Judgment:
Ashok Parihar, President:
1. Both the appeals are directed against order dated 16.3.2006 passed by the District Forum, Jaipur II by which while allowing the claim of the complainant in case of medical negligence, the hospital and the concerned doctor have been directed to pay a sum of Rs. 57,542 for the medicines and Rs. 75,000 plus Rs. 2,000 for mental agony and other expenses.
2. It has been alleged by the complainant that he was admitted in Santokba Durlabhji Memorial Hospital, Jaipur on 19.3.1998 complaining pain in right leg/hip and was under treatment of Dr. Shailendra Srivastava working in the hospital. The concerned doctor diagnosed him as suffering from Pyogenic Septic and treatment was given accordingly. The complainant was discharged from Santokba Durlabhji Memorial Hospital, Jaipur on 2.5.1998.
3. Not getting the proper relief the complainant consulted Dr. C.S. Sharma of SMS Hospital, Jaipur on 9.12.1998 and after various investigations, x-rays and blood tests the complainant was diagnosed as suffering from Osteo Tuberculosis and not Pyogenic Septic. Treatment was given accordingly by Dr. C.S. Sharma. Though the complainant got relief, however, the same resulted in 40% disability because of proper treatment not given in Santokba Durlabhji Memorial Hospital, Jaipur. Thus, a complaint was filed before the District Forum claiming compensation of Rs. 7,32,541 from the appellant hospital and the concerned doctor.
4. The complainant in support of his claim submitted his own affidavit along with various test reports and the medical bills. The certificate of Dr. C.S. Sharma supported by his own affidavit as also disability certificate given by the medical board of the SMS Hospital. Jaipur have also been submitted. On behalf of appellant hospital affidavit of incharge of the hospital as also Dr. Shailendra Srivastava have been filed.
5. The learned Counsel for the appellant hospital while relying on judgment of National Consumer Commission in a case of Prabha Shankar Ojha v. Neelmani Rai (Dr.), reported in I (2010) CPJ 62 (NC), submitted that in case if any treatment prescribed by some one else of better skill and knowledge, mere difference of opinion in adopting line of treatment does not amount to medical negligence. As such prayed for setting aside the impugned order passed by the District Forum. On the other hand the learned Counsel for the complainant submitted that as per the material available on record there is enough proof of medical negligence on the part of the appellant hospital and the concerned doctor in not giving proper treatment which resulted in 40% disability in the complainant. The complainant should have been granted the entire compensation as claimed in his complaint.
6. Having considered the submissions of the learned Counsel for the parties, we have carefully gone through the material on record.
7. The appellant hospital and the concerned doctor had diagnosed the complainant as suffering from Pyogenic Septic and treatment was given accordingly. In reply to the complaint before the District Forum, the appellant hospital has asserted that after recovery of hemoglobin of the complainant surgery was conducted on 20.4.1998 for exploring the joint and also the biposy. On surgical exploration there was pus in the joint cavity that was removed and sent for examination and bacterial culture, the head of femur in the joint was found to be necrosed (diseased and damaged) and covered by infected granulation tissue, this was excised and the pieces were sent for histopathological examination and diagnosis. The capsule of the joint and synovium was thickened and a biopsy piece from the same was also sent for examination. Thus three tissues viz. Synovium, pus and granulation from head were sent for histopathological diagnosis. As per biopsy report there was âNo evidence of Tuberculosisâ chronic non-specific synovitis was found but no evidence of Tuberculosis was seen. In the pus culture no micro organism was found and further no AFB (Acid Fast Bacilli i.e. T.B. Germs) were detected. Thus, chronic synovitis, no evidence of Tuberculosis, no growth of micro organism on pus culture and no AFB (Acid Fast Bacilli i.e. T.B. Germs) supported the clinical diagnosis of septic arthritis.
8. However, in support of above contention, no document especially the biopsy report has been submitted by the appellant hospital. On the other hand Dr. C.S. Sharma from the SMS Hospital, Jaipur in his affidavit while proving his treatment certificate has asserted that the complainant was suffering from Ostio Tuberculosis and not Pyogenic Septic. The contention of Dr. C.S. Sharma is further supported by the disability certificate given by the medical board of the SMS Medical College who opined that the complainant had suffered 40% disability due to Osteoarthritcal Tuberculosis of right hip. Thus, the contention of the appellant hospital that as per their biopsy report there was no evidence of Tuberculosis, however, as already been referred above no biopsy report as alleged by the appellant hospital has been submitted so far. Thus, having considered entire facts and circumstances it can safely be inferred that there has been clear medical negligence and casualness in not diagnosing the disease properly in the appellant hospital. If the proper treatment could have been given after correct diagnosis at the initial stage, the complainant would not have suffered that much disability. The last certificate given by Dr. C.S. Sharma was dated 29.1.2001 and the disability certificate had also been issued by the medical board of the SMS Hospital, Jaipur on 15.1.2001 have not been rebutted or contradicted by the appellant hospital. A bare reading of the pleadings of the parties and documents placed on record, the medical negligence as also misrepresentation and concealment of material documents is amply proved so far as appellant hospital as also concerned doctor in the present case.
9. Initially the complaint was filed before this Commission, However, vide order dated 28.6.2005 in view of amendment made in Section 11 of the Act of 1986, the complaint was sent to District Forum, Jaipur II for adjudication in accordance with law. More than a decade has lapsed. The complainant was of the age of 25 years when first admitted in the appellant hospital. At this prime age he had to suffer 40% disability causing great mental agony and loss in future income prospects. Though the same cannot be assessed in terms of money, in our opinion and also in the interest of justice the complainant is entitled for adequate compensation.
10. Accordingly, the impugned order dated 16.3.2006 passed by the District Forum is modified to the extent that apart from getting Rs. 57,542 for medicines, the complainant shall also be entitled for Rs. 3 lacs for compensation, mental agony and other expenses with interest @ 9% p.a. from the date of filing the complaint. Both the above appeals are disposed of accordingly. There will be no order as to costs. The complainant shall be entitled for withdrawing the amount deposited by the appellant hospital if any, before the District Forum and remaining compliance be made by the appellant hospital within 30 days.