LexDR. C.P. SREEKUMAR, M.S. (ORTHO) versus S. RAMANUJAM
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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(2009] 7 S.C.R. 272
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A
DR. C.P. SREEKUMAR, M.S. (ORTHO)
......
V.
S. RAMANUJAM
Civil Appeal No. 6168 of 2008
B
MAY 1, 2009
(DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ)
Compensation - Award of by National Consumer ' ....
Disputes Redressal Commission -
On appeal, HELD:
Treating doctor was not at fault- He has also consulted experts
\
c in the field - Whether the doctor was remiss in choosing a
psrticular procedure - Preference of procedure - Relevant
factors - Discussed - No professional negligence could be
attributed to the Doctor - Medical negligence - Consumer
Protection Act, 1986. ·
D
The two appeals have challenged the order of the
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National Consumer Disputes Redressal Commission
awarding certain compensation against a Doctor to the
respondent-patient.
E
Dismissing the appeal, the Court
HELD: 1. The appellant deposed that he was an
M.8.8.S. from the Tanjore Medical College and had
thereafter done his Masters in General Surgical Science
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F
from the University of Madras in the year 1983 and his
Masters in Orthopaedic Sciences from the University of
London in the year 1985 and that on the day of the
operation he had about 15 years of experience in the field
of Orthopaedics. This Court has also gone through the
very lengthy cross-examination of the appellant spread
G (intermittently) over several days and find not the slightest
suggestion that the appellant was unable to perform an
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internal fixation. The bald statement of the respondent (in
the course of his arguments and in his written sub-
H
272
DR. C.P. SREEKUMAR, M.S. (ORTHO) V.
273
S. RAMANUJAM
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missions) with respect to the lack of expertise iri A
performing the internal fixation procedure on which the
appellant had chosen to go in for hemiarthroplasty, cannot
thus, be accepted. [para 15] [287-D-G]
Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 B
and State of Punjab vs. Shiv Ram & Ors. (2005) 7 SCC 1 -
relied on.
_J
Samira Kohli vs. Or. Prabha Manchanda & Anr. (2008) 2
sec 1 - referred to.
Bo/am vs. Friern Hospital Management Committee c
(1957) 2 All ER 118 (QBD) - referred to.
2. It is the case of the respondent that when he was
taken for an X-ray on 8th January 1992 it was found that
...
the simple Garden I type fracture had developed into a D
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complicated Garden Ill type fracture, and that this
happened on account of rough handling by Elango and
the other attendants who were mere labourers whereas it
is the case of the appellant that this had occurred due to
a muscular spasm. It is found from a reading of the order E
of the Commission that it proceeded on the basis that
whatever had been alleged in the complaint by the
respondent was in fact the inviolable truth even though it
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remained unsupported by any evidence. The onus to
prove medical negligence lies largely on the claimant and
F
that this onus can be discharged by leading cogent
evidence. A mere averment in a complaint which is denied
by the other side can, by no stretch of imagination, be
said to be evidence by which the case of the complainant
can be said to be proved. It is the obligation of the
complainant to provide the facta probanda as well as the G
facta probantia. {para 16] [287-H; 288-A-D]
' 3. The Commission has relied on the cross-
examination of the appellant with regard to the speculation
about the defective lift as being the reason for the shift of H
274
SUPREME COURT REPORTS
[2009] 7 S.C.R.
A the respondent on a stretcher to the X-ray room. This is
.....
on the face of it misplaced, as no inference can flow that
the displacement had occurred on account of rough
handling by the staff. The appellant, on the contrary, in
the course of his evidence, pointed out that as the
B respondent's smoking over a period of 15 years had
resulted in chronic bronchitis, that he was obese and had
taken hormonal treatment for sterility and in this context
re-emphasized that the displacement had occurred due
" ...
to a strong muscular spasm. When cross-examined, he
c pointed out that in order to immobilize the leg he had used
de-rotation boots which extend below the navel and to
the injured leg to half of the uninjured leg and that such a
cast would normally immobilize the hip by 75% but
notwithstanding this fact a muscular spasm could still
D happen. It will be seen from the cross-examination that
there was no suggestion whatsoever that a simple hairline
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