NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Kamalnayan Bajaj Hospital
and Anr. – Petitioners
versus
Jyoti Dhananjay Akude and Ors. – Respondents
Revision Petition No.890 of 2013, Revision Petition No.979 of 2013 with IA/18532/2017(Early Hearing)
Decided on 14.6.2021

IMPORTANT POINT
As long as doctor acts with due care, skill and diligence even if the patient does not survive or suffers permanent ailment, difficult to hold doctor guilty of negligence

Headnote:

Consumer Protection Act, 1986 – Section 21(1)(b) (Consumer Protection Act, 2019 Section 58(1)(b)) – Revision Petitions - Against the Order passed by State Commission - Respondent herein filed Revision Petition No. 979 of 2013 for enhancement of compensation and the Petitioner No. 1 filed Revision Petition No. 890 of 2013 to set aside the order of State Commission – Respondent no. 1 noticed shortening of Respondent no. 1’s left leg when she was 14 – Respondent no. 1 approached Petitioner no. 3, Dr. Choudhary - Without ascertaining causes of leg shortening, Petitioner No. 3 performed ilizaro procedure for lengthening of leg, no improvement - Resulted in knee stiffness – Petitioner no. 3 attempted quadricepsplasty but failed - Again attempted procedure under anaesthesia which resulted in patellar fracture - Possibility of fall or trauma to left knee sustained by Respondent no. 1 cannot be ruled out which may have led to patellar fracture - Allegation about removal of patella not sustainable – Consent for surgery taken and operating doctor explained about the procedure; separate consent by Petitioner no. 2, Dr. Santpure not necessary - As long as doctor acts with due care, skill and diligence even if the patient does not survive or suffers permanent ailment, difficult to hold doctor guilty of negligence - From clinical and operative notes, evident that patella was fragmented and fused - Petitioner No. 2 acted per reasonable standards of practice – No basis or justification to conclusively determine medical negligence against Petitioner No. 2.

Held: On careful perusal of medical history of the patient, it is pertienent to note that age of 14 years she noticed shortening of her left leg. She approached Dr. Milind Choudhary at Akola. He without ascertaining the causes of leg shortening performed ilizaro procedure for lengthening of leg. But, there was no improvement, it resulted knee stiffness, therefore he attempted quadricepsplasty but it was failure. Therefore to facilitate flexion of knee he again attempted procedure under anaesthesia which resulted fracture of patella. It is known that the Patellar fractures occur as a result of a direct blow to the knee and/or as a result of tension when the forces generated between the quadriceps tendon and patellar tendon overcome the strength of the bone. The possibility of fall or trauma to left knee sustained by the patient cannot be ruled out which may lead to fracture of patella. The X-ray clearly revealed fusion of bones and ankylosis and separately the patella was not visible. The allegation of the complainant about removal of patella is not sustainable.

The State Commission has placed a considerable degree of reliance on the fact that the Opposite Party No. 2 failed to obtain consent of Complainant/Petitioner to remove her patella or broken pieces of patella. The consent for surgery was taken and operating doctor has already explained about the procedure thus separate consent was indeed not necessary. The State Commission erroneously relied upon the prescription of Dr. Milind Joshi and MRI report of S. P. Institute of Neurosciences, Solapur that patella was removed by the Opposite Party No. 2.

We would like to rely upon the decision in the case Achutrao Harbhau Khodwa Vs. State of Maharashtra 1996 Vol 2 643, the Hon’ble Supreme Court has held as below:

“The skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

In the instant case the Opposite Party No. 2 acted as per the reasonable standards. The patient was known case of congenital hip dislocation. She underwent multiple corrective surgeries by different doctors and by different methods. At the age of 14 years Dr. Milind Choudhary failed to diagnose the cause of shortening of left leg, but treated the patient by Ilizarov method. The insertion of wires and pins lead to muscle damage and stiffness. The record speaks about procedures under anethesia performed by Dr. Chodhary and put a plaster to knee joint which further aggravated the stiffness. The stiffness was continued till her age of 25 years when she approached Opposite Party No. 1 hospital. The clinical and operative notes it is evident that the patella was fragmented and fused. The mode of treatment adopted by the Opposite Party No. 2 is as per the reasonable standard of practice. (Paras 14, 15, 16 & 17)

Result: Order of the State Commission unsustainable, set aside. Revision Petition of Petitioner No. 2 allowed; Revision Petition of Respondent No. 1 dismissed.