JUDGMENT D.K. Kapoor, Member (J) 1. On 15.1.2004 complainant had an accident and was admitted in the Emergency Ward of GMC Jammu for treatment of fracture Left Femur (LF). Respondent was HOD of Orthopedic Unit in the GMC Hospital to which he was shifted on 16.1.2004 from Emergency ward but instead of immediately operating the complainant, he was allegedly told by respondent and his henchmen in the staff that his turn for operation was likely to come after 40 days or so. He was however allegedly coaxed by above referred persons to get operated in 'Rameshwar Nursing Home and Diagnostic Centre', Bakshi Nagar Jammu run by respondent where the operation would be immediately done. Impelled by the circumstances and fearing that his condition may deteriorate, he got discharge from the GMC and took admission in the said Nursing Home where respondent operated him on 18.01.2004 for 'OPEN REDUCTION INTERNAL FIXATION' of SOF # and bone grafting with K-Nail. The complainant was advised to take some post operative medicines and physiotherapy. He remained under treatment of respondent from January 2004 to July 2005 but he had sustained pain at the LF. On rechecking, respondent told the complainant that due to 'non-union of fractured bones' he will have to undergo another surgery for bone grafting etc. He however sought opinion of Dr. Vikrant Sharma, another Ortho-specialist in GMC (in respondent's Unit) on 21.6.2005 who revealed there was a gap at the site of fracture which was causing Knee-limb Thigh Stiffness and difficulty in walking which due to 'non-union'. He also suggested a second bone graft surgery. Complainant again approached respondent who advised ORIF and Bone Grafting due to non-union of bone. Complainant consulted Dr. Karam Singh Memorial Orthopaedic Hospital and Research Centre & Multi Specialty Hospital at Amritsar ('Amritsar Hospital'), where orthopedic surgeon told him that second surgery was imminent as the K-Nails already planted were of smaller size than required specification and were loosely inserted which resulted in non-union despite the lapse of more than a year. Obviously therefore the complainant got operated at Amritsar on 21.3.2006 'with insertion of inter-locking nailing with two digital and two proximal screws tightened at fracture LF'. This subsided pain and fractured bone joined although the damage already caused due to first surgery left permanent disability in him by shortening leg and inability to squat etc. Obviously therefore the complainant got operated at Amritsar on 21.3.2006 'with insertion of inter-locking nailing with two digital and two proximal screws tightened at fracture LF'. This subsided pain and fractured bone joined although the damage already caused due to first surgery left permanent disability in him by shortening leg and inability to squat etc. He is unable to walk even without the support of a stick. 2. Complainant has claimed Rs. 83,150 incurred on first operation and medicines etc., including pre and post operative tests at Jammu and Rs. 1,01,450 at Amritsar. Besides, he has claimed Rs. 4 lakhs for respondent's negligence etc; Rs. 2 lakhs for two attendants for dependency who rendered him assistance during the period of pain, agony, disability and loss of earning etc. and Rs. 2 lakhs for mental agony etc. 3. In his written version of defence respondent has pleaded that he is a Senior orthopedic surgeon, senior professor and Head of the Unit at GMC & qualified as M.S. PGIMER Chandigarh besides having 26 years experience in dealing with various kinds of orthopedic patients successfully; that he had successfully completed the operation on complainant and as per follow up observations the complainant was recuperating but after some time he stopped seeking his advice and may have had a jerk and jolts causing non-union; that no negligence can be attributed to him for Non-union of bone. On noticing Non-Union on 26.7.2005 he had advised complainant for a second surgery, which the complainant got done at Amritsar that too for Non-joint; that there is no evidence to prove that K-Nails fitted by him at Jammu were short in size or loosely fitted. Besides, the expenditure referred to by the complainant is only highly exaggerated. According to him no expert/evidence has been examined by the complainant to prove his negligence. He has prayed to dismiss the complaint with costs. 4. Complainant has filed copies medical prescriptions etc. and affidavits-in-evidence. Respondent has filed his own affidavit, affidavit of Dr. Deepinder Choudhary, a resident of Jammu and working in CMC Ludhiana and that of Dr. Vikrant Sharma. Even cross-examination of complainant and his witnesses and respondent has been conducted. Dr. Deepinder Choudhary and Vikrant Sharma were not cross-examined. 5. In their respective affidavits parties have reiterated their stand taken in their pleadings except a few insignificant additions. Deepinder Choudhary, a resident of Jammu and working in CMC Ludhiana and that of Dr. Vikrant Sharma. Even cross-examination of complainant and his witnesses and respondent has been conducted. Dr. Deepinder Choudhary and Vikrant Sharma were not cross-examined. 5. In their respective affidavits parties have reiterated their stand taken in their pleadings except a few insignificant additions. Complainant has stated in cross-examination that there is no GMC record showing his surgery was fixed after 30-40 days from the date of his admission in respondent's unit as he and his attendants were verbally told by respondent etc. Respondent has also not produced any record showing how many patients were awaiting surgery in his Ortho Unit at GMC and any record pertaining to his Nursing Home pertaining to complainant stating that record is usually destroyed after two years as per practice. In his affidavit Dr. Deepinder Choudhary has stated that he has worked with respondent in Jammu and he performed successful operations. He opined that Non-union of fracture is a known complication and in this case complainant failed to follow-up and himself spoiled his case. Dr. Vikrant Sharma has filed affidavit on behalf of respondent stating, inter alia, that respondent has sound knowledge in the field; that he was working with respondent in GMC from 2004 to 2007 and respondent never compelled the complainant for treatment in his Nursing Home; that non-union occurs in almost all bones after fracture, whether operated or not (para 5 in affidavit); that nail or plate is selected by the operating surgeon as per his experience etc.; that complainant was repeatedly advised by respondent and on 26.7.2005 he was diagnosed 'non union' and advised 'bone grafting and fixation' (para 9); that 'as per Dr. Gurvinder's certificate dated 21.01.2007, he replaced a loose K. Nail with I/L Nail & Bone grafting after two years of first surgery. He is right to the extent as all nail become loose over a period of time i.e. 1-2 years after insertion'; that on 04.12.2005 he had himself diagnosed Madan Lal as a case of Non-union femur (L) with K-Nail in position and no mention of loose K-Nail as there was no sign of loose nail prescription in X-rays. He has added that non-union is a documented well known complication of fracture all over the world. He has added that non-union is a documented well known complication of fracture all over the world. According to his opinion 'in this case, non-union is due to neglect on the part of patient or some injury related factors.' 6. Dr. Sudesh Sharma, respondent stated on cross-examination by complainant's counsel that on 26.7.2005 he had written that it was a case of non-union, after examining X-rays, and advised bone graft. 7. We have heard learned advocates for the parties and perused their written submissions. According to complainant's advocate non-performing surgery in GMC, although it was admittedly a case of emergency, supplement by proof of performing surgery at his own Nursing Home by respondent immediately after complainant's taking discharge from GMC, is by itself proof of gross negligence. Besides that respondent took the complainant's case in such a casual cursory manner that for over one year he would tell complainant that his wound was healing and on 27.6.2005 he sprang a surprise on him saying it was a case of non-union and he need a second bone graft. According to him Dr. Gurvinder Singh at Amritsar diagnosed complainant's non-union of femur as a result of loose fixation of nails which were not of required size and after treatment at Amritsar the complainant's wound healed and union took place. Moreover respondent failed to produce record of his Nursing Home to prove, inter alia, receipt of payment as alleged by complainant. He has also submitted that the manner in which the respondent conducted himself towards the complainant's case, no professional of ordinary skill would have, had he been acting with ordinary care. The complainant has become physically handicap for life on account shortening of left leg and unable to attend his usual daily pursuits. The complainant deserves exemplary damages besides he was forced to incur the unnecessary expenditure on medicines etc. and engaging attendants to look after him. The complainant is required to be suitable indemnified by respondent for being unable to attend his business which caused loss of earning for whole life. Respondent's advocate has argued that non-union of fracture is not due respondent's negligence as the complainant was showing signs of recovery during follow up. The complainant must have had some accident due to which non-union had resulted. Respondent's advocate has argued that non-union of fracture is not due respondent's negligence as the complainant was showing signs of recovery during follow up. The complainant must have had some accident due to which non-union had resulted. Even the K-Nails fixed were as per experience of respondent and requirement for the fracture and no negligence was committed in selecting and fixing K-Nails, nor were those Nail loosely fitted as alleged. After sometime, it is submitted; nails get automatically loose and have to be replaced. According to learned advocate non-union of fracture is a known complication of bone surgery and respondent cannot be held responsible for the same. Otherwise he is a highly skilled, educated and experienced Ortho Surgeon and exercised his discretion in fixing nails, so he cannot be asked to provide damages to complainant who has submitted an exaggerated claim. He has also refuted that respondent or any staff member in his Ortho Unit in the GMC had prompted complainant to get the surgery done at respondent's private Nursing Home. 8. The admitted facts are: (i) That complainant was admitted in GMC Emergency was on 15.1.2004 as fracture LF; (ii) That he was shifted to Ortho Unit of which respondent was the HEAD and till 17.1.2004 he was not operated upon by respondent for which respondent has ascribed no reasons in his W/V and affidavit; (iii) That complainant was discharged from GMC or voluntarily took discharge (under compelled circumstances) and got admitted in respondent's above named private Nursing Home; (iv) That he was operated upon in respondent's private Nursing Home on the very day i.e. 18.1.2004 where respondent inserted K-Nail for union of the complainant's femur fracture; (v) That complainant sought respondent's advice as and when needed after operation but complained pain in the nailed portion of his left femur; (vi) That on 26.7.2005 he was told there was 'non-union' of his fracture and was advised to undergo another surgery for 'bone graft'; (vii) That the complainant got 'bone graft' etc. done at Amritsar Hospital whereafter pain subsided and fracture also united; (viii) That during this ordeal the complainant has suffered at least 15% permanent disability (refer to laminated certificate signed dated 02.7.2005 bearing countersignature of respondent); (ix) That in the supra certificate 'shortening of left leg and having stiffness with inability to squat and walk on crutches'; (x) That the complainant has made payment for services rendered by respondent in his private Nursing Home; and (xi) That respondent failed to produce Nursing Home record on the excuse of having been destroyed being old one. 9. One of the recognized principles in determining medical negligence is, whether the doctor adopted the practice in the case that would be adopted by a doctor of ordinary skill in accordance with (at least) one of the responsible bodies of opinion of professional practitioners in the field. As noticed above the complainant got admitted the GMC Hospital Jammu on 15.1.2004 after he met with a road accident and suffered fracture LF but till 17.1.2004 he was not operated upon. No justifiable reason for not immediately operating, has been advanced by respondent who was Head of Ortho Unit to which the complainant was shifted on 16.1.2004 from the Emergency Ward. Respondent has admitted in his cross-examination dated 15.4.2010 that complainant's was a case of emergent nature and that's why he was operated upon immediately on 18.1.2004 in his Nursing Home. Non furnishing of any reason for not conducting surgery in GMC by the respondent is by itself a proof of not only negligently dealing with the complainant but clandestine avoidance as well. Respondent has also taken a plea that non-union could be due to the fact that complainant was a sugar patient but conducted surgery without ascertaining his sugar level, which is observed as an indispensable condition prior to surgery. The complainant has alleged that he was told in respondent's Unit that he was to be operated after 40 days and this version is supported by the fact that on the very next day respondent operated him in his private Nursing Home instead in GMC Hospital. However there is ample proof of fact that operation of the complainant was intentionally delayed in GMC for obvious reasons which compelled him to take a voluntary discharge from respondent's Unit and was operated in respondent's private Nursing Home. However there is ample proof of fact that operation of the complainant was intentionally delayed in GMC for obvious reasons which compelled him to take a voluntary discharge from respondent's Unit and was operated in respondent's private Nursing Home. The burden is on the respondent to disprove this important aspect of the matter, which he failed to. This clandestine practice by some doctors in government hospitals has eroded public faith in the consecrated profession. This is an acknowledged fact that a sizeable number of medicos on government pay rolls have been simultaneously running private Clinics/Nursing Homes which deprive the deserving patients of medical facilities and their services in government institution. The mushrooming of private Nursing Homes in recent years is the result of this malignant practice by those under Hippocratic Oath, which goes unchecked by those at the helm of affairs. This case is one of the clumsiest examples showing that respondent created an atmosphere in his Ortho Unit of GMC, which forced the complainant to get operated in the private Nursing Home run by him which was done on the very next day of his taking discharge from Government Hospital. His Nursing Home incidentally happens to be located in the vicinity of GMC. These circumstances cumulative constitute negligence on the part of the respondent, needless to say that he has failed to prove why complainant was not immediately operated in GMC/his Unit as a case emergency "Every doctor, whether at a Government hospital or otherwise, has the professional obligation to extend his services with due expertise for protecting, life." [Pt. Parmanand Katara v. Union of India & Ors. : AIR 1989 SC 2039 : 1989 SCR (3) 997]. Even Code of Medical Ethics ordains that it is the obligation of every physician that 'no patient should be neglected.' It is a part of the professional ethics to start treating the patient as soon as he is brought before the doctor for medical attention inasmuch as it is the paramount obligation of the doctor to save human life and bring the patient out of the risk zone at the earliest with a view to preserving life and limb. 10. Respondent has obviously not adhered to any of these principles or guidelines rather entered into unprofessional and unethical practices and treated the complainant in the most casual and cursory manner unbecoming of a professional. 10. Respondent has obviously not adhered to any of these principles or guidelines rather entered into unprofessional and unethical practices and treated the complainant in the most casual and cursory manner unbecoming of a professional. Hon'ble Supreme Court has held that a doctor 'should attend the patient and give proper medical aid' without unnecessary delay [See : AIR 1996 SC 2426 ]. There are a number of instances where judicial and quasi judicial authorities have held doctor responsible for negligence e.g. in the case of Ranjit Kumar Das v. Medical Officer, ESI Hospital & Others, reported in III (1997) CPJ 336 (CDRC West Bengal) it has been held that even the failure of the hospital to treat the card holder on the ground of non-availability of bed, would amount to negligence and therefore, adequate compensation must be provided. 11. Another important aspect of the case is that notwithstanding the fact that operation was conducting in respondent's private Nursing Home on 18.1.2004, the complainant regularly attended respondent's NH for quite sometime as a 'follow up' case. Respondent continued to tell him that the fracture was getting repaired (healing). The respondent put the complainant on pain relievers instead of giving required attention to his fracture. The respondent failed to establish that (i) immediately after the surgery on 18.1.2004 he had ascertained with the help of X-ray etc. that K-Nails were satisfactorily fitted and (ii) thereafter also X-ray or CT Scan or MRI was taken in order to be sure that complainant's constant complaining about pain was not associated with non-union of fracture. No doctor/surgeon of ordinary skill would adopt such practice as was done by respondent. Had he done so, non-union of complainant's fracture would have been detected much earlier and complainant could be saved from more damage which he virtually suffered due to delayed diagnosing. The respondent has taken diagonally different pleas in his defence, though hypothetically, that nonunion may be due to complainant's being a diabetic or due to some mild accident or due to his own negligence, which is but a fishing expedition. This hypothetical and stray defences will not absolve the respondent from the acts of omission or commission performed by him from the day one in dealing complainant's bone fracture. 12. Regarding 'loose and short Nail,' DISCHARGE AND FOLLOW-UP CARD Issued by Dr. This hypothetical and stray defences will not absolve the respondent from the acts of omission or commission performed by him from the day one in dealing complainant's bone fracture. 12. Regarding 'loose and short Nail,' DISCHARGE AND FOLLOW-UP CARD Issued by Dr. Gurvinder Singh, operating Surgeon at Amritsar, furnishes comprehensive evidence in as much as it shows under head 'Case Summary/Investigations' - "S.A. # Site exposed, screw removed, K nail exposed and removed. Interlocking Nail (Yogeshwar 11 x 38) inserted. The prescriptions and in-patient summary issued by respondent does not show the size of the K-Nail used by him in complainant's case. A look at the affidavit sworn by Dr. Vikrant would show how carelessly the complainant was treated. Para is as under: “Date of Operation 18.01.2004 1st Consultation X Ray Shows satisfactory healing 2nd ConsultationVitamins & calcium satisfactory 3rd Consultation01.08.2004-Adv Pain relievers (Pains not for fracture) 4th Consultation28.05.2005 medicine for knee pain (no fracture complaint c/ o pain knee) 5th Consultation26.07.05 – Diagnosed non union advised surgery bone grafting 13. Dr. Vikrant has stated in para 10 of affidavit that 'in follow up, I personally examined Mr. Madan Lal on 21.06.2005 and told him about non union and fracture gap' and 'Earlier neglect has been no contact with Dr. Sudesh me or anybody w.e.f. 07.06.04 to 26.7.2005, a neglect of more than one year.' Obviously therefore after K-nailing complainant's fracture on 18.01.2004 respondent continued to treat him with absolute wanton care unbecoming of an Orthopedic surgeon who managed his injury by putting complainant simply on pain relievers least caring to examine his wound by X-ray etc. and now devising a ridiculous defence that he complained pain in his knee and not at the fracture site. It was on 21.6.2005/26.7.2005 i.e. after a period of more than 1-1/2 year after his being continuously in touch with respondent and Dr. Vikrant Sharma that he was told that his fracture was a case of non-union (and not due to break after union?) and required bone grafting. The only defence of the respondent, which is but hypothetical and also after thought is that, prior to above 'date the complainant's fracture showed satisfactory union and the non-union may have been caused by a mild accident any time prior to his last opinion, there being not evidence in support of defence version. Indeed the complainant took proportionately longer time to get fresh bone grating etc. Indeed the complainant took proportionately longer time to get fresh bone grating etc. at Amritsar but that cannot relieve respondent of his carelessness and negligence in dealing with complainant's fracture. Dr. Sudesh has nowhere stated that after the first surgery some CT scan or MRI of the complainant was advised as proof of convalescence. Till 28.5.2007 NO NON-UNION is reported from the date of surgery and not even reference made that any X-ray was advised. It is unacceptable that on 26.7.2005 Non-Union was discovered, which was never there prior to that. In Jacob Mathew's Case, it was observed by Hon'ble Supreme Court of India that 'To establish liability on that basis it must be shown (i) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care'.[Emphasis laid] 14. The other plank of defence taken by the respondent is that Non-union is a known complication in bone fractures and he cannot be held responsible for any kind of negligence for the same, is only sugar coated. Certainly Non-union is a known complication in fractures but various facts, among others, that weigh heavily are (i) part of the body repaired; (ii) under sized nail;(iii) infection in bone & (iv) lack of medical attention to the nail union. This type of complication is rated @ 3% only i.e. it occurs only in rarest of rare cases and not that kind of thing may happen in almost all kind of case. The medical opinion goes unrebutted that 'this is critical because under-sizing nail diameter will give a loose fit and over-sizing nail may cause nail incarceration (Reference: Department of Orthopaedics, Paraplegia, Rehabilitation and *Anaesthesia, Postgraduate Institute of Medical Sciences, Rohtak-124001, India). At the same time nail may become loose on healing of the fracture'. We are therefore not prepared accept as gospel truth the casual defence taken on behalf the respondent. 15. Regarding expert evidence suffice it to say that Expert evidence is not required in all kind 'medical negligence cases.' Indeed expert evidence is necessary when Fora come to the conclusion that case is complicated or such that it cannot be resolved without assistance of expert opinion. 15. Regarding expert evidence suffice it to say that Expert evidence is not required in all kind 'medical negligence cases.' Indeed expert evidence is necessary when Fora come to the conclusion that case is complicated or such that it cannot be resolved without assistance of expert opinion. Fora cannot follow mechanical or strait jacket approach and each case has to be judged on its own facts. In Kishan Rao v. Nikhil Super Specialty Hospital & Another (SC) 2010 (2) R.C.R. (Civil) 929 Hon'ble Apex Court has held that 'Medical Negligence Claim of petitioner cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor'. It is now settled position of law that in cases of medical negligence cases that courts should be loath in taking cognizance in each and every case of medical negligence that comes before it as in that case doctors will be found more in courts than in dispensaries. But the exception is that they are exempted if it proved that they performed their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients has to be paramount for the medical professionals. 'As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind'. In order to assess their performance doctrine of res ipsa loquitur can be brought in aid as each case has its own facts. The complainant has claimed a sum of Rs. 83,150.00 spent at Jammu; Rs. 1,01,450.00 incurred at Amritsar; Rs. 4 lakh damages on account of respondent's negligence and deficiency in service; Rs. 2 lakh for engaging attendants for two years and Rs. 2 lakh for bodily pain, mental agony and incapacity to ear for whole life. In paragraph 2 of the complaint he has given break-up of the expenditure incurred during surgery etc. at Jammu and in para 6 break up of the money spent on operation at Amritsar. 2 lakh for engaging attendants for two years and Rs. 2 lakh for bodily pain, mental agony and incapacity to ear for whole life. In paragraph 2 of the complaint he has given break-up of the expenditure incurred during surgery etc. at Jammu and in para 6 break up of the money spent on operation at Amritsar. Details are as under: JAMMU S. No.Description of expenditurePayments made 1.Operation charges received by respondentRs.30,000.00 2.Room charges @ Rs.500/-per dayRs.5,000.00 3.Medicine from one weekRs.8,100.00 4.do for three week @ Rs.3000/-per weekRs.9000.00 5.Medicines from 15.2.2004 to 31.12.2004Rs.17,250.00 6.-do-from 11.01.2005 to 26.7.2005Rs.7000.00 7.x-rays Charges @ Rs.100/- for 19 nos.Rs.1800.00 Total=Rs.83,150.00 AMRITSAR S. No.Description of expenditurePayments made 1.Blood 2 Units (A Negative)Rs.5000.00 2.Medicines purchased from New Keerat MedicosRs.3905.00 3.Inter Nailing with boltsRs.6760.00 4.Medicines from New Keerat MedRs.3585.00 5.Payment made at Dr. Karam Singh Hospital dated 28.3.2006Rs.30,000.00 6.x-rays from 20.3.2006Rs.1000.00 7.Medicines for 6 months @ Rs.1500/ pmRs.9000.00 8.Removal of one Nail by operationRs.5000.00 9.Medicines after Nail RemovalRs.1000.00 10.Transportation from Jammu to Amritsar & back from 20.3.06 to 29.3.06Rs.15,500.00 11.Transportation from Jammu to Amritsar & back from in June 2006Rs.5500.00 12.Boarding & lodging of attendants at AmritsarRs.20,000.00 TOTAL=Rs.1,01,450.00 Although some bills for expenditure incurred by complainant at Amritsar have been annexed with complaint but no bills/cash memos etc. for money spent at Jammu are produced yet we cannot deny that complainant had to spent money and he has proved the expenditure. Even otherwise the complainant has claimed probable amount of money. The respondent has though stated that the complainant has claimed exaggerated amount of damages but he has failed to prove record of his Nursing Home qua complainant's expenditure. He has stated that he does keep record after two years although he is supposed to keep record for at least three years as per rules. He could otherwise produced recent record w.r.t. such charges received including room rent, which has not done and that too without any plausible reasons. This cannot be denied that the complainant is unable to take care of him due to disability/shortening of his leg and inability to squat even, as certified by GMC registrar. In view of the overwhelming evidence in favour of the complainant we hold that the respondent has dealt complainant in the most reckless and negligent manner unbecoming of a skilled professional and for deficiency of service for which the complainant made payments as demanded by him. In view of the overwhelming evidence in favour of the complainant we hold that the respondent has dealt complainant in the most reckless and negligent manner unbecoming of a skilled professional and for deficiency of service for which the complainant made payments as demanded by him. Respondent is therefore directed to compensate complainant for mental agony and pain, besides financial loss and loss of physical comforts for whole life due to shortening of leg. We direct respondent to pay Rs. 2.50 lakhs to complainant within four weeks.