Date of Filing     :24-01-2012

                                                                                                Date of Disposal:09-03-2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 9^th day of  March, 2015

          PRESENT: Sri P.V. Krishna Murthy, B.A., B.L., President

                             Sri M. Subbarayudu Naidu, Member.

C.C.No.73/2012

Kaki Santhikumar,

S/o.Samuel,  Hindu, Aged 40 years,

Advocate, D.No.24-3-928,

R/o.Ambedkar Nagar, Nellore-3.                                                    ..… Complainant           

                                                                           Vs.

                                                        .        

            This complaint coming on 30-12-2014 and 18-02-2015  before us for hearing in the presence of  complainant in person and  Sri  R. Rajasekhar,  advocate for the opposite party  and having stood over for consideration till this day and this Forum made the following:

ORDER

(ORDER BY  Sri P.V. KRISHNA MURTHY, PRESIDENT)                                                                  

The brief averments of the  complaint are as follows:

            The complainant a practicing advocate of Nellore, met with an accident on                         27-10-2009.  He approached the opposite party for treatment.   The opposite party informed him that the  nerves of the palm  leading to the fingers were cut and advised a surgery.  The complainant underwent surgery on 31-10-2009  and was inpatient in the hospital of the opposite party.  He  was discharged  on 02-11-2009.  He  spent Rs.25,000/- towards  treatment.  The left fingers are not functioning properly inpsite of  physiotherapy.  The complainant  approached       Dr. A.V. Reddy, Plastic Surgeon in Bollineni Hospital in Nellore. He consulted                              Dr.G. Balakrishna, another plastic surgeon at Chennai.  He  underwent surgery  again spending Rs.50,000/-.  He was   hospitalized  from 17-02-2010 to  19-02-2010.  Eventhen, 50% of the defect alone was  recovered. The complainant became permanently partially disabled.  He recovered partially  after the physiotherapy at Chennai.  The opposite party is  not a plastic surgeon.  He performed  the surgery without qualification.  Hence, the complaint for payment of damages and costs.

            2.         The brief averments of the counter of the opposite party are as follows:

                       The complaint is not maintainable.  The allegations made in the complaint are not correct.  The complainant is not a  consumer. The complainant was treated by the opposite party.  The complainant underwent surgery.  The complainant has not  spent Rs.25,000/- towards treatment with the opposite party.  The opposite party is not aware of the  consultation with Dr.A.V. Reddy and Dr.G. Balakrishna.  He is not  aware of the surgery spending Rs.50,000/- at Chennai.  The opposite party  is qualified.  The opposite party gave a reply to the legal notice of the complainant.  The complainant sustained injury to fingers.  Tendon is a  thread like structure  that  moves  joints of fingers. The orthopedic surgeon is  trained to deal with  all  parts of the limbs and spine including bonus and tendons.   After repair to  tendons  recovery depends on several factors.  The physiotherapy is important.  The complainant came  late to the hospital.  He is also  middle aged.  Hence, recovery is slow.  The claim is untenable.  Hence, the complaint.

            3.         Now the point for consideration is “whether the opposite party committed deficiency of service?”

            4.         The complainant filed his affidavit and marked Exs.A1 to A8.  The opposite party filed his affidavit.

            5.         POINT:   The complainant was injured in an accident on 27-10-2009.  He received first aid in the Government Hospital, Nellore.  Subsequently, he consulted the opposite party and underwent surgery in his hospital.  As per the pleadings and evidence, the surgery was performed by the opposite party on 31-10-2009.  The complainant was discharged on                  02-11-2009 (para-3 of the complaint).  The fingers of the complainant were not functioning properly.  The complainant consulted a plastic surgeon in Bollineni Hospital, Nellore  and another plastic surgeon in Chennai.  He underwent another surgery on 17-02-2010 in Chennai.  The complainant filed  this case subsequently for damages.  The complainant contended that the opposite party being an orthopedic surgeon was not qualified to conduct the surgery, which should be done only by an plastic surgeon.  This is the negligence  attributed to the opposite party by the complainant.  The complainant pleaded that he suffered permanent partial disability  and his  fingers are  not functioning properly.  This is the gist of the claim.

            6.         The opposite party denied  all the allegations.  The opposite party  contended that he is qualified to perform the surgery to the complainant.  Regarding the improper  functioning of the fingers of the complainant, the opposite party attributed non compliance of physiotherapy as  advised by him.  Ex.A1 is a discharge summaries  issued by the opposite party and the Right Hospitals, Chennai.  Ex.A2 is a bunch of bills and charges.  Ex.A3 is the reports of the physiotherapist, prescriptions of Vijaya Hospital, Right Hospital and lab reports.  Ex.A4 is a bunch of train tickets.  Ex.A5 is a copy of the  complaint to the police.  Ex.A6 is the wound certificate issued by the doctor of the Government Hospital, Nellore.  Ex.A7 is a prescription  of a doctor of Mumbai.  Ex.A8  is the medical certificate issued by Dr.G. Balakrishnan,                            dated 06-10-2010. 

            7.         Admittedly, the opposite party is an orthopedic  surgeon.  The complainant  contended that the opposite party is not qualified to perform the surgery as it should be  performed by a plastic surgeon only.  The plastic surgery is defined as “surgery concerned with restorations, reconstructions, correction or improvement in  shape and appearance of  body structures that are  defective, damaged, or misshapened by injury, disease or growth and development” (Dorland’s pocket  medical dictionary, page-796).   The complainant contended that he went to the Government Head  Quarters Hospital soon after the accident  i.e., on                        27-10-2009.  Ex.A6 is the wound certificate issued by the medical officer, D.S.R. Government Head Quarters Hospital, Nellore.  The doctor mentioned that he  saw the patient  for the first time on 27-10-2009, but commenced the examination on 19-01-2010.  Inconsistent on the face of it. By the time  doctor saw the patient, operation was  performed in a private hospital.  The doctor noted the said fact  also.  Curiously the certificate was dated  03-02-2010 . This is another inconsistent fact.  Ex.A6 establishes the fact that the patient visited  the hospital  after the surgery.  Admittedly, the surgery was  performed  by the opposite party on 31-10-2009.  It follows that the complainant visited  the Government hospital after 2 ½ months.

            8          The opposite party  contended that no material was  filed to show that the injuries sustained by the complainant  required  the services of a special  plastic surgeon and not an orthopedic surgeon.  No material was filed by the complainant to substantiate his contention.  Even in the medical certificates issued by the doctor (plastic  surgeon of Chennai) it was not mentioned that it was not  a case of treatment by an orthopedic surgeon.  The complainant has to establish the fact that the injuries sustained by him, can be treated only by a plastic surgeon and not an orthopedic surgeon.  Ex.A1 is the discharge summary issued by the opposite party.  In orthopedic cases, physiotherapy is an important and integral factor.  The opposite party contended that the complainant was not regular in physiotherapy exercises.  Ex.A3 is a bunch of prescriptions, lap reports and the prescription and physiotherapist of Nellore.  The technician mentioned exercises to be performed  by the complainant in the document.  Ex.A8 is a certificate dated 06-10-2010 issued by the plastic surgeon of Chennai.  In Ex.A8, the said doctor observed  that the follow up physiotherapy  was  found inadequate .

9.         The said finding accords with the stand  of the opposite party that the complainant was not regular in physiotherapy  and as such the problem became complicated inspite of the performing the surgery in an adequate  manner.  There is no material to show  that the injuries sustained by the complainant involved  surgery concerned with restoration, reconstruction, correction or  improvement in  shape and appearance of body structures that are defective and that were damaged or misshapened.    In the absence of proof of the aforesaid, the contention, that  the opposite party ought not to have treated him has to be rejected in addition there is material to show that the complainant did not undergo regular physiotherapy.  Irregular physiotherapy is likely to complicate the good work of the surgeon.  Hence, this is not a fit case to attribute negligence or deficiency of service to the opposite party.  This is an unfortunate case.  However, there is no evidence to hold that the opposite party was at fault.  The complainant failed to establish the averred negligence  and deficiency of service on the part of the opposite party.  As such, the complainant is not entitled to the reliefs claimed.  The point  is held against the complainant.

            10.       In the result, the complaint is dismissed, but without costs.

            Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the   9^th day of  March, 2015.

                  Sd/-                                                                                                    Sd/-

           MEMBER                                                                                       PRESIDENT

                                             APPENDIX OF EVIDENCE

Witnesses Examined for the complainant

Witnesses Examined for the opposite party

                             EXHIBITS MARKED FOR THE COMPLAINANT

                         EXHIBITS MARKED FOR THE OPPOSITE PARTY

-Nil-

                                                                                                                                   Id/-

                                                                                                                         PRESIDENT

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