No cure of fracture not Negligence: NCDRC relief to govt hospital, doctor

New Delhi: Holding that "No cure shall not be construed as Negligence", the National Consumer Disputes Redressal Commission (NCDRC) absolved a Darjeeling based Government Hospital and its doctor from charges of medical negligence while treating the patient suffering from a fractured leg.

Although the patient had alleged that his leg shortened due to the negligent treatment given by the doctor and the hospital, the NCDRC bench perused the medical record and observed, "I do not find any negligence during treatment of fractured right leg of patient. The patient was operated as per standard of practice. Unfortunately, he suffered non-union...The disability 1 ½' was a sequel of the non-union, but it was neither due to negligence or deficiency in the treatment."

Therefore, the bench set aside the order passed by the State Commission, which had directed the doctor and the hospital to pay altogether Rs 4,50,000 as compensation to the patient.

The matter concerns the alleged shortening of leg due to medical negligence after the treatment of fracture of the patient's leg. It was submitted that the complainant had suffered "Fracture Lower 3rd Tibia and Upper 3rd Fibula" of right leg and after that he approached the B.S.F. Composite Hospital in Darjeeling, West Bengal. After examination a plaster was applied and medicine prescribed by Dr. Choudhary. 

After four months, the plaster was opened, but the alleged complications of shortening of leg developed. Therefore, plaster was reapplied to no avail since the fractured leg failed to recover as normal. Although the doctor carried out surgery, the patient's leg became shorter by 1.5 cm. Being aggrieved by the alleged wrong treatment, the Complainant approached the District Forum, Siliguri and the Forum noted that the treating hospital was a Government facility and the patient was a constable, who did not pay any money except for the registration fee. 

Therefore, in the basis of the Principles laid down in Indian Medical Association Vs. V.P Shantha & Ors, the District Forum held that there was no deficiency of service or negligence from the doctor and the hospital and dismissed the complaint accordingly.

When the complainant approached the State Commission, the Consumer Court allowed the appeal and directed the doctor to pay Rs 3 lakh as compensation and the Hospital to pay Rs 1,50,000 as compensation. However, even the state commission had held that there was no evidence on record supporting the deficiency in service on behalf of the treating hospital and doctor. Thereafter, the doctor and the hospital approached the NCDRC bench and filed a revision.

It was argued by the complainant's counsel that due to wrong treatment and wrong surgery, the fractured leg of the patient became short by 1.5 cm. The hospital was also vicariously liable for its failure to ensure proper and reasonable care and treatment done by the doctor, argued the complainant's counsel. 

The counsel for the complainant relief upon the decision of the Supreme Court in the case of Paschim Banga Khet Mazdoorsamity & Ors. vs. State of West Bengal & Anr, where it had been held that failure of Government Hospital for providing proper treatment to a person violated the Right to Life under Article 21 of the Constitution of India. 

On the other hand, the doctor narrated the chronology of treatment provided to the patient for the fracture and submitted that the hospital and the doctor had provided the best possible treatment to the patient with due care attention. If any disability was suffered by the patient, the authority should give proper and adequate help for his disability as per handicaps, argued the doctor.

Taking note of the arguments, the top consumer court also perused the medical record to understand the nature of fracture injuries and the method of treatment adopted at BSF Hospital. The bench noted that the patient Sukhi Ram had suffered segmental fracture of upper third Fibula. Initially the plaster was applied and thereafter on examination due to vascular compromise the doctors explained about the prognosis. He was operated on after taking informed consent on emergency. The patient was under follow up and the quality of fracture was also assessed. Finally, it was found that the delayed union at one fracture site of lower tibia was found while the other fracture site of lower Tibia was united well. Below knee B.K. cast was given again to facilitate union and consequently, the Bone graft was put around the delayed union site of Right lower libia taken from patients right iliac crest followed by above knee slab under spinal anesthesia.

Orthopaedic surgeons of the hospital removed the stitches and revealed some pus and blood that oozed out. It was sent for culture and sensitivity and accordingly treated and after this, regular dressing was done by the Orthopaedic surgeon of the Hospital.

The bench also noted that repeat pus culture and senility done found to be sensitive to certain antibiotics and started antibiotic combination according to reports. Since the patient refused foe skin grafting, it delayed the wound healing.

At this outset, the bench observed,

"Thus in my view the treating doctor acted as per the reasonable standards. The non-healing or mal-union of fractures is a known complication due to post-operative infections. The patient was investigated and treated with appropriate higher antibiotics. Thus " No cure shall not be construed as Negligence"."

Apart from this, the NCDRC bench further noted that there was no Jurisdiction as the BSF Hospital was a Government Hospital under the Ministry of Defense and the services were free. Only payment of registration charges cannot be said to be Consideration Paid by the patient (consumer). In this regard, the top consumer court referred to the Principles laid down by the Apex Court in the case of V.P. Shantha's case and also in the recent judgment in Nivedita Singh vs. Dr. Asha Bharti & Ors.

Referring to the Apex Court orders, the bench gave clean chit to the doctor and the hospital and noted,

"Based on the discussion above, I do not find any negligence during treatment of fractured right leg of patient. The patient was operated as per standard of practice. Unfortunately, he suffered non-union, therefore the OP-5 performed bone grafting as a standard procedure. Further based on culture and sensitivity tests proper antibiotics were given and regular dressing was performed. The disability 1 ½' was a sequel of the non-union, but it was neither due to negligence or deficiency in the treatment."

"The Order of the State Commission is hereby set aside and the Order of the District Forum is upheld," read the order.

To view the judgment, click on the link below.

https://medicaldialogues.in/pdf_upload/ncdrc-order-negligence-187554.pdf

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