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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

                                            F.A.No.883/2007

Alladisetti Venkateswara Rao @ Venkataswamy,
S/o.Late Rama Rao,
R/o.Movva Palem Village & Mandal,
Krishna District. … Appellant/

Complainant

And

Dr. Mannem Bhavani Sankar,
Orthopaedic Specialist,
S/o.name not known,
R/o.Padmavathi Hospitals,
Rajendra Nagar, Main Lane, Eluru Road,
Gudivada, Krishna District. … Respondent/

Opp.party

Counsel for the Appellant : M/s. M.Ram Gopal Reddy
Counsel for the Respondent : M/s. V.Gowrisankara Rao


CORAM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT. M.SHREESHA, HON’BLE MEMBER.

MONDAY, THE TWENTY SECOND DAY OF FEBRUARY,
TWO THOUSAND TEN.


Oral Order (Per Smt M.Shreesha, Hon’ble Member)

****

Aggrieved by order in C.C.No.38/2006 on the file of Dist.Forum-I, Krishna , Machilipatnam , the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant met with an accident on 23.12.2004 and injured his left hand and he was immediately rushed to opposite party hospital on the same day at around 9 p.m. and after examining the complainant , opposite party advised the complainant to take X-ray of his left hand and gave prescriptions to relieve the pain in night. Accordingly the X-ray was taken in the lab maintained by the opposite party hospital and the opposite party observed two fractures on the left hand of the complainant at lateral end of left clavicle and at left wrist and POP bandage was put on the complainant’s left hand on 24.12.2004 and the opposite party asked the complainant to come for review after two weeks and the complainant also purchased the medicines prescribed by the opposite party doctor for a period of two weeks. The complainant once again approached the opposite party on 26.12.2004 wit unbearable pain with swelling of fingers and the opposite party gave some more medicines and advised him to come after two weeks. Inspite of medicines used, the pain and swelling did not reduce and the complainant once again visited the opposite party on 30.12.2004 and the opposite party checked the complainant and assured him that the pain would reduce and once again gave a prescription. The complainant along with his second son had visited the opposite party hospital hoping that the new medicines would cure him of the pain and visited opposite party for review on 5.1.2005 i.e. after two weeks. After completing the checkup of the left hand, the opposite party gave some more medicines and asked him to visit after a month. After a lapse of 45 days, the opposite party removed the Plaster of Paris and the complainant found that at elbow point his hand was not moving freely and held up in L shape and the fingers of the left hand remained immovable , still and senseless. Inspite of the opposite party’s forcible movements by stretching the same to move freely, the complainant’s left hand at elbow point had become stiff and the complainant suffered severe pain during the checkup and during the removal of the bandage. The opposite party advised him physiotherapy and the complainant visited the opposite party hospital every alternative day from the date of removal of the bandage atleast 25 times and inspite of physiotherapy treatment the complainant’s left hand was not moving freely and locked up in L shape .

The complainant submits that he obtained second opinion from Dr.Sai Prasad, Orthopaedic Surgeon, who took X-rays of left hand elbow and wrist and opined that there was another fracture at elbow point which was not detected at an early stage and due to the not treating it the pain at that point had grown and this doctor had also advised physiotherapy and gave prescription of medicines. The complainant once again approached opposite party on 3.5.2005 with the findings of doctor C.Sai Prasad and the opposite party took out x-ray at his own hospital and blamed the complainant for not informing about the said fracture at the elbow point earlier and after heated exchange of words the doctor informed them that the hand would remain like that . Thereafter the complainant visited M.J.Naidu M.S. (Ortho) along with the advised prescriptions and X-rays and this doctor after going through all the papers advised the complainant to visit his hospital on 11.6.2005 since expert doctor K.Krishnaiah from Hyderabad would visit his hospital on 11.6.2005. The said expert doctor K.Krishnaiah after going through the entire record expressed that this was not the right time to do the surgery and to approach him again after six months and even then the success rate even after the surgery would be only 50-50.The complainant is an agriculturist aged 50 years having two acres of land of his own and was a hard worker and also raising buffaloes and due to non functioning of left hand since 23.12.2004 he is not able to perform his daily duties only because of the negligence of the opposite party. He got issued legal notice on 5.10.2005 calling upon the opposite party to pay Rs.5 lakhs by way of compensation but did not receive any response. Hence the complaint seeking direction to the opposite party to pay Rs.3 lakhs towards compensation with interest at 12% p.a. , to pay Rs.25,000/- towards the costs of the medicines, to pay Rs.50,000/- towards future operation costs , Rs.1 lakh towards pain and suffering and Rs.25,000/- towards negligence and other costs.

Opposite party filed counter stating that the complainant had approached him on 23.12.2004 after the accident and sustained injuries on his left hand wrist and left shoulder and he prescribed medicines. He also advised him to use an arm sling for relief of pain and after examining the X-ray he found fracture at the left wrist joint i.e. colles fracture and fracture at lateral end of left clavicle . Therefore on 24.12.2004 the opposite party applied POP cast to his left wrist and forearm under Inj.IV Trofol and Inj.Atropine and also applied arm sling for the management of the fracture to the lateral end of his left clavicle. He advised necessary precautions and physiotherapy and the complainant was sent home on 24.12.2004. The opposite party denies that he advised the complainant to visit him again after two weeks. The complainant approached the opposite on 26.12.2004 though he was advised to come on 25.12.2004 and denies that the complainant ever complained of unbearable pain and swelling . He also denies that he has given fresh medicines and the complainant inspite of using these medicines still continued to suffer from pain and swelling . The opposite party submits that the complainant come on 30.12.2004 for routine checkup and the opposite party advised him to do physiotherapy . He submits that the complainant’s son came on 31.12.2004 without bringing the O.P. card and asked the opposite party to give the prescription of the medicines and accordingly this opposite party gave prescription and denies that the complainant visited the hospital of the opposite party repeatedly.

The opposite party doctor contends that on 5.1.2005 the complainant came without OP card and he advised him to come regularly with OP card and undertake physiotherapy by moving the fingers for 5 minutes per hour and he approached the opposite party only on 2.2.2005 with stiffness in fingers and the opposite party removed POP bandage and he noticed that the complainant developed Sudek’s Dystrophy in the left hand as the complainant did not take physiotherapy regularly. Though the complainant took physiotherapy on 2.2.2005, 3.2.2005, 4.2.2005, 5.2.2005, 7.2.2005, 9.2.2005, 11.2.2005, 14.2.2005, 16.2.2005, 17.2.2005, 18.2.2005, 21.2.2005 he failed to take physiotherapy on 6.2.2005, 8.2.2005, 10.2.2005, 12.2.2005 ,13.2.2005,15.2.2005,19.2.2005 and on 20.2.2005 and he was very irregular and has neglected to do physiotherapy. On 21.2.2005 the complainant approached the opposite party and informed the complainant that he has to do physiotherapy regularly. The compalinant got some improvement in the movements of fingers and wrist. But did not do physiotherapy from 21.2.2005 and did not take any more treatment or advise from this opposite party. The Doctor contends that he does not know what transpired between 21.2.2005 to 21.3.2005 for a period of one month. Only on 3.5.2005 once again the complainant approached the opposite party stating that his swelling and pain have increased and then when the opposite party took X-ray he found excessive bone formation at the elbow jont due to massage with fracture olecranon. Onceagain he prescribed the same medicines and opposite party denies that the complainant approached with the findings of doctor C.Sai Prasad and also submits that he is not aware that the complainant visited Dr.M.J.Naidu or that he met K.Krishnaiah , the Orthopaedic specialist . The doctor contends that it is only because of the carelessness and negligence on behalf of the complainant in not doing physiotherapy that he developed Sudek’s Dystrophy which may arise due to various unknown reasons depending upon physiological factors. He submits that the complainant had suppressed some X-rays and there is no negligence on his behalf.

The District Forum based on the evidence adduced i.e. Exs.A1 to A32 and Exs.B1 to B3 dismissed the complaint on the ground that the complainant failed to prove any medical negligence on behalf of the opposite party.

Aggrieved by the said order the complainant preferred this appeal.

The facts not in dispute are that the complainant met with an accident on 23.12.2004 and approached the opposite party on the same day and the opposite party took X ray and diagnosed as Colles’ fracture and there was also fracture to his left clavicle (lateral end) and the opposite party applied POP and advised movement in arm sling and physiotherapy . The learned counsel for the appellant/complainant submitted that since the very next day the complainant was suffering with pain and swelling and inspite of repeatedly going to the doctor 26.12.2004 and 30.12.2004on and 5.1.2005, it was only after 45 days that the opposite party removed the POP because of which the complainant found that his left hand elbow point was not moving freely and is held up in ‘L’ shape and inspite repeated physiotherapy and attending to the opposite party hospital every alternative day atleast 25 times it still did not improve and he approached Dr.C.Sai Prasad for second opinion who took X-ray and told him that there was fracture in the elbow point at the complainant’s left hand . The complainant once again approached the opposite party on 3.5.2005 and the opposite party took X-ray and blamed the complainant for not informing him about the fracture in the elbow. It is also the complainant’s case that he visited Dr.M.J.Naidu in whose hospital he also met Dr.K.Krishnaiah from Hyderabad on 11.6.2005 and this expert opined that it is not the right time for surgery and to meet him after six months and also informed that even after surgery the success rate of the surgery would be 50-50. It is the case of the respondent/opposite party that only because of the carelessness and negligence of the complainant in not taking physiotherapy regularly , he developed Sudek’s dystrophy which would also develop due to certain unexplained physiological factors. The respondent doctor also submits that the complainant did not take physiotherapy treatment after 21.2.2005 till 3.5.2005 . Even as per Ex.A17 which is the prescription given by Dr.C.Sai Prasad on which the complainant is relying upon, physiotherapy was only advised to be continued till 11.4.2005 . The physiotherapy register does not show that the complainant continued the physiotherapy and the complainant did not file any documents in support of his case that he continued physiotherapy till 3.5.2005. The prescription of Dr.sai Prasad i.e. EX.A17 also does not say that this fresh fracture is on account of POP treatment given by the opposite party doctor or because of the negligence in the course of treatment rendered by the opposite party . Even Exs.A20 and A21 which are prescriptions of Dr.M.J.Naidu and Dr.K.Krishnaiah, both orthopadecions on which the complainant is relying upon only specify that there is Sudek’s ostro dystrophy but do not say that it is only because of the negligence of the opposite party. It is also stated in the prescription of Dr.K.Krishnaiah that the complainant had undergone massage of his left hand . Hence in the absence of any documentary proof it cannot be considered that the second fracture is only because of some negligent treatment rendered by the opposite party in treating the first fracture.

We have perused the examination of PW. 2 who deposed on behalf of the complainant . In his examination PW.2 stated that Linear fracture is less than 3 weeks. It is not in dispute that the complainant met with an accident and for the first time approached the opposite party who applied POP on 24.12.2004 and it is the complainant’s own case that he was taking physiotherapy till 21.2.2005 and approached the opposite party only on 3.5.2005. The statement of PW.2 witness that the new fracture is less than 3 weeks old it cannot be construed by any stretch of imagination that this fracture is resultant of the treatment rendered by the opposite party . According to the expert witness this linear fracture might have been caused due to stretch or massage and therefore the complainant failed to establish that the second fracture was resultant of treatment given by the opposite party doctor. The opposite party filed copy of medical literature marked as Ex.B3 in which it is stated as follows:

“Sudeck’s Atrophy Osteo Neuro Dystrophy. Sudeck’s atrophy is characterised by pain, stiffness in the wrist and fingers , red shiny skin and osteoporosis of the bones of the wrist and hand. Sometimes it is unavoidable but often it is due to inactivity following the fracture. The main problem is the finger joint stiffness which once established is soon irreversible and treatment must be directed to maintaining finger mobility by active exercise. Paradoxically , reapplication of a forearm plaster sometimes relieves pain sufficiently to allow active finger exercises.”

When it is not in dispute that the opposite party had advised physiotherapy time and again when the complainant visited him there is no evidence to show that the complainant had undertaken physio therapy treatment prior to 2.2.2005. The register does not show that he had taken the treatment after 21.2.2005 and even Dr. C.Sai Prasad in Ex.A17 whom he visited asked him to continue the same physiotherapy treatment only. In his evidence PW.2 doctor C.Sai Prasad stated that the complainant had united colles fracture and fracture of olecranan. And by the time he examined the complainant the complainant developed sudeck’s Osteo Dystrophy. Pw2 expert witness clearly stated that lack of movements of fingers by the patient is the cause for sudeck’s Osteo Dystrophy and does not find any negligence in the treatment rendered by the opposite party .

We rely on the judgement of the apex Court in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) wherein the Supreme Court opined as follows:

"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care....

The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time ……

Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332.In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National Consumer Commission held a homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.

It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best efforts of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.”

In the above stated judgement the Apex Court clearly laid down the law that expert opinion is necessary in medical negligence cases and in the instant case PW.2 expert witness categorically deposed that there is no negligence on behalf of the opposite party in rendering medical treatment to the complainant.

In Bolam v. Friern Hospital Management Committee, WLR at p.586 it is held as follows:

“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”

In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”

“The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client a duty in tort as well as in contract to exercise reasonable care in giving advise or performing services”.
Supreme Court then opined as under:

“The skill of medical practitioner differs from doctor to doctor. The very 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 the 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 view of the afore mentioned judgements, in the absence of any expert opinion or documentary evidence to state that there is negligence on behalf of the respondent/opp.party it cannot be stated that the opposite party did not follow the standard normal practices of medical parlance. To reiterate, the evidence of PW.2 , rules out the possibility of existence of hair line fracture on 23.12.2004 since the age of hairline fracture is less than three weeks old and might have been caused by the end of February,2005 and Ex.A1 dt. 23.12.2004 show only pain and swelling to the left wrist and left shoulder for which the opposite party doctor treated the patient as per the normal standards of medical procedures. Hence we are of the considered view that the complainant failed to establish any negligence on behalf of the opposite party and hence this appeal fails and is accordingly dismissed .

In the result this appeal fails and is accordingly dismissed. No costs.

Sd./PRESIDENT



Sd./MEMBER

DT. 22.3.2010