Hiwraj v. Sushrut Medical Care & Research Societies, Consumer Case No. 151 Of 2014 Decided On 07 Feb 2020 by National Consumer Disputes Redressal Commission New Delhi
Facts: In the month of June 1997, Mr. Hiwraj Kamble noticed a swelling and pain on his right knee. He initially felt it as a minor one, but as the problem continued, on 09.10.1997, he consulted an Orthopaedic surgeon Dr. Jagdish Agroya at his Agroya Hospital, Latur. X-rays of the right knee joint (antero-posterior and lateral view) were taken and it revealed ‘a lytic lesion’ in the right knee joint. Dr. Arogya advised biopsy from the lesion to ascertain the diagnosis. Thereafter, on 15.10.1997 the patient approached Dr. G. A. Hajgude an Orthopaedic surgeon at Hajgude Accident Hospital, at Latur. Patient showed the 1st X-Ray report to Dr. Hajgude. Another X-ray of the lateral view of the right knee joint was taken by Dr. Hajgude. Based on both the X-rays, Dr. Hajgude confirmed it as a lytic lesion in right knee joint, and advised the patient complete bed rest for 5 days. On 21.11.1997 in an office meeting at Pune, the complainant while attending phone call in standing position, his right leg got twisted and suffered severe pain in right knee. Therefore he was taken immediately to Hardikar Hospital in Pune and was admitted there. Dr. Hardikar (O.P. No. 4) examined the patient who told about his previous history of right knee joint pain. He showed two x-ray reports which were done by Dr. Jagdish Agroya and Dr. Hajgude at Latur. However, the complainant did not carry the X-ray films with him at that time, but those X-ray films were brought on the next day and were shown to Dr. Hardikar – O.P. No. 3. The complainant alleged that it was a case of pathological fracture due to giant cell tumour (GCT), but O.P. No. 3 failed to diagnose it. The O.P. No. 3 wrongly diagnosed it as ‘a closed fracture lateral condyle of femur-displaced fracture’. On 24.11.1997, under spinal anaesthesia O.P. No. 3 performed ORIF surgery for fracture condyle right femur and placed four 2.5 mm vertical screws. The O.P. No. 3 checked the reduction and fixation. The complainant alleged that O.P. No. 3 instead of removing the GCT, fixed the screws after reduction of fracture. The patient was discharged on 03.12.1997. Due to the non-removal of GCT, the swelling and pain in right knee was increasing. It was brought to the notice of Dr. Hardikar as and when patient attended the Hardikar Hospital. However, O.P. No. 3 did not pay any attention. Therefore, as a consequence of wrong diagnosis, the complainant suspected something wrong was going on. The pain and swelling in the right knee was gradually increasing. Therefore, on 31.3.1998 he was constrained to undergo medical check-up from Dr. Agroya who took X-ray of right knee and confirmed it as a ‘pathological fracture’ because of pre-existing Giant cell tumour, which was diagnosed by him on 9.10.1997. Though the patient was unable to walk and do any physical work on his own, the medical officer O.P. No. 4 issued one post-dated fitness certificate (No. 7060) on 08.04.1998 stating that the patient was fit to resume his duty on 29.4.1998, that he incurred substantial expenditure for further treatment for removal of giant cell tumour of right knee, he shifted from Latur to Nagpur. After coming to Nagpur, he consulted few doctors. On 13.5.1998 Dr. Raju Chaudhari at Kamptee (Nagpur) examined the patient and took X-ray of right knee region. He made a diagnosis of old pathological fracture due to GCT and advised for further treatment by curating and bone grafting, on 25.5.1998, the patient approached OPD at the Government Medical College and Hospital, Nagpur (for short ‘GMC’), doctors at GMC after going through all previous X-rays opined that a lytic lesion in lateral condyle extending into metaphysis up to sub-condylar region, and confirmed it as an old pathological fracture. The patient got admitted in GMC on 01.06.1998 and was operated on 6.6.1998 for removal of GCT. The patient was discharged on 17.6.1998. He obtained the medical record along with the Histo-pathology report from GMC on 21.07.1999.
Defence: O.P. No. 3 denied that, the complainant had shown him “previous two X-rays”, as it was totally false, that X-rays taken at O.P. No. 2 hospital did not show evidence of “Pathological Fracture”, that history recorded in Hardikar Hospital clearly establishes the standard of care and treatment given to the patient, that even during the surgery, no signs of pathological fracture were seen, therefore ORIF was done with four 2.5 mm screws. During the follow up after the operation, there was no pain or swelling of right knee, patient wanted to avoid to go on tour immediately, therefore at the request of patient the medical officer of O.P. No. 2 hospital issued the certificate dated 08.04.1998, that he will resume to the work after a period of three weeks, i.e. to return to work on April 29, 1998, was allowed to resume only for sedentary work. According to Dr. Hardikar (O.P. No. 3) it was the case of fracture, and the features were not suggestive of any pathological fracture. The X-rays’ did not reveal any existence of “Giant Cell tumour”.
Case Law Reliance:
The Hon’ble Supreme Court in Jacob Mathew v. State of Punjab and Anr. 2005 (3) CPR 70 has stated:
“A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. …A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”
“A mere deviation from normal professional practice is not necessarily evidence of negligence. A mere accident is not evidence of negligence An error of judgment on the part of a professional is not negligence per se No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake… Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor”
Held: On 21.11.1997 at the time of admission to O.P. No. 2 hospital, the patient presented with fresh fracture, severe pain and swelling in right knee due to history of fall. The X-rays taken at O.P. No. 2 hospital revealed ‘intra articular fracture of the lateral condyle of the right femur displaced postero- superiorly’. Also showed areas of sclerosis, which was suggestive of earlier fracture. However the X-rays did not show any evidence of GCT. In our view the first goal of the treating doctor – i.e. orthopedician (O.P. No. 3) was pain relief and plan for treatment of stabilisation of fractured bones. Therefore operation of open reduction and internal fixation was necessary. It was the standard treatment of such fracture. Moreover, during surgery no abnormal tissue was noticed to suspect any tumour. Therefore in the instant case ORIF was an accepted method of standard treatment.18. The standards expected from any medical practitioner in an emergency are always lower than the standards expected from him in an ideal setting.