aforesaid amount and costs of Rs.25000/- has been awarded to the complainant-respondent. The facts leading to this appeal are as under:
3. The respondent, who was then employed in the Indian Overseas Bank, Chennai was going on his bicycle at about 8:20 a.m. on 31st December 1991 when he was hit by a motorcycle leading to an injury to his leg. He was admitted to the Surya Hospital, of which the appellant, Dr. C.P. Sreekumar was the Managing Director, at about 9.45 a.m. An X-ray of the leg revealed a hairline fracture of the neck of the right femur. The appellant, as the attending doctor, chose a conservative line of treatment and put the respondent’s leg in a plaster of paris bandage known as ‘derotation boots’ in order to immobilize the leg. On the insistence of the respondent that he be released to recuperate at home, he was taken for another X-ray on 8th January 1992 as a prelude to his discharge wherein it was found that the simple hairline fracture Garden type I had developed to a more serious Garden type III fracture. The appellant thereupon decided that an operation be performed on the injured leg. Pre-operative evaluations were made on 9th January 1992 and the appellant, on considering the various options available, decided to perform a hemiarthroplasty instead of going in for the internal fixation procedure. The respondent consented to the choice of the surgery after the various options had been explained to him. The surgery was performed on the next day. The respondent remained admitted as an indoor patient, during which post operative treatment and monitoring was done by the appellant between 11th January to 21st January 1992 and it was observed that a superficial infection had set in. The sutures were actually removed on 21st January 1992. The respondent was thereafter made to undergo physiotherapy and was finally discharged on 5th February 1992. On 6th March 1992, the respondent appeared in the hospital and his condition was reviewed and he was instructed to go in for physiotherapy on a daily basis and to return for a subsequent review two weeks later but he neglected the advice. It is the case of the respondent that on account of lingering pain, he had consulted various doctors, including Dr. Mohandas of Tamil Nadu hospital on 27th May 1992 who gave his opinion on the matter. The appellant has however pleaded that the respondent, in the meanwhile, continued to make a nuisance of himself with frequent visits to and unbecoming behaviour in the hospital on which the appellant gave a sum of Rs.50,000/- as an ex-gratia payment in order to pacify him. It appears however, that notwithstanding the aforesaid payment the respondent sent an Advocate’s notice on 19th November 1992 alleging negligence and deficiency in service as the simple fracture had got displaced to a more complicated one, on account of mishandling by the hospital staff as also in the choice and the manner of the surgery and calling for compensation of Rs.3 Lac of which Rs.50,000/- had (statedly) already been paid as an advance. The appellant in his reply dated 15th December 1992, denied any negligence in the surgery and further pointed out that the displacement of the fracture had come about on account of natural causes i.e. a muscular spasm and that respondent after being informed about the various lines of treatment available had consented to the hemiarthroplasty. Dissatisfied with the reply given by the appellant, the respondent in May, 1993 filed a complaint before the State Commission alleging that his consent had not been taken for the hemiarthroplasty
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