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2003 DIGILAW 56 (UTT)

Shree Mohan, Paras Nursing Home v. Sukhpal Singh

2003-05-09

K.D.SHAHI, LUXMI SINGH

body2003
JUDGMENT 1. This is an appeal against the judgment and order dated 11.9.2002 passed by the District Forum, Haridwar allowing in total compensation of Rs. 1,20,000/- to the claimant Sh. Sukhpal Singh. 2. The brief facts of the case are that Shri Sukhpal Singh suffered a fracture of leg femor (Kullha) on 17.10.99. On the same date, he approached opposite party (Appellant) Dr. Shree Mohan of Paras Nursing Home, Rurki for treatment. The complaint remained hospitalised there from 17.10.99 to 29.10.99 for 13 days. On 29.10.99, the appellant took an x-ray and told that he is being relieved today from the Nursing Home. The complainant shall be kept in traction at the residence for 12 weeks. After 12 weeks, the traction shall be removed. On 29.10.99 the appellant accompanied the complainant to his house and the traction was given with a direction to keep the weight in the same position. The complainant followed the direction. On 7.1.2000, after complete rest of 12 weeks, the complainant came to the nursing home of the appellant. He was x-rayed and it was informed that the bones have united properly. The appellant advised exercise. The complainant remained in the treatment of the appellant till 10.4.2000. He consumed all the medicines as directed by the appellant but he felt that his leg has been shortened and there is constant pain. The appellant told that it is nothing. The leg shall come to its normal position and pains shall also stop. But when there was constant pain, on 21.4.2000, the complainant approached Dr. Arvind Saharan of Rurki who measured the leg and told that it had shortened by one inch and the leg is united with wrong angle. There is a gap in the bone. When Dr. Arvind Saharan told like this, the complainant again met the appellant on 29.4.2000. The appellant told that the leg of the complainant has shortened by half inch. He will have to use a shoe of high heel. The appellant gave some further medicines but when there was no result, he again consulted Dr. Arvind Saharan on 16.5.2000 and 17.6.2000. Dr. Arvind Saharan told to consult some other doctor if the complainant so wishes. On 8.7.2000, the complainant consulted Dr. Himanshu Kumar and Dr. U. C. Jain of Saharanpur. They told that there has not been proper treatment. On 27.10.2000, the complainant went to Dr. Arvind Saharan on 16.5.2000 and 17.6.2000. Dr. Arvind Saharan told to consult some other doctor if the complainant so wishes. On 8.7.2000, the complainant consulted Dr. Himanshu Kumar and Dr. U. C. Jain of Saharanpur. They told that there has not been proper treatment. On 27.10.2000, the complainant went to Dr. S. P. Gupta of Meerut and he informed that the bone has mal United. It was a case of operation and he informed the expenses of operation to be Rs. 50,000/-. 3. It is alleged by the complainant that he is a lawyer by profession. He has suffered loss in his profession. He has spent amount as mentioned in para 11 of the Complaint. He further alleged that due to the negligence of the appellant, his leg has been shortened. He claimed compensation for that. He prayed for total compensation of Rs. 3.00,000/-. 4. The appellant filed the written statement and admitted the fracture. It is alleged in para 2 that the complainant advised for operation but for that purpose, the complainant was not ready to get operation at Rurki or any other place out of Rurki as there were chances of heavy expenses in operation. The complainant told that he is not able to get operation. Therefore, he prayed that the treatment should be done without operation. Even in the prescription, he has advised for operation. Regarding the advice by Dr. S. P. Gupta for Meerut, the appellant stated that he has initially advised for operation but his advice was not accepted (para 9 of the written statement). It is alleged that the appellant did not take any consultation fee and the amount as paid has incorrectly been shown excessive. In the additional pleas, it was pleaded that the complainant is a lawyer by profession and inspite of written advice, he did not get operation. It appears that there was another accident by which the union of the bone, had reopen. The complainant is a Vakil and is short of money and therefore out of greed, he has filed this complaint. He has alleged that he is a known Orthopedic Surgeon and has served in All India Medical Institute, Delhi; Safdarjung Hospital, Delhi; P.G.I. Chandigarh and has examined treated and operated several patients with complicated operations. He has also claimed compensation for his harassment. 5. He has alleged that he is a known Orthopedic Surgeon and has served in All India Medical Institute, Delhi; Safdarjung Hospital, Delhi; P.G.I. Chandigarh and has examined treated and operated several patients with complicated operations. He has also claimed compensation for his harassment. 5. To prove their case, the complainant filed his counter affidavit dated 29.5.2001, affidavit of Pawan Singh, his brother, his rejoinder affidavit again dated 4.10.2001. The appellant filed his affidavit dated 8.5.2001 and his counter affidavit dated 29.5.2001. Documents were also produced before the learned Forum. After hearing the parties, the learned Forum allowed the claim petition for a sum of Rs. 1,20,000/- against which order the present appeal has been filed. 6. We have heard the learned Counsel for the parties and gone through the records. The only question involved in this case is whether the appellant has been negligent 'in performing his duties. The total cure mayor may not be there. But if the doctor is not negligent he is not liable But if the doctor is negligent and there has not been total cure, the doctor is liable. In this context, the pleadings of the parties and evidence is to be examined. 7. Initially we shall proceed with the arguments of the learned counsel for the appellant that there could have been treatment by two ways. First by traction and second by operation. This was the argument advanced by learned counsel for the appellant Sh. M. K. Kohli. He argued that there were two options both equally efficacious, if doctor preferred one at the insistent of the patient, he cannot be said to be negligent. We take this argument as totally correct and we shall proceed to examine the case of the parties in this light. 8. In this context, the written statement of the appellant is most relevant. Nowhere he has written in his written statement that traction was also an alternative treatment and because both were equally efficacious, he and the patient both preferred traction. Instead, he has everywhere written that the complainant was advised to get the operation done. In para 2 it is written •that he was advised to get operation done but for this purpose, he was not ready to get operation in Rurki or out of Rurki. It was again written that operation was very expensive therefore, the complainant was not prepared. In para 2 it is written •that he was advised to get operation done but for this purpose, he was not ready to get operation in Rurki or out of Rurki. It was again written that operation was very expensive therefore, the complainant was not prepared. It is specifically written that the complainant requested the appellant that his treatment be done without any operation. It means that operation was necessary but it is the complainant who insisted that operation be not done. Therefore, traction system was adopted. Again, in para 8, it is written that Dr. S. P Gupta had advised for operation. He, too, has advised for operation initially but due to heavy expenses, the advice of the appellant was not learned by the complainant. It is again, written in this para that due to financial crisis and greedy habits, the complainant did not done the treatment as advised by the appellant. Therefore, the appellant is responsible for that. Again, in additional pleas also, it is alleged that inspite of written advice the complainant did not get the operation done. Thus, the entire written statement speaks that the complainant could have been cured only by operation. There is no plea of traction and even if there was an alternative way of treatment by traction then also, according to the written statement, what was necessary was operation and nothing else. 9. Now, the question arises whether the appellant has advised the complainant for operation. It is not the case of the appellant that he never advised for operation. But the case is that from the very beginning, he advised for operation. Now let us take this case whether he has advised for operation from the very beginning. We have to go through the medical papers. The complainant is said to be unconscious at the time of admission. It is his brother Pawan Kumar who is also (perhaps) an advocate who got him admitted. He has to give an undertaking at the time of admission. Nothing was got written in this undertaking at the time of admission that inspite of advice of the doctor, the complainant is not ready to get operated. Thereafter, there are papers which are said to be Bed Head Ticket or a case history. No case history or Bed Head Ticket is ever prepared on the undprtaking. Nothing was got written in this undertaking at the time of admission that inspite of advice of the doctor, the complainant is not ready to get operated. Thereafter, there are papers which are said to be Bed Head Ticket or a case history. No case history or Bed Head Ticket is ever prepared on the undprtaking. However, in this case, these papers appear to have been prepared on the undertaking from the side of the complainant. The proceedings of the case history are not court proceedings. Once it has started with a definite day, again the same date is not given. It appears that from the date 17.10.99 treatment was started but again when the dispute arose. At the top of this date again 17.10.99 date is given and "Advised Surgery but refused", have been written. The ink of this writing is thicker and appears to have been written subsequently. Then the case history of each date, appears to have been written on this paper and on every date, there is over-writing in the date, month aild year. If it is not written subsequently at one time, there is no question of overwriting on each of the dates. This specifically shows that this entire sheet prepared at the back of the undertaking has been fabricated subsequently only to show that surgery was advised but it was refused. If these papers are held to be fabricated, the total case of the appellant becomes false that he was advised for surgery from the very beginning. Then there is "Discharge Slip" of the appellant dated 29.10.99. It is alleged that on 29.10.99 as well the appellant wrote on the discharge slip, "Pregnesis for Surgery explained to the patient". This writing also shows that it was subsequently written and this wording PT appears to have been written on the line of 7.1.2000 from the bare perusal of the original papers it is clear that this writing has been subsequently written after 7.1.2000. 'The argument from the learned counsel for the appellant was that this paper has been filed by the complainant. It always remained in the possession of the complainant and if it always remained in the possession of the complainant, on what date the appellant could have written it subsequently. The argument appears to be very simple but such is not the case. It always remained in the possession of the complainant and if it always remained in the possession of the complainant, on what date the appellant could have written it subsequently. The argument appears to be very simple but such is not the case. The complainant had visited the nursing home on several dates after this i.e. on 5/11, 15/11,20/11,4/12 and all these writings are on the very discharge slip. It means that this paper was handed over to the doctor on each date in original and the doctor has to write as he has written on 5/11, 15/11,20/11, 4/12 and if this paper was given for writing something by the doctor on any of each dates, he could have very easily written the above wording to show that he has given the advice very much even at the time of this discharge. But the patient did not hear. This advice on the date of admission, on the date of discharge and this writing over the own papers of the appellant are very much indicative of the fact that these have been written subsequently only to" justify that the report of the other doctors that he too has advised for operation but the patient did not hear. We have seen the original papers with the parties to which they are directed to till further order. 10. It is said that the learned Forum has given a finding that the patient was kept under plaster. He was not kept under plaster. It is admitted case. The finding may be incorrect to that extent. But the finding that the complainant was kept on conventional traction cannot be denied by any of the parties. This is not the case of the appellant that the complainant could have been cured only by traction but his case is that he advised for operation, but under compulsion from the complainant he put him on' traction. 11. Now, the case is that the complainant refused to be operated upon, and the simple case is that because he is a poor man. He is a lawyer by profession. We have no evidence about his financial status. But it appears that his brother Pawan Kumar also, is an advocate. This is sufficient to show that the family of the complainant is fully literate and at least, of a loss who can get proper education. He is a lawyer by profession. We have no evidence about his financial status. But it appears that his brother Pawan Kumar also, is an advocate. This is sufficient to show that the family of the complainant is fully literate and at least, of a loss who can get proper education. Nobody gets operation up to LLB Class who is so poor that he is unable to spent a handsome sum for his operation even in the case of crisis. In para 5 of his written statement dated 29.5.2001, the complainant has specifically written that neither he nor his brother was ever advised for xray, other wise he could not have desisted from getting the operation done. In para 6 of his written statement Shri Pawan Kumar Advocate has specifically mentioned that the financial status of his as well as his brother was sound on the date of accident and he was financially able to get the operation done had he been informed so. Now, there are other factors also which show that the complainant is not so poor as alleged. Doctor has himself alleged that he is a doctor of high repute, he has got his nursing home. Had the complainant been so poor that he was not able to got his operation done, he could not have been rushed to a private nursing home where everything is done on money, but he could have rushed to some charitable institutions, district hospitals and a judicial notice of the fact can be taken that at Hardwar, there are a number of hospitals and charitable institutions even more prestigious than any nursing home and example of one such hospital is Ram Krishan Mission Hospital. Had the complainant been so poor, he could have gone anywhere like this. It is also not the case of the appellant that he has got any previous association or relationship with the complainant that he got him treated without any charge because the complainant was poor. To the contrary, the only pleading is that looking the fact that the complainant reminded the appellant of professional courtesy and it is only for this reason that he did not charge the consultation fee. To the contrary, the only pleading is that looking the fact that the complainant reminded the appellant of professional courtesy and it is only for this reason that he did not charge the consultation fee. But there is specific plea of the complainant to have given handsome amount to the appellant as alleged in para 11 of the complaint and affidavit of Pawan Kumar but there is only evasive denial that so much money was not paid but only lesser amount was paid. It is not said that the appellant did everything free of cost. If the complainant can get himself a private room, can get himself admitted in a private nursing home, if he can bear the expenses of treatment there, he could have very well got himself operated upon as well. One thing was also not understandable and that is if the appellant was so sympathetic with the complainant that he could not charge the exact amount, which he should have charged then he could have operated him also free of cost. Had the appellant been sympathetic, as he stated himself to be on going to the house of the complainant without charging anything, putting him on traction free of cost, then he could have also operated the complainant free of cost. The operation could not take place merely because the complainant was not advised for that. The financial status of the complainant was sound, is also apparent from the fact that he did not consult only the appellant, but also the reputed doctors at Rurki, Saharanpur and Meerut. A destitute will not do it. 12. It was argued that the report of Dr. Arvind Saharan, Dr. S. P Gupta etc. are not proved. Rulings have also been given to this effect. But the proof is required when the reports are denied. There is nothing to show any denial of these reports. Even otherwise, it is now admitted case of the parties that the patient could not have been cured without operation and the appellant also knew that operation was necessary, still the operation was not done, which was expected of a prudent doctor like the appellant to have done. Therefore, there is definite deficiency in service of the doctor. Negligence is there. When an act is required to have been done by a man of ordinary care and is not done, negligence is there. Therefore, there is definite deficiency in service of the doctor. Negligence is there. When an act is required to have been done by a man of ordinary care and is not done, negligence is there. When an act is riot required to be done by a man of ordinary care and it is done negligence is also there. The appellant acted in utter disregard of his ordinary duties. He instead of advising for operation, insisted to keep the patient in his nursing home to charge money and to put him on traction at home. If according to the doctor• operation was necessary then instead of putting the complainant on traction, he could have very well refused to admit him and said that "you are not ready for operation, operation is necessary. Unless you are operated upon, you cannot be cured. You are not prepared for operation, get away." But, the doctor did not do this. Therefore, he is negligent. 13. One very pertinent question was raised by the learned counsel for the appellant, Sh. M. K. Kohli that if operation was so much necessary, the operation has not been done even today, it is true. But this is now admitted case of the parties that operation was necessary on the date of accident. If it was not done on the date of accident, it may be mal-united, it may be not united after six months, that is immaterial and the• simple reply that the operation has not been done even today is that leg of the complainant has already shortened, he is already performing his duties and he is using high heels. He has become accustomed to this. Now after lapse of 2 or 3 years, he may think that his operation mayor may not succeed. Therefore, subsequently, after 6 months or one year or three years, he might not have got the operation done" For this the negligence of the appellant is not ratified. 14. Now we have to refer the rulings given by the learned counsel for the appellant. He has referred the ruling reported in 1996 (1) CPR 616 Ramanbhai Somabhai Kachhiya v. Dr. Piyush Patel. In this ruling it is held that there is no evidence of negligence'. Negligence is not a man who could be caught and produced in the court. Negligence is to be proved under the circumstances of the case. He has referred the ruling reported in 1996 (1) CPR 616 Ramanbhai Somabhai Kachhiya v. Dr. Piyush Patel. In this ruling it is held that there is no evidence of negligence'. Negligence is not a man who could be caught and produced in the court. Negligence is to be proved under the circumstances of the case. The affidavits the papers, the own admissions of the appellant show that he has been negligent. No further proof is necessary. It is said that another doctors consulted have not examined that it is not necessary. Because there report is' not definitely challenged and even if challenged, then also the appellant also admits that the leg of the complainant has become shorter by half inch. He also admits that, the complainant could have been cured only by operation which he did not do. The report of other doctors is nothing more than this. Therefore, their examination or no examinatior. is not at all relevant. Similar is the position with the case decided by this Commission in 2003 (2) UC 964 Appeal No. 235/2002 Shri Budh Ram Singh. In the ruling reported in 2003(1) CPR 222 (NC) Dr. S. Gurunathan (Dead) v. Vijaya Health Centre, it is held that there is no expert to say that re-constructive surgery alone, was not the method to treat the foot. But this ruling is not applicable to the facts of the present case because in this case, admittedly expert evidence no expert evidence. Operation was the only proper way to treat the complainant to which the complainant refused. 50 is the case with the rulings reported in 2003 (1)' CPR 238 (NC) Mrs. Kiran Bala Rout v. Christian Medical College & Hospital; 2003 (1) CPJ 153 (NC) Dr. Harkanwaljit Singh Saini v. Gurbax Singh and 2001 (3) CPR 172 (NC) Ms. Rohini Devi v. Dr. H. S. Chudavat. Nothing is relevant to the facts of the present case for which ruling reported in 2003(1) CPJ 57 (NC) Dr. Devender Madan v. Shakuntala Devi, has been referred. We have proceeded in this case only on the admitted facts as alleged by the parties. The rulings reported in 2000 (2) CPJ 220 Ashok Kumar Singh v. Dr. Mohan Thakur and 1995 (1) CPJ 11 (NC) Poonam Verma v. Dr. Ashwin Patel is on faulty treatment. In this case, there is no question of pain killer etc. We have proceeded in this case only on the admitted facts as alleged by the parties. The rulings reported in 2000 (2) CPJ 220 Ashok Kumar Singh v. Dr. Mohan Thakur and 1995 (1) CPJ 11 (NC) Poonam Verma v. Dr. Ashwin Patel is on faulty treatment. In this case, there is no question of pain killer etc. and putting the complainant on traction. But the case is the doctor did not advised what he ought to have advised and did not do what he ought to have done. Therefore, there is deficiency in service. In the ruling reported in 2000 (2) CPJ 517 Surinder Kumar (Laddi) v. Dr. Santosh Menon, it has been held that every unsuccessful operation cannot be considered as negligent act of doctor. In this case, the doctor did not do operation at all. Therefore there is no question of success or unsuccess. In this case, the doctor should have done the operation but he did not do it. 15. Now, the question is about the quantum of compensation. The negligence of the doctor is there. The complainant has remained in the nursing home of the appellant for about 13 days. He has given the details of his expenses. He has purchased medicines. He had also gone to Saharanpur, Meerut etc. and consulted doctors and paid them their fee. The argument of the learned counsel for the appellant could have been when the appellant treaited the complainant and kept him in his nursing home for 13 days, why should he refund the charges. If he unnecessarily kept him in his nursing home without operation, he was not entitled to charge anything. Had he operated the victim and kept him in his nursing home and had the operation been unsuccessful, the position would have been different. But any amount claimed only to grab money must be refunded. Now the question is of professional loss, mental agony, constant pain. The learned Forum has very properly appreciated and calculated the compensation. The Forum has not only allowed the expenses but calculated all the factors taken together. The complainant may not be paid the expenses of further operation, if any. Now the question is of professional loss, mental agony, constant pain. The learned Forum has very properly appreciated and calculated the compensation. The Forum has not only allowed the expenses but calculated all the factors taken together. The complainant may not be paid the expenses of further operation, if any. But at least, he should get compensation for what he has suffered and looking his status in• the society that he may not be called Langra may be Langra Pas defined by the learned Forum and looking also the fact that he is a practising lawyer has to rush from court to court and may not properly move, the compensation of Rs. 1, 20, 000/- cannot be said to be excessive. For all what has been discussed above, we have got nothing to differ with the finding of the learned Forum. This appeal has got no force and is to be dismissed. ORDER The appeal is dismissed. However, we do not think proper to saddle the appellant with further cost of this appeal.