NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.B. Gupta, Presiding Member and Vinay Kumar, Member
Master Abhishek Ahluwalia & Ors. —Appellants
versus
Dr. Sanjay Saluja, MS Ortho, Orthopedics & Physiotherapy Clinic & Ors. —Respondents
First Appeal No. 110 of 2005
Against the order dated 28.2.2005 in Complaint Case No.39 of 2003 of the Consumer Disputes Redressal Commission, U.T. Chandigarh)
Decided on 1.7.2014

IMPORTANT POINT
It is not necessary to have opinion of expert in each and every case of medical negligence.

Headnote:(i) Consumer Protection Act, 1986—Sections 17, 19 and 21—Medical services—Medical negligence—Complaint dismissed by State Commission—Complications surfaced after operation for treatment for fracture of leg resulting in amputation of leg due to application of tight plaster—Plaster applied was so tight that it pressed nerves and muscles and also blocked smooth flow of blood resulting in complications in left leg beside causing considerable pain which ultimately resulted in amputation of leg of patient—Appellant was discharged by him on the basis of information received from his resident doctor—It stand established that respondent did not see condition of patient personally before discharging him—Whether to discharge or not to discharge patient, it is for treating Doctor to decide and not for patient or attending persons—Respondent had discharged patient even without looking to condition of patient—Appellant was having acute pain due to tightness of plaster only and respondent was well aware of same but still respondent ignored the same—Medical negligence on part of respondent is clearly established—Present case squarely falls within parameter of Medical Negligence as well as it is a case of res ipsa locquitur—Onus of proof would shift upon to Doctor (Respondent) to explain as to how and when gangrene had developed—However, respondent failed to give any sound and convincing reason—Impugned order passed by State Commission set aside—Total compensation of Rs.70,000,00/- granted.

       Held: In the light of decision of Jacob Mathew in the present case, it is to be seen;

        “(i) whether the plaster applied was so tight that it pressed the nerves and muscles and also blocked the smooth flow of the blood resulting in complications in the left leg beside causing considerable pain, which ultimately resulted in the amputation of the leg of the patient;

        (ii) whether such act on the part of the respondent no.1 would come within the ambit of “Medical Negligence.”

       Secondly, it is manifestly clear from respondent no.1’s defence, that appellant no.1 was discharged by him on the basis of information received from his resident doctor. Thus, it stand established that respondent no.1 did not see the condition of the patient personally, before discharging him.

       Thirdly, how a lay man, that is appellant, could know that patient was experiencing symptoms of “Vascular Compromise”, which is a medical term. Further, whether to discharge or not to discharge the patient, it is for the treating Doctor to decide and not for the patient or the attending persons. Thus, we have no hesitation in holding that respondent no.1 had discharged the patient on 11.7.2003, even without looking to the condition of the patient.

       Therefore, above facts clearly goes on to establish that respondent no.1 was fully aware of the continuing complaint of discomfiture by the patient on 12.7.2003 itself, when he visited patient’s house and that is why he had taken all the necessary equipments with him. This plea of respondent no.1 that it was never brought to his notice, that appellant no.1 was suffering from acute pain and the plaster was tight, therefore falls to the ground. Hence, it conclusively prove the case of appellant no.1, that he was having acute pain due to the tightness of the plaster only and respondent no.1 was well aware of the same but still respondent no.1 ignored the same.

       So, it is manifestly clear from the record that on 13th July, 2003 itself, respondent no.1 was suspecting the onset of Compartment Syndrome but he ignored it. Later on, “Fasciotomy” was performed on July 14, 2003 at about 5 A.M. for that purpose, respondent no.1 reached the Hospital at 3 A.M., which itself shows about the gravity of situation. Earlier, respondent no.1 had ignored the tightness of the plaster and severe pain being suffered by the patient in a careless manner. So, medical negligence on the part of respondent no.1 is clearly established. Thus, present case squarely falls within the parameter of Medical Negligence as well as it is a case of “res ipsa loquitor”, that is, the facts speaks for itself.

       It is respondent no.1’s own case, that after Fasciotomy, grafting was to be done. Later on, the patient developed Adult Respiratory Distress Syndrome, It is also respondent no.1’s case that Dr. Banerji had called him on his mobile phone and had expressed his concern about the condition of the patient and after discussion, it was decided to put the patient on ventilator. So, these facts goes on to show about the serious condition of the patient on 18th July, 2003.

       Further, there is material omission on the part of respondent no.1, in not placing on record the prescription/case sheet regarding treatment given by him to the patient on 12.7.2003.

       The fact that there was development of gangrene, is not disputed by respondent no.1. Therefore, the onus of proof would shift upon to the Doctor (Respondent No.1) to explain as to how and when gangrene had developed. However, respondent no.1 failed to give any sound and convincing reason. Instead, he shifted the entire blame for amputation of leg on the Doctors of Respondent No.4-Hospital.

        Due to amputation of the leg, naturally there would be loss of enjoyment in the married life. Further, admittedly appellant no.1 had suffered pain and suffering and he would have to live his entire life as a disabled person. Under these circumstances, we allow a sum of Rs.3,00,000 (Rupees Three lac only) for these sufferings.

        In view of our above discussion, we grant a total compensation of Rs.70,000,00/- (Rupees Seventy lac only) to appellant no.1. (Paras 104, 114, 115, 119, 123, 124, 125, 128, 150 and 153)

       (ii) Torts—Medical negligence—Res ipsa locquitur—It is not necessary to have opinion of expert in each and every case of medical negligence—Once an allegation is made that patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence then burden lies on hospital to justify that there was no negligence on part of treating doctor or hospital. (Paras 133 to 138)

       Result: Appeal Partly allowed.