SMT. RAVI SUSHA: PRESIDENT

This complaint is filed U/s 35 of Consumer Protection Act 2019, claiming Rs.1,50,000/- towards treatment expense, Rs.50,000/- towards expense for taking car in rent and Rs.1,50,000/- towards monetary loss alleging medical negligence on the part of opposite party 1 and 2.

            The facts of the complainant are that the complainant is the husband of the injured.  Brief facts of the complainant are that the complainant’s wife fell down at her residence on 03/02/2020 and suffered injury on his left hand.  She was brought to the OP2 hospital namely Nikil hospital of OP No.1 doctor, who after examination and taking X-ray, told that  she suffered comminuted fracture on the left and applied plaster of paris and prescribed medicine and returned the home on the same day itself.  After two days on 08/02/2020 complainant again went to OP1 doctor due to pain at the fractured site. Then OP1 had taken X-ray and assured no complaint and prescribed medicine.  But on 28^th the pain increased and the movement of the hand was almost lost.  Then OP1 took X-ray and told that further treatment at OP2 hospital is not able and asked to arrange another hospital in Kannur for higher treatment.

            Further complainant took his wife to Govt. hospital Kannur on 02/03/2020 and conducted surgery on the injured hand.   Further due to restriction of covid pandemic, she has taken to another hospital namely Syrus Sky Super Specialty Hospital for further treatment. Further though physiotherapy was taken for three month, the hand of his wife had not regained the original condition.  Complainant alleged that due to the negligent act of  OP 1, the complainant and his wife injured suffered lot and caused monetary loss happened.  Complainant further alleged that OP1 failed to take care and skill in treating the complainant’s wife and he was negligent and deficient in rendering services and there was unfair trade practice on his part.  Hence this complaint.

            The OPs filed written version resisting the complaint.  OP1 filed version stating that OP1 is an orthopaedic surgeon and he has examined the injured on 03/02/2020.  After seeing the patient this OP suggested that there is a fracture on the left hand and advised the injured and bystander that surgery is necessary and the hospital where in this OP works has no facility to do the surgery and they have to go to another hospital where in surgery can be done.  Moreover the injured being an aged person for the re-union of the bones will take time.  But the injured and the bystander was not agreed for surgery and they told this OP that the injured is not willing for operation because she has other diseases also.  So they compelled the OP to put plaster instead of going to a higher centre for operation.  So this OP laid POP and advised to injured to take 3 months complete rest even without moving the left hand and not to do any work and to come for review after one month.  But after that on 08/02/2020 injured again came to this OP and told that she had pan on the injured hand.  So this OPO examined the injured and taken another X-ray.  But there was no unusual things noted.  So the injured was advised to take full rest without moving the hand.  After that on 29/02/2020 injured came for review and after taking X-ray, it was found that the position of bone was changed.  On enquiry it was revealed that she has done house hold works during the treatment period.  Lack of proper care and attention was admitted by them.  Since the position of bone was changed from the original position, this OP has no other option but to advice the injured to a higher centre at the earliest for operation.  As a specialist doctor, after convinced the injured the seriousness of the injury, advised them to go another facilitated hospital for operation. It is not a negligence or fault on the side of this OP.  Timely referrals to the higher centre without unnecessary delay is a usual procedure.  So there is no negligence or carelessness on the part of this OP.  This OP acted as a prudent orthopaedic surgeon with utmost care and caution.

            OP No.2 filed version stating that this OP is unnecessary party in the above proceedings.  The 1^st OP doctor examined the injured and advised her that operation is the best and for that, approach another hospital having more facility.  But the injured and the complainant was not willing for operation.  Moreover, they strongly insisted the doctor to put POP casting. Even after that they have not taken rest as per the advice of the doctor.  So she was constrained to do same house hold works.  That caused to change the position of bone which was fractured.  Operation was necessitated only due to carelessness of the injured.  Further submitted that  if the tribunal finds that this OP is liable to compensate the petitioner, it is submitted that the United Insurance company Ltd. Caltex, Chovva Branch is liable to pay the same sine OP No.2 has valid insurance policy with that company. Policy No.3002022619P103012051, during the relevant period.  There is no negligence on the part of this OP or 1^st OP and the complainant has to be dismissed.

            OP3 is Insurance company filed separate version submitting that OP 3 contended that OP1 had taken Insurance policy professional Indemnity doctors hospital policy having NO.3002022719P112755172 and the indemnity cover as Rs.2,00,000/-.  The other contention of OP3 is more or less same as the contentions of OP1 and prayed for the dismissal of complaint.

            The complainant filed his affidavit evidence reiterating the facts stated in the complaint and relied on Ext.A1 to A12.  One witness Dr. Inas Ismail, who treated the wife of the complainant at Syrus Sky Super Specialty Hospital, has been examined as Pw2 from the side of complainant.  OP1 doctor filed his affidavit evidence and relied on Ext.B1 to B3.

            There is no dispute that the complainant Mr. Joseph Kanhirathan kunnel is the husband of the injured in this case, Mrs. Rosamma and Mrs. Rosamma visited OP No.1 the orthopaedic surgeon at OP No.2 hospital on 03/02/2020 with a complaint of a fracture on the left hand and OP NO.1 examined the patient and took X-ray of the fractured portion and applied plaster of paris on the left hand of the patient.

            Complainant submitted that after two days on 08/02/2020 injured came to OP No.1 with complaint of pain.  Then OP1 after taking X-ray informed that no complaint noted and prescribed medicines.  But on 29/02/2020 injured approached OP1 with severe pain.  Then after taking X-ray, OP1 instructed to go to another hospital for further treatment.  It is also contended by the complainant that on 02/03/2020 injured went to Kannur Govt. Hospital for further treatment and after examination by the doctor at Kannur Hospital, conducted surgery on the left hand of the injured.  After that physiotherapy was taken for 3 months but the movements of the hands not regained and it is due to the negligence and deficiency in service on the part of the OP NO.1 and in such circumstances complainant claimed compensation. 

            On the other hand it is the specific defense of the OP that on 03/02/2020 after seeing the patient and fracture, OP 1 advised the injured and by stander that surgery is necessary and the OP2 hospital has no facility to do the surgery and they have to go to another hospital where in surgery can be done.  But the injured and bystander was not agreed for surgery and they compelled to put plaster instead of going to a higher centre for operation.  So POP was laid on the left hand of the injured and advised to take 3 months complete rest even without moving the fractured hand and not to do any work and to come for review after one month.  On 08/02/2020, on X-ray there was no unusual things noted.  After that on 29/02/2020, after taken X-ray it was found that the position of bone was changed.  OP contended that on enquiry it was revealed that it was due to the carelessness of the injured by doing house hold work during the next period and not due to the negligence on the part of the OP No.1.

            OP 1 narrated the said facts in his version.  OP No.1 also relies on Ext.A3 series the prescription given by him to the injured 03/02/2020supports the said version of OP1 ie advised surgery, patient and bystander demanding conventional management, despite explaining possible further complication. It is also mentioned in the documents that on 08/02/2020 talked to this about possible early recovery with surgery.  OP 1 contended that injured was advised to seek admission in the other hospital where facility for surgery is available but the patient and bystander refused to go another hospital.    It is seen mentioned in the Ext.A3 series documents that on 08/02/2020, occasional pain – acceptable alignment, may be continued in the slab.  In Ext.A3 series dated 29/02/2020, it is mentioned that follow up X-ray alignment lost, consulted patient about need of surgery, Advised: Referring patient for ORIF.  OP 1 contended that as a specialist doctor, since the position of bone was changed from the original position on 29/02/2020, this OP has no other option but to advice the injured to a higher centre at the earliest for operation. So timely referred to a higher centre without unnecessary delay.

            On the other hand complainant alleged that even though the fracture of the patient so complicated one, without referring to other centre having facility for surgery, applied POP cast on the hand of the patient and continued treatment, only for getting monetary benefit with malafide intention.  Complainant alleged that the reason for not attained to regain movement of the hand of his wife was due to fault on the part of OP NO.1 doctor for giving proper treatment.  According to complainant though the injured came to OP 1on 08/02/2020, with severe pain of the fracture site, the OP 1 without taking reasonable care and not-adviced to go to higher centre for better treatment and failed to give required treatment and because of the carelessness, willful negligent taking reasonable care, though knowing that surgery is mandatory, continued the treatment in OP hospital having no facility for surgery, the injured has suffered severe pain till 02/03/2020 on which surgery was conducted in another hospital and still continuing the discomfort.

            Here the question to be decided is whether there was any medical negligence happened on the side of oP1 the treating doctor?

            For deciding the said point 1^st we have to look into the nature of fracture happened to the patient.  Ext.A3 series dated 03/02/2020 shows comminuted fracture.  Further Ext.A5 dated 02/03/2020 at District Hospital, final diagnosis was # humerus(L) means braking the bone in the upper(L) arm of the patient.  If humerus fracture happened, the patient might need surgery to repair the bone.  Further Pw2 the doctor who treated the patient at Syrus Sky Super Specialty hospital disposed after examining the X-ray of the patient (A2 series) that fracture happened to the patient was displaced fracture. (ഒരു സ്ഥലത്ത് പൊട്ടി 3 piece ആയി കാണുന്നുണ്ട്).  Further disposed that injury grievous nature ആണ്. Further when the counsel of complainant asked a question injury യുടെ nature പ്രകാരം എന്ത് procedure ആണ് follow                    ചെയ്യേണ്ടത്. (A) ideally ഈ കേസ്സിന് surgery ആണ് വേണ്ടത്.  If  patient medically fit ആണെങ്കിൽ.  Here OP1 has not examined the patient or referred to some other medical practitioner to find out whether she was medically fit or not.  It is to be noted that surgery was done on the patient on 02/03/2020 at District hospital Kannur, which means the patient was medically fit for conducting surgery on her fractured site.  Ext.A3 series also clearly shows that OP No.1 also was well aware t hat conducting surgery is the idle treatment to recover the patent from fracture.  OP1 contended that he had applied POP cast, since the patient and bystander was not ready to do surgery and they suggested conventional management.  Complainant (Pw1) has denied the said contention of OP No.1.  Another point raised by the 1^st OP doctor is that he had laid POP to the injured and advised to take 3 months complete rest even without moving the left hand and not to do any work and to come for review.  Further stated even though during the 1^st review position was correct during the 2^nd review it was noted changes in the bone.  OP1 contended that on enquiry it is revealed that she has done the house hold works during the treatment period ignoring the advice given by the doctor.  So the position of bone was changed due to the carelessness of the patient and claimed that he had administered appropriate orthopaedic treatment to the complainant’s wife in accordance with the standard medical practice in this behalf.  It is revealed that in Ext.A3 series (prescription) dated 08/02/2020, OP1 admits that occasional pain.  Further we can see in Ext.A5 the discharge card issued from District hospital, Kannur the patient’s complaint at the admission time was pain over (L) upper limb and the surgical procedure done was ORIF plating by supraclavicular block.  This method was used for post operative pain control for upper extremity surgeries.  Ext.A12 Prescription of Pw2 at Syrus Sky Super specialty Hospital dated 05/10/2022 shows that Pw2 has given pain killer tablet for nerve compression at the surgery site, which shows the pain over the (L) upper limb continued on 05/10/2022 also.    (after 2 and half years).

            Complainant’s claim that the complication of mal union o f bone was happened on his wife was due to the lack of proper treatment from the side of OP No.1. It is alleged that though there was no facility to do surgery at oP2 hospital, the OP1 without referring the patient to other hospital having more facility to do surgery and other medical management, put POP cast on the patient’s hand and continued the treatment is a medical negligence on the par t of OP No.1.

            OP No.1 contended that alignment of the bone was not lost on 08/02/2020  the 1^st review date of the patient and there was no unusual things noted and on 29/02/2020, on X-ray it was found that the position  of bone was changed.  But in X-ray dated 08/02/2020 taken by the OP NO.1 shows that the same injury as noted in the X-ray on 03/02/2020 the admission date.  This fact was admitted by OP No.1 (DW1) during cross examination page (3) “03/02/2020 െൻറ    X-ray യിലുള്ള അതേ  injury     തന്നെ 08/02/2020 െൻറ X-ray യിലും ഉണ്ടെന്ന് പറയുന്നു? (A)  ശരിയാണ്.  08/02/2020  െൻറ X-rayയിലേക്കാളും കുറച്ചുകൂടി മോശമായിട്ടുണ്ട്  29/02/2020 െൻറ X-ray യിൽ? അതെ.  Further 29/02/2020 ന് നിങ്ങൾ രോഗിയെ പരിശോധിച്ച സമയത്ത് വീട്ടുജോലികള് ചെയ്തിരുന്നതിനാലും, മറ്റുജോലികൾ ചെയ്തതിനാലും എല്ലിന് position variation വന്നത് എന്ന് version ൽ പറഞ്ഞകാര്യം prescription ൽ പറഞ്ഞുകാണുന്നില്ല?  ഇല്ല. Here OP1 was unable to produce any corroborating evidence in support of his said defence.  So the said contention of OP1 cannot be accepted.  In this contest the judgment submitted by the learned counsel of OP No.1 cannot be considered in this case.  Here there is no evidence that the OP1 doctor provided requisite skill, reasonable attention and reasonable care to the wife of the complainant.  X-ray dated 08/02/2020 also shows the same injury as noted on 03/02/2020 and the patient complaint of severe pain on 08/02/2020, the OP 1 could have referred  the patient to another hospital having more medical facilities than OP2 hospital.  Instead of that OP1 referred the patient to another hospital only on 29/02/2020 when the injury became worsened. During that period the fracture has become incurable and worsened and severe pain sustained.  So there was omission or failure on the side of OP1 in administering treatment to the wife of complainant especially she was an aged women having 74 years.  Hence negligence can be attributed against the doctor (OP1).  More over after detailed consideration of the pleadings, expert evidence, documents produced on record, and X-rays on different dates we come to findings that OP1 doctor was negligent in treating the complainant file for her displaced fracture grievous in nature.  Ext.A12 shows that she was suffering pain even after two years from the date of 1^st treatment of OP1.  Hence OP1 is liable to compensate the complainant’s wife for the physical discomfort, mental agony and financial loss.  Ext.A11 reveals that the complainant had taken loan from the bank during the treatment period (dated 12/06/2020) and it became due.   Here, since OP1 is an employee of OP2 hospital, both OPs 1 and 2 are liable to compensate the injured.

            In the result complaint is allowed in part.  Opposite parties 1 and 2 are directed to pay Rs.2 lakhs to the complainant towards treatment expense and compensation.  Out of which OP1 shall have to pay Rs.1,50,000/- and OP2 shall have to pay Rs.50,000/- to the complainant.  Since the version of OP3, contended that OPNo.1 and 2 have valid Insurance policy with OP3, united India Insurance company Ltd. (admitted by OP3), the amount is liable to be paid by OP3 to the complainant.  Otherwise OPs1 and 2 shall pay their proportionate amount to the complainant.  The opposite party shall comply the order within one month after receiving the copy of the order, failing which the amount Rs.2,00,000/- carries interest @9% per annum from the date of order till realization, and the opposite parties are liable to pay their proportional amount of money to complainant.  Complainant is at liberty to realize the awarded amount by filing execution application against opposite parties under the provision of Consumer Protection act 2019.

Exts.

A1-Authorization letter

A2(Series)- X-ray(10 in numbers)

A3(Series)- Prescription (2 in numbers)

A4- Treatment card dated 01/03/2020 (district hospital)

A5-Discharge summary

A6-Prescription dated 15/04/2020 (Dr.Sajithkumar- prescripition)

A7-Prescription dated 02/05/2020

A8-Prescription dated 28/05/2020 Dr.Sajithkumar (marked with objection)

A9-Prescription dated 29/06/2020 (marked with objection)

A10(series)-Medical bills (28 in numbers)

A11-Reminder notice

B1-Lawyer notice

B2-Reply notice

B3-Acknowledgment card

Pw1-Complainant

Pw2-Inas Ismail-witness of complainant

Dw1-Nikhil Kuriyan-OP1

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar