By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
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2. The complainant’s case in brief is as follows:-
The complainant met with a road accident on 12.02.2014 and he was admitted in the second opposite party, hospital on the same day. On physical examination and verification of X-ray, it was found that both bones of his left thigh were fractured. So a steel rod was implanted by an operation and he was discharged on 17.04.2014 with an advice to take rest. Thereafter, the complainant used to go to the hospital for periodical checking and all those days, they used to take check X-ray. Then, the first opposite party declared that the bones of complainant were rejoined. But one year thereafter, due to the continuous pain, the complainant again contacted the first opposite party and on examination and verification of the X-ray, he affirmed that his bones were rejoined. Since the pain was increased, the complainant consulted Dr.Lokesh at Fathima Hospital, Kalpetta on 08.03.2016. Dr. Lokesh took X-ray and found that his bones were not joined. Experts have told that the mistakes committed by the first opposite party in implanting the steel rod is the reason for the non joining of the bones of the complainant. They have also told that a second operation is necessary to implant a new steel rod in order to join the bones. Therefore, there is deficiency in service on the part of the opposite parties. It caused mental, physical and
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financial difficulties to the complainant. The complainant incurred expenses of Rs.60,000/- for his treatment in second opposite party, hospital. He needs Rs.1 lakh for second surgery. Hence, this complaint to get Rs.60,000/- as the treatment expenses in second opposite party, hospital, Rs.1 lakh as the expenses for the second operation and Rs.3 lakhs as the compensation towards his physical and mental agony.
3. Originally there were only two opposite parties in this complaint. Subsequently the complainant impleaded third opposite party. The first and second opposite parties filed version together and third opposite party filed version separately. Since they took same contentions, for the sake of convenience, I have to narrate their contentions in brief as follows:-
4. The complainant was admitted in their hospital on 12.04.2014 at 9.12 pm with type III A open fracture of both his left tibia and fibula. There was smell of alcohol in his breath. As it was an open fracture with bleeding, the complainant was subjected for surgery immediately. The first and third opposite parties done the operation with the help of anesthetist Dr. Ravi Vadakedath. After the operation, when they checked X-ray, it is seen that his operation was successful.
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Therefore, he was discharged on 17.02.2014 with the advice of proper follow up and rest. Delay in union of bones is an accepted complication of a surgery especially in an open fracture. Union of bones depends on various factors. It depends upon the general health of the patient, care taken by the patient after the operation. There was no negligence from the opposite parties in the treatment of the complainant. The delay in union of bones can be corrected with bone grafting. They denied that there is deficiency in service upon the opposite parties. They also denied that the non-union of the bones of the complainant is due to the negligent treatment of the opposite parties. The complaint is baseless, frivolous and vexatious and liable to be dismissed. A medical practitioner would be liable only when his conduct fell below the standards of a reasonably competent doctor. They denied that the complainant continued his treatment and still he suffers a lot due to the negligent treatment of opposite parties. While under the treatment of the second opposite party, hospital, the complainant was provided with standard treatment by competent doctors. So there was no negligence and deficiency in service from the part of the opposite parties. Hence this complaint is to be dismissed with compensatory cost of opposite parties.
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5. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency in service on the part of opposite
parties. If so, whether the complainant is entitled to get anything
as claimed?
2. Reliefs and Cost.
6. The evidence in this case consists of oral testimonies of PW1, PW2, OPW1 to OPW3, Ext. A1 to A5 and Ext.X1. Heard both sides.
7. Point No.1:- The complainant alleged medical negligence upon opposite parties. It is an admitted fact that the complainant met with an accident and was treated in second opposite party, hospital and discharged after an operation. It is also an admitted fact that both tibia and fibula of left leg of the complainant were fractured in this accident and during the operation, the first opposite party implanted a steel rod to facilitate the reunion of the bones. The complainant alleged deficiency in service on opposite parties. According to him, his bones were not joined even if, he waited for one year and so he was forced to consult other doctors. The complainant found a mistake in implanting the steel rod by the first opposite party as a reason for the non union of his bones. On the other
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hand, opposite parties denied the allegation of deficiency in their service. According to them, non-union of bones is an accepted complication of surgery especially in open fracture and it depends on various factors such as general health of the patient and care taken by the patient during the healing period.
8. To prove the case of complainant, he has given evidence as PW1. He has also examined PW2, a Doctor from Orthopedic Department of Medical College Hospital, Kozhikode. To prove the case of the opposite parties, the first opposite party has given evidence as OPW1 and the third opposite party has given evidence as OPW2. They have examined one of the Doctors of Medical Board.
9. The counsel for the complainant contented that since there was deficiency in service and negligence from the opposite parties, the complainant suffered a lot due to non-joining of his bones. As I already stated, the complainant met with an accident and due to the fracture on both tibia and fibula of his left leg, he was undergone with an operation in the second opposite party, hospital. According to the complainant, there was assurance from the first opposite party that his bones were joined. He alleged that even then, he suffered
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pain for more than one year and so when he consulted Dr. Lokesh at Fatima Hospital, Kalpetta, it was found that his bones were not joined. Ext.A1 is the Discharge Summary of complainant received from second opposite party hospital. Ext.A2 series are the Medical Bills and Ext.A3 series are the prescriptions of second opposite party, hospital. Ext.A4 series are the X-rays and Ext.A5 is a Discharge Card issued from Medical College Hospital, Calicut. Ext.X1 is the report of the Medical Board. The evidence of PW1, Ext.A1 to A5 and X1 would clearly established that the complainant got a fracture on both tibia and fibula of his left leg and an iron rod was implanted by the first opposite party to join the bones. It is also established that due to non-reunion, the complainant was treated by Dr. Lokesh and other doctors attached to Medical College Hospital, Calicut. It is an admitted fact that during the pendency of this case he was undergone with a second operation at Medical College Hospital, Calicut. The evidence of opposite parties also supported the cases of the complainant with regard to the fracture and operation done in the second opposite party, hospital.
10. So, here, the question is whether there is any deficiency in service on opposite parties for non-joining of the bones of the complainant and whether he
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continued his treatment through another doctors to reunite his bones. The specific allegation of the complainant is that test x-rays were taken in second opposite party hospital after the operation and even then he was informed by the first opposite party, doctor that his bones were rejoined. For more clarification, I shall quote the allegation of the complainant seen in his complaint. It is as follows: 1þmw FXnÀI£n \nÀt±in¨ XobXnIfnsÃmw ]cmXn¡mc³ 2þmw FXnÀI£n Øm]\¯n sN¶ncp¶Xpw At¶ Znhk§fnseÃmw Xs¶ Check X-ray 1þmw FXnÀI£n FSp¸n¨ncp¶Xpw Check X-ray t\m¡n Imensâ FÃpIÄ bYmhn[n tbmPn¨n«ps¶v 1þmw FXnÀI£n ]cmXn¡mct\mSv ]dªncp¶XpamWv. So, the specific allegation of the complainant is that he was informed by the first opposite party that his bones were rejoined. It is evident that the bones of the complainant was not rejoined and subsequently a second operation was done in Medical College Hospital, Calicut. As I already stated, according to the complainant, first opposite party told during his follow up treatment in second opposite party hospital that his bones were rejoined. So it can be seen that the main allegation of the complainant against the opposite parties is that even though he was informed by the first opposite party that his bones were rejoined, actually his bones were not rejoined due to the mistake in
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implanting the rod. But, when I verified the documents produced from the side of complainant, it can be seen that the allegation of the complainant with regard to the negligence on the part of the opposite parties is false. Ext.A3 series are the prescriptions issued from the second opposite party hospital. In Ext.A3(4) and Ext.A3(7), it is noted that the bones of the complainant were not rejoined and he was treated there for delayed reunion. Therefore from Ext.A3(4) and Ext.A3(7) it can be seen that the first opposite party has noted that the bones of the complainant were not rejoined. Since the documents of the complainant themselves would go to show that his bones were not rejoined, the case of the complainant that he was informed by the first opposite party that his bones were joined is false.
11. The complainant alleged that there was negligence from the first opposite party in implanting the rod. But, here, absolutely there is no evidence to prove that there was negligence from the first opposite party in implanting the rod. The complainant has examined PW2. He is the chief of Orthopedic Department of Medical College Hospital, Kozhikode. The opposite parties have examined OPW3 who is one of the doctors of Medical Board. Neither PW2 nor
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OPW3 deposed that there is negligence from the first opposite party in implanting the rod. They both admitted that non union is a complication of this type of surgery. As I already stated, the specific case of the opposite parties is that there are various reasons for non union of bones. PW2 deposed that there is chances of non union in 10% cases. He further deposed that lack of proper care may be one of the reasons for non-joining of bones. According to opposite parties also, non-union of bones is an accepted complication of surgery especially in open fracture and it depends on various factors such as general health of the patient and care taken by the patient during the healing period. The evidence of PW2 supported this stand of opposite parties. No other expert evidence from the complainant to disprove this aspect.
12. Though the complainant’s case is that first he consulted Dr.Lokesh of Fatima Hospital, Kalpetta, he has not produced any of his prescriptions and he has not examined him to prove that the non reunion is due to the negligence from the part of the first opposite party, doctor. Therefore, here absolutely nothing to prove that there is deficiency in service on the part of the opposite parties in
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treating the complainant. So complainant is miserably failed to establish that there is deficiency in service on the part of the opposite parties in his treatment.
13. Point No.2:- Since, I found point No.1 against the complainant, the complainant is not entitled to get any relief.
In the result the complaint is dismissed without costs.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 18th day of March 2020.
Date of Filing: 09.06.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Jaison. Agriculture.
PW2. Dr. Jacob Mathew. Doctor.
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Witness for the Opposite Parties:-
OPW1. Dr. T. P. V. Surendran. Medical Director, Leo Hospital,Kalpetta.
OPW2. Dr. Sasidhar. M. Orthopedic Surgeon.
OPW3. Dr. K. Suresh. Consultant In Orthopedic, District
Hospital, Mananthavady.
Exhibits for the complainant:
A1. Discharge Summary.
A2(1). OP Visit Receipt. Dt:12.04.2014.
A2(2). Medicine Sale Bill. Dt:13.04.2014.
A2(3). Medicine Sale Bill. Dt:13.04.2014.
A2(4). Medicine Sale Bill. Dt:13.04.2014.
A2(5). Medicine Sale Bill. Dt:13.04.2014.
A2(6). Medicine Sale Bill. Dt:14.04.2014.
A2(7). Medicine Sale Bill. Dt:14.04.2014.
A2(8). Medicine Sale Bill. Dt:15.04.2014.
A2(9). Discharge Bill. Dt:14.04.2014.
A2(10). Discharge Bill. Dt:15.04.2014.
A2(11). Discharge Bill. Dt:16.04.2014.
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A2(12). Discharge Bill. Dt:17.04.2014.
A3(1). Prescription. Dt:06.05.2014.
A3(2). Prescription. Dt:23.06.2014.
A3(3). Prescription. Dt:14.07.2014.
A3(4). Prescription. Dt:05.08.2014.
A3(5). Prescription. Dt:13.10.2014.
A3(6). Prescription. Dt:07.01.2015.
A3(7). Prescription. Dt:29.04.2015.
A3(8). Prescription. Dt:21.11.2015.
A5. Discharge Card.
X1. Medical Certificate. Dt:28.03.2017.
Exhibits for the opposite parties:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
