K. Mahendran

S/o. K. Kannan

14, Lakshmi Koil Street,

Naickanoor,No.4, Veerapandi

Coimbatore. --- Complainant

Vs.

Dr. V.Srinivasan,

Owner, Nivrithi Hospital

Opp. Immaculate School

Veerapandi Pirivu,

Press Colony Po, Coimbatore. --- Opposite Party



ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay the complainant Rs.5,00,000/- towards compensation for permanent disability, mental agony and sufferings and earnings and towards cost of the proceedings.

The averments in the complaint are as follows:

1. The Complainant is a tailor by profession, on 2.07.2006 the complainant had met with an accident and sustained injuries was brought to the Nivrithi Hospital at Veerapandi Pririvu and thereby he was admitted as an inpatient. He was diagnosed by the Nivrithi Hospital Doctors that there was a fracture in right Libia Upper 1/3 and D.M. thereby the complainant was advised to go for a surgery. A surgery was performed and thereby screw fixation was done. The complainant was at Nivrithi Hospital for about 10 days. On 12.07.2006 the complainant was discharged from the Hospital at the time of his discharge the doctors have advised the complainant to take Diabetic Diet plus few drugs and asked the complainant to come after 3 weeks for review.

2. The complainant had developed pain and his condition was further more detoriated. The complainant was not able to move at all, subsequently the complainant had gone to Rex Ortho Hospital at Coimbatore, wherein the complainant was advised to go for another surgery immediately. The reason for another surgery was that he ought to have been operated for CMR and ‘K’ wire fixation but not screw fixation. The complainant was admitted on 19/08/2006 and the surgery was done on the same day itself. The complainant was discharged on 22/08/2006 from the Rex Ortho Hospital, Coimbatore. Due to wrong diagnosis and gross negligence of the Nivrithi Hospital doctors screw fixation surgery was performed to the complainant. Owing to the said disability the complainant is not able to continue his profession. The complainant has issued a legal notice through his advocate to the opposite party on 30/11/2006. The same was acknowledged by the opposite party on 9/12/2006.

3. In the reply the opposite party had blamed the orthopedic surgeon for the wrong diagnosis and the negligence in performing the said screw fixation surgery and denied the liability. The opposite party had sent another reply through their advocate the same was received by the complainant on 26/12/2006 in which the hospital authority had denied the entire liability but to certain extent agreed to pay the compensation. Hence this complaint.

The averments in the Opposite parties are as follows:

4. The complaint is false, frivolous, vexatious and not maintainable under law and on the fact of the case. This opposite party after careful diagnosed as a case of fracture in upper 1/3rd of Right tibia and Diabetes Mellitus. The complainant was suggested surgery by Orthopeadician by name Dr.D.Balachandar, M.S.(Ortho) duly and diligently as per norms of surgery wherein Screws were fixed as per procedure with the consent and concurrence of the complainant. The Doctor has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in particular art. The said operation and fixing of screws were done by the Ortho Specialist Dr.D.Balachandar with due care and due diagnose.

5. He was asked to come for review after 3 weeks when the above knee cast was trimmed to below knowledge of the opposite party that the complainant was not continuing any of the advice given at discharge regarding walking and physiotherapy. The complainant did not turn up for any more reviews as suggested by the orthopaedician and lost all touch with the complainant since the first review. There is no nexes between the surgery done in the hospital of this opposite party and the one alleged to have been done upon the complainant is Rex Hospital.

6. The complainant is bound to prove his allegations as per law and procedure. Hence, the allegation that the complainant was advised to go for another surgery is denied as false and baseless. The alleged permanent disablement and that due to the same he is not doing his profession etc., are denied as untrue and not admitted by this opposite party. The complainant has no cause of action to file this complainant against this opposite party. He has not impleaded the necessary party namely the Ortho Specialist Dr.D.Balachandar. His intention is to defame the reputation of this opposite party’s hospital.

7. The complainant has filed Proof Affidavit along with Ex.A1 to A9 was marked on the side of the complainant and Ex.B1 to B11 was marked on the side of the opposite party . The Authorities filed by the complainant:

1. C.P.J. III 2005 Page No. 10 & 11 2. C.P.J IV 2006 Page No. 105 to 110

3. C.P.J IV 2006 Page No. 365 to 375.

The Authorities filed by the opposite parties:

1. 2009 (2) CTJ (252) 2. 2008(1) CPR 380(NC)







The point for consideration is

Whether the opposite party has committed deficiency in service? If so to what relief the complainant is entitled to?

ISSUE 1

8.The case of the complainant is that he is a Tailor by professor, met with an accident on 2.07.06 and sustained injuries, brought to the Nivrithi Hospital for treatment a surgery for screw fixation was done. After discharge the complainant developed pain and his condition was further more detoriated, he had gone to Rex Hospital at Coimbatore. He was advised to go for another surgery immediately. The reason for another surgery was that he ought to have been operated for CMR and K wire fixation but not screw fixation. It is because of the wrong diagnosis and gross negligence of the opposite party the proper surgery was not performed at the first instance. Hence this complaint.

9. The Case of the Opposite party is after careful diagnosed for the fracture of the complainant. Opposite party’s specialist in Ortho Doctor Dr.D.Balachandar diagnosed the same as a case of fracture in upper 1/3 Right Tibia and Diabetes Mellitus. After careful and carried diagnose only the complainant was suggested a surgery.

10. The case of the complainant as seen in the complaint and his proof affidavit is that the opposite party has wrongly diagnosed and nothing more. The opposite party in his counter statement stated that the fracture in the right leg Tibia has been first diagnosed correctly and necessary surgery has been done with the consent the concurrence of the complainant. As per his discharge summary during the 10 days treatment, suitable medicines have been given and physiotherapy had been done as per procedure. In fact, the complainant had left the hospital without pain.

11. The careful reading of the documents (Ex.B1 to B3) filed by the opposite parties would clearly go to show that there were no negligence on the part of the opposite parties during diagnosis and after the surgery. The physician order sheet (Ex.B2) starting from admission to discharge would go to show that there was no negligence on the pat of the opposite party. No contra evidence let in. The CW2, during the cross (Question No.4) has given answer as that screw fixation involves no negligence. He also has given his opinion (question No.2 in cross) screw fixing is an accepted form of procedure. He also states that the procedure adopted by the opposite party’s hospital was not at wrong.

12. The causes for ‘backing out’ has been stated by CW2 in cross (question No.8) as because of poor quality of bone, early weight bearing on the leg, collapse of bone. He also stated that walking without walker would also cause backing out. For a specific question that is question No.11 he has given a opinion in favour of the opposite party. The question and answer is given below:

Q. 11. Whether the first surgery done in the opposite party’s hospital is at negligence - No

13. Hence the expect opinion is in favour of the opposite party and not in favour of the complainant. As decided in 2009 CTJ 352 (SC) (CP) and 2009 (2) (CTC) page no.252. It is settled law that expert evidence absolutely necessary to prove medical negligence. The present case the expect opinion is not in favour of the complainant but in favour of the opposite party. In the present case the complainant has not produced any oral or documentary independence expert evidence in support of his allegations.

Another ruling cited by the complainant is also in favour of the complainant i.e. 2008 (1) CPR Page No. 280 (NC) : “For reasons unconnected with the method of surgery the screws fixed backed out or got dislodged which itself cannot be construed as a negligence of the Doctor.

14. From the documentary evidence and the evidence of CW-2 Dr.Rex and OPW2 Dr.,Balachandar it is evident that there was no negligence or misconduct on the part of the opposite party. The opposite party rightly diagnosed and adopted a procedure which is acceptable to medical profession. Hence we are of the view that the complainant has not the established that the opposite party is at negligence.



In the result, the complaint dismissed with out cost.