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2008(4) CPR 139
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
K.C. Gupta, President, Maj. Gen. S.P. Kapoor (Retd.) and Devinderjit Dhatt, Members
Desh Raj —Appellant
versus
Dr. Mahabir Goel and Anothers —Respondents
RBT No. 816 of 2008 in Appeal No. 3347 of 2007
Decided on 24.9.2008
Counsel for the Parties:
For the Appellant: None.
For the Respondent:Sh. Ashwani Talwar, Advocate.
IMPORTANT POINT
Unless it can be proved through cogent expert opinion that the treatment adopted by the doctor was not as per accepted medical norms or through any literature it could be proved that the line of treatment or the manner of performance of the operation was totally opposed to the adopted medical procedures, the doctor cannot be held guilty.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Medical Negligence—Complainant appellant was operated on his left arm for fracture and DCP Plates were fixed in it—Pain continued—Opinion of another doctor was that DCP Plates were wrongly planted and arm got infection—Second operation was conducted in other hospital and new DCP plates were inserted—Compensation claim with allegation of negligence in carrying operation on part of OP—District Forum dismissed complaint—Appeal—Allegations of negligence to be tested on two fold anvils—Respondent doctor who performed operation was M.S. in Orthopaedics with 14 years experience in relevant field—No expert medical opinion to substantiate allegations—Burden of proof was on complainant—Merely that complainant had to undergo second operation at another hospital by itself would not prove deficient skills possessed by OP unless some expert medical opinion was examined—Impugned order called for no interference. (Para 7)
Result: Appeal dismissed.
Devinderjit Dhatt—Member—This appeal received by transfer from Haryana State Commission, under the orders of Hon’ble National Commission has been filed against order dated 6.7.2001 passed by District Consumer Disputes Redressal Forum, Yamuna Nagar at Jagadhri in complaint case No. 267 of 20.10.1997. The contextual facts in brief are as under.
2. The appellant/complainant has averred that he fell in the Hodi of his tube-well on 2.10.1996 due to which and his left arm above elbow, was fractured. He consulted the respondent/OP Dr. Mahabir Goel at his hospital situated at Sawanpuri, Jagadhri. It is stated that he was admitted on 2.10.1996 and remained in the hospital of respondent OP doctor till 13.10.1996, the operation on his left arm was conducted on 3.10.1996 and DCP. Plates were fixed in it. It has been alleged that the DCP Plates were planted improperly in a negligent and careless manner which resulted in acute pain in the arm of the complainant. It is averred that the pain being felt was brought to the notice of the OP doctor and the doctor assured that it will go slowly in due course. The complainant was discharged on 13.10.1996 after removing the stitches. It is further stated by the complainant that Dr. Mahabir Goel advised him some medicines and directed him to come after 15 days for check up. It is the say of the complainant that all the medicines were consumed by him as per advice of the doctor and he went for check ups and follow up treatment from the doctor every fortnight, however the pain in his not be controlled. It is also averred that used to ask the doctor about consistent pain during every visit, however he was told that sometime would be taken by the DCP Plates to set in his arm and thereafter he will get rid of the pain. It is alleged that the pain continued and he suffered sleepless/restless nights till 28.7.1997. It is further alleged that the OP had the knowledge that DCP Plates have been wrongly planted by him. An X-ray of the left arm was taken on 27.8.1997. After seeing the X-ray, the respondent OP doctor informed the complainant that there is infection in the wound inside the left arm and another operation is required to treat the same. It is alleged by the complainant that he got scared and asked the OP doctor to get his operation done from some other good doctor, however needful was not done. On 2.9.1997 the complainant consulted Chiranjiv Clinic and Sama Nursing Home at New Delhi where he was admitted on 7.9.1997. It is the say of the complainant that the doctor of this clinic told him that DCP Plates have been wrongly planted by Dr. Mahabir Goel and the arm has got infection due to the same. It is further stated by the complainant that the doctors of Delhi Hospital told him that the plates need to be removed to save his arm and new plates and bone grafting was required. After his admission on 7.9.1997 he was operated on 8.9.1997 by the team of doctors headed by Dr.P.S. Maini, was discharged on 10.9.1997, after necessary treatment was advised. It is stated by the complainant that DCP Plates put in by Dr. Mahabir Goel were removed and new DCP Plates were inserted and was discharged from abovementioned Delhi hospital on 22.9.1997. The grievance of the complainant is that Rs. 25,000 paid by him to Dr. Mahabir Goel towards the operation charges, amount of Rs. 25,000 was spent on medicines and X-ray prescribed by the doctor. He was earning more than Rs.1,50,000 per year from his occupation i.e. agricultural business and he suffered loss in the same. In the prayer clause, the complainant has claimed Rs. 2,35,000 on the abovestated grounds and has claimed future expenses w.e.f. 23.9.1997 with interest and also to award the costs of proceedings in the interest of justice.
3. In the reply filed on behalf of OP doctor, the preliminary objection taken is that complaint is not maintainable on account of the fact that there is no deficiency in service. The complainant has failed to disclose the cause o
