ORDER
S.N. Kapoor, J. (Presiding Member)
1. This appeal is directed against the order passed in Complaint Case No. 31/1997 decided on 26th December, 2001 by Bihar State Consumer Disputes Redressal Commission dismissing the complaint of Krishna Murari.
2. The case of the complainant/appellant is that while travelling in a bus he sustained injury in his left knee along with some minor injuries in other parts of body when the bus turned turtle. He was initially attended to by Dr. Satyendra Kumar Singh. His knee and back were x-rayed. He was advised to consult some expert. Accordingly, he contracted respondent/ opposite party, Dr. Md. Basheer Alam and remained under his treatment from 18th November, 1996 to 26th November, 1996. On 22nd November, 1996 his knee was operated upon by the opposite party. The patella was removed and he plastered the entire leg upto the thigh. He referred to him to a Physiotherapist. But there was no relief in bending his knee. Thereafter he consulted Dr. R.C. Ram on 28th February, 1997 who suggested that he will have to be re-operated on account of the stiffness. He again contacted opposite party, Dr. Mohd. Basheer Alam on 3.3.1997, who recommended for further physiotherapy. On 4th March, 1997 he met Dr. B. Mukhopadhyay who allegedly gave an impression that in such cases of operation plastering was unnecessarily done and patella was not required to be removed for it could be joined. On 23rd April, 1997 he went to CMC Vellore where he was admitted on 12th May, 1997 and operation was performed on 13th May, 1997. By this operation there was some improvement and the movement was upto 90% and he was given an impression that the stiffness was caused due to unnecessary plaster and there was no need to remove the patella as it could be joined. The complainant preferred complaint claiming a sum of Rs. 9 lakh.
3. The opposite party/respondent contested the matter inter alia alleging that complaint was misconceived, frivolous and prompted by greed of extracting money. The complainant alleged negligence and complained of application of old method in his treatment but did not produce any evidence in this regard. The treatment given was one of the standard methods of treatment by removing the patella in appropriate case depending upon pre-operative assessment as well as direct visual assessment of the case on operation table. Nearly all operations of Patella were followed by plaster till soft tissue healed. The final outcome of medical or surgical treatment depended upon many factors including the initial condition for which opinion or treatment was sought for and some of the results and final outcome were beyond the control of professionals. Merely because of the fact that final outcome was not ideal and to the satisfaction of the patient, it was not the proof of negligence.
4. From the pleadings of parties certain undisputed facts have emerged. The complainant sustained injuries in his left knee in a bus accident; he went to the opposite party for treatment who operated upon the knee of the complainant on 22nd November, 1996 and plastered the leg and the plaster was removed on 30th December, 1997 and was referred to Physiotherapist for doing exercises. Since the complainant felt that there was no improvement he consulted Dr. R.C. Ram, Dr. B. Mukhopadhyay and John Mukhopadhyay and ultimately went to Vellore where his left knee was re-operated resulting in some improvement. There is also no dispute over the fact that the complainant /appellant is now physically handicapped in terms of the certificates given by the Medical Board, Dhanbad and Dr. Samuel Chittaranjan, Professor and Head, Department of Orthopaedics – III, CMCH, Vellore.
5. The State Commission dismissed the complaint on the basis that no expert evidence was brought on record by the complainant to justify his claim. The prescriptions of Dr. R.C. Ram, Dr. B. Mukhopadhyay, Dr. John Mukhopadhyay and of the doctor of Vellore Hospital could not indicate anything to support the allegation of the complainant that the method of treatment applied by the opposite party/respondent Dr. Basheer Alam was old one which had been discontinued and it was not necessary to remove the patella and to plaster the leg. It had also noticed the observation made by Dr. B. Mukhopadhyay in response to letter sent by Mr. Raghib Ahsan, Advocate of the opposite party that treatment of fracture of the patella depends on the nature and severity of the injury and excision of the patella followed by application of plaster cast for six weeks was one or the accepted methods of treatment and only the Surgeon who examined the patient initially could decide whether the condition required an excision of patella followed by plaster cast application to enable the soft tissue to heal properly. Since there was complication following the operation, it would have been improper to say that Dr. B. Mukhopadhyay had in any way stated that operation performed by Dr. Alam was wrong. Further observation of Dr. B. Mukhopadhyay was that stiffness of the knee was known to be one of the complications that occasionally follow such a procedure. This falsifies the allegation of the complainant that the method followed by Dr. Basheer Alam was old and it was not necessary to remove the patella and to plaster the leg. It has further taken note of the fact that no expert was examined and dismissed the complaint.
6. The question which needs our consideration is as to whether in the circumstances of the case it could be said that Dr. Mohd. Basheer Alam was deficient in rendering service.
7. Before proceeding further, in order to properly appreciate contentions of both the parties one has to consider the legal requirement to establish medical negligence or deficiency in rendering medical services while deciding the matter whether there was deficiency in rendering service on the part of Dr. Basheer Alam.
8. In order to be sure about the deficiency in rendering medical service, this Commission referred the matter and obtained the opinion of Orthopaedic Surgeon of Lok Nayak Hospital Dr. Vinod Kumar, Associate Professor in terms of order dated 21st July, 2004. He has given the following opinion:
Briefly, as per the record available, the appellant Mr. Krishna Murari Sinha got treatment from respondent, Dr. Bashir Alam for his knee injury. Dr. Bashir Alam diagnosed him as a case of displaced transverse fracture of patella and performed a Surgery (Patellectomy) on 22.11.1996 followed by plaster application for 6 weeks. After removal of pop cast, the knee was c stiff for which the physiotherapy was advised by Dr. Alam but patieut could not get satisfactory range of movement of the affected knee joint. Later on, he got other arthroscopic surgery at Vellore and his movement . improved upto 90° flexon.
Considering the above mentioned facts, I personally feel that Dr. Alam has done the proper treatment as he performed Patellectomy which is one of the established procedures for e displaced fracture of patella and the decision of 6 weeks of plaster application is quite standard protocol after this type of surgery to give the sufficient time for healing of injured soft tissues The apprehension f of the appellant that the decision of patella removal was wrong, cannot be substantiated by any documentary proof as it depends on extent of injury like the communication present in the fracture, soft tissue injury and chondral damage, which can only be assessed accurately at the time of surgery and the decision of the operating Surgeon at that time is supreme and cannot be challenged merely by pre-operative X-ray report.
Secondly, the stiffness of the knee joint cannot be claimed as the by product of Patellectomy or plaster immobilization for 6 weeks. In my opinion, it depends more on the patient’s own effort and compliance during physiotherapy.
Dr. Alam has rightly advised physiotherapy after removal of plaster cast so he cannot be blamed if patient has not put his full efforts. The further decision of respondent to perform manipulation under anaesthesia for appellant’s stiff knee was also correct, surprisingly which was not followed by the appellant.
So in conclusion, as per my personal opinion, the treatment provided to the appellant seems to be standard treatment done for these types of fractures and the complication of post-operative stiffness cannot be attributed to the treatment provided by the respondent to the appellant for this type of fracture as the range of motion ultimately achieved, to a large extent, depends on the efforts put in by the patient during postoperative rehabilitation, which is usually guided by physiotherapist under the supervision of surgeon.
With regards.
9. Recently in Jacob Mathew v. State of Punjab III (2005) CPJ 9 (SC) : VI (2005) SLT 1 : 111 (2005) CCR 9 (SC) : (2005) 6 SCC Supreme Court apart from considering the entire conspectus of law also distinguished between civil negligence in rendering medical services and criminal negligence. Following observations in paras 48 and 49 at page 32 are notable:
48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G P Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to- the person sued. The essential components of negligence are three : “duty”, “breach” and “resulting damage”.
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings; either he was not possessed of the reguisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises, A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) the test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds good in its applicability in India.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
49. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr Suresh Gupta case and reaffirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta case We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta case (noted vide para 27 of the Report)
10. In view of the above observations, it is worthwhile to further reproduce the observations made in paras 19 and 20 of the same judgment (Jacob Mathew v. State of Punjab) which are as follows:
19. An oft-quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J in Bolam V. Friern Hospital Management Committee, WLR at p. 586 in the following words (All ER p 121 D-F)
[W]here 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. (Charlesworth and Percy, ibid., para 8.02)
20. The water of Bolam test has even since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other, and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie summarized the Bolam test in the following words: (Con LR p. 79)
From these general statements if follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.(Charlesworth & Percy, ibid., para 8.04)
(Emphasis supplied)
11. Learned Counsel has referred to certain extracts from Fifth Edition of Rockwood and Green’s, Fractures in Adults, Vol. 2 and Ninth Edition of Campbell’s on “Operative Orthopaedics”. In support of the contention that patella could be reconstructed in certain circumstances and a total Patellectomy should be performed only when it is not reconstructable. It is also apparent that one could render modified anterior tension band wiring technique for displaced transverse fractures. In young individuals with strong bone, the fracture fragments can be secured with screws, which can be incorporated into the tension band construct.
12. It was further apparent from the medical literature produced by the appellant that total Patellectomy has been recommended by several surgeons for highly displaced, highly comminuted patella fractures that are not amenable to internal fixation. Other studies demonstrate the importance of retaining even one fragment of the patella to maintain the lever arm of the extensor mechanism. Recent clinical studies demonstrate a higher rate of fair to poor outcomes with a total patellectomy when compared with earlier published series. Bostrom recommended patellectomy only in cases of severe comminuted fractures.
13. Supposing for the sake of argument it is accepted that the total Patellectomy should not have been performed but who could decide this question while performing operation. In this regard, the opinion of Dr. Vinod Kumar cannot be brushed aside for the treatment provided to complainant seems to be standard treatment done for such type of fractures and the complication of post-operative stiffness cannot be attributed to the treatment provided by the respondent to the appellant for this type of fracture as the range of motion ultimately achieved, to a large extent, depends on the efforts put in by the patient during postoperative rehabilitation, which is usually guided by Physiotherapist under the circumstances.
14. Applying Bolam test the standard under professional skill and care accepted by a doctor is that of a reasonable average professional. Tine law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. No negligence or deficiency in medical service could be attributed to Dr. Basheer Alam.
15. For the aforesaid reasons, we feel that there is no force in this appeal and it is dismissed accordingly without any order as to costs.
