DOF.17.10.2008

DOO.5.1.  2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 5^th  day of January  2011

CC.225/2008

K.M.Purushothaman,

Advocate,

‘Shivapriya’

West of Pallikunnu Bunglow,                               Complainant

P.O.Tellicherry.

 (Rep. by Adv.V.Jayakrishnan)

1.Dr.Natarajan.M.

  NatarajHospital (P) Ltd.,

  Bazar Street,

  Madukkarai,

  Coimbatore, Tamil Nadu.

  (Rep. by M.K.Associates)

2. Dr.Vijayakumar, MS.Ortho,

  NatarajHospital (P) Ltd.,

  Bazar Street,

  Madukkarai,

  Coimbatore, TamilNadu

  (Rep. by Adv.Rajesh Nair)                         Opposite parties

3. The Manger,

   Indira Gandhi Co.op.Hospital,

   Manjodi, Thalassery.

  (Rep. by Adv.P.Mahamood)

4.Dr.Muhammad Fasel,

   Orthopedic surgeon,

    Indira Gandhi Co.op.Hospital,

   Manjodi, Thalassery

   (Rep. by Adv.P.Mahamood)

O R D E R 

Sri.K.Gopalan, President

          This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay an amount of `3,00,000 as compensation and to pay  cost of this proceedings.

          In nutshell the facts setout in the complaint are as follows:- On 22.9.07 at about 12.30 p.m the complainant with his wife and son met with an accident at Madukkarai near Coimbatore. On account of the injury sustained the complainant his wife and son were admitted in the hospital of 1^st opposite party. 1^st opposite party took X-ray of the fractured hand of the complainant immediately after the admission and intimated the complainant that the injuries are serious and unless an immediate surgery is required, failing which the complainant will be permanently immobilized paralysed and become useless. He further added that on account of that   reason he has fixed emergent operation and the same will be done at 4 p.m on that day itself. But no operation was done on the complainant till 4 p.m. On enquiry 1^st opposite party told the complainant that since the injury was serious the Ortho surgeon wanted to study the case thoroughly so that operation will be done only at 9 p.m. But the Ortho surgeon had not examined the complainant till 9 p.m.  It is from the discharge summary complainant could understand that the 2^nd opposite party was the Ortho surgeon referred by 1^st opposite party. Meanwhile complainant could understand from the relatives of the deceased co-passenger that 1^st opposite party hospital has no permanently employed Ortho surgeon. It is also understood that there is no necessary equipments available in the 1^st opposite party hospital to conduct such an operation. Hence the doctor advised the complainant, to be admitted some where else having better facilities.  Under such a state of affair the complainant requested 1st opposite party not to conduct the operation and to discharge him. 1^st opposite party immediately directed his staff members to take the complainant in a wheel chair to the operation theatre. Accordingly they took the complainant in a wheel chair to the operation theatre; complainant objected it but opposite party did not hear the objection. From the operation theatre after administering sedatives to the complainant the staff members of 1^st opposite party forcibly obtained signatures of the complainant in a printed paper. Till the complainant lost his conscious there was no other doctor in the operation theatre. Thereafter the operation on the right humorous of the complainant has been carried out and he was removed to ICU on 23.9.07. Complainant could understand from the discharge summary that 2^nd opposite party conducted the operation on the complainant. But it is a fact that there was no such ortho surgeon in the hospital of opposite party. Till the complainant has been discharged from the   hospital 1^st opposite party had not examined the complainant or not enquired about the health condition of the complainant. 2^nd opposite party has not given any medical advise to the complainant.2^nd opposite party is arrayed as a party on the basis of the descriptions in the discharge summary. Even after the operation there was intolerable pain on the fractured hand. Complainant was applied only an arm sling on the fractured hand.  That was insufficient to minimize the pain or prevent unwanted mobility. On 23.9.07 opposite party took X-ray, but it was not shown to the complainant deliberately even after requested to show it was deliberate. 1^st opposite arty did not called 2nd opposite party to examine the complainant after operation. Till the discharge 2nd opposite party did not examine the complainant. On account of  this reasons complainant requested to discharge him so as to  get him admitted in a  hospital at Thalassery. Immediately after hearing this  the opposite party turned hostile to him and he has asked to pay a huge amount He reduced the amount only after the interference of the relatives of the deceased co-passenger. 1^st opposite party collected the hospital charges on 24.9.07. But he told the complainant that records of treatment will be given only on 25.9.07 that too  only after the complainant has given in writing that treatment given him to the complainant was ‘satisfactory’ and ‘discharge on good health on request’. The complainant was not willing to make such an endorsement, but in a helpless condition he was forced to do so. Except the discharge summary and pre-operation x-rayno other documents  were handed over to him. No records even hospital bill was not given at that time. It was received after few days after the interference of police. The complainant was actually discharged from the hospital on 25.9.07 morning. He then returned to Thalassery by Ambulance and got admitted to the hospital of 3^rd opposite party, Indira Gandhi co-op. Hospital, Thalassery on the same day at about 7 p.m. The 4^th opposite party examine the complainant immediately and took x-ray. After examining the x-ray 4^th opposite party opined that operation conducted by the hospital of 1^st opposite party is improper and has been done negligent. As per the post operation x-ray taken from the hospital of 3rd opposite party the fracture is seen as comminuted fracture. The same has been caused by adopting closed nailing negligently without the assistance of modern equipments.  Post operative x-ray reveals that instead of putting Proximal and distal screw on the nail only proximal(upper) screw was fixed and left lower part of the nail free without putting the  distal screw. Apart from that there was no application of POP to the operated hand  but was applied only  with an arm sling. After examining the X-ray taken from the Indira Gandhi Hospital, Thalassery, 4^th opposite party, Doctor told the complainant that on account of the negligence and improper operation the fractured bones are not joined. So that a  2^nd operation is essential to cure the said defect. He further advised second operation is not advisory to conduct before the expiry of at least one month from the date of 1st operation. So the 4^th opposite party applied POP to prevent intolerable pain and unwanted mobility. Thereafter he was discharged for a total bed rest to prepare for the 2^nd operation.  On account of the severe pain the complainant was not able to move from the bed. Complainant was waiting for the 2^nd operation. Meanwhile one of his relative a doctor advised complainant to have consultation with another ortho surgeon. Accordingly he approached Dr. M.D. George, who was working in Thalassery Mission Hospital before the said period of one month itself. After examining the complainant Dr. George recommended for emergent 2^nd operation in order to cure the mistake committed by opposite parties 1 and 2. Dr.M.D.George conducted the operation on 25.10.07 and put nail and screws by adopting ORIF METHOD. After drawing the fractured fragments close, Dr.M.D.George fixed nail along with humerus and put six screws below and upper fragments of the site of fracture and locked the screws with a wire.  The fractured hand was also applied with POP slab.  He was discharged on 29.10.07 and advised to continue treatment. If the opposite parties 1 and 2 had conducted the operation properly he would have been recovered earlier without any pain and sufferings. All these inconvenience, loss and sufferings had been caused due to the negligent operation conducted by opposite parties 1 and 2. So also complainant happened to wait for the 2^nd operation for another month due to the wrong advice given by 4^th opposite party. If it was done immediately that much sufferings could have been avoided. On account of these reasons complainant sent lawyer notice to opposite parties claiming damages.  1^st opposite party alone received the said notice. The notice sent to 2^nd opposite party has been returned. The reply dt. 19.3.08 sent to the complainant shows that the same has been sent as per the instructions of both opposite parties 1 and 2. In Para 2 of the reply notice it is seen stated that the complainant required a surgery on his left arm. Actually the right arm of the complainant has been fractured. From this statement itself reveals  the negligence and lack of responsibilities of opposite parties 1 and 2. There is gross negligence and deficiency in service on the part of opposite parties 1 and 2 and also 4^th  opposite party on account of giving   wrong advice which caused  delay for the 2^nd operation. Therefore the opposite parties are legally bound to make good the loss of the complainant. Hence this complaint.

Pursuant to the notice opposite parties entered appearance and filed version separately denying the main allegations of the complainant. The contentions of 1^st opposite party in brief are as follows: Complainant, his wife and child admitted  the hospital of the 1^st opposite party following an accident on 22.9.07 at 12.45 p.m. After examination it was found that the complainant required a surgery of his right arm. The service of the2nd opposite party was requested and availed and he examined the patient on 22.9.07 at 4 p.m. After his  examination it was decided to conduct the surgery at 9 p.m.  A time gap of 5 hours was requried  so that the patient  was with empty stomach and was also duly prepared for anaesthesia. Necessary time was also required to complete the investigation  and to arrange proper instruments and appliances needed for surgery. This was duly informed to the complainant and all of them have consented for the same. It is wrong to say  surgery was fixed initially at 4 p.m and not performed due to the non-availability of the ortho surgeon and the ortho surgeon the 2^nd opposite party did not examine the complainant  till 9 p.m etc.  The surgery conducted to the complainant was with the prior consent of the complainant and his relatives. 2^nd opposite party examined and fixed surgery at 9 p.m. Details were explained to complainant. In fact it was requested by the complainant to perform the surgery. Consent letter was also signed by the complainant. The hospital was fully equipped with necessary infrastructure to conduct orthopedic surgery. It is a false allegation that there was not enough facility in the hospital. 2^nd opposite party, the Professor of Orthopedic surgery is the Unit Chief of Orthopedic at PSG Institute of Medical Science at Coimbatore. It is a 1000 bedded Medical College.  The2nd opposite party is a consulting surgeon at the hospital of 1^st opposite party. The 2^nd opposite party successfully completed the surgical procedure of complainant which is known as ‘Closed Nailing’. As per this procedure, incision is made in the upper end of the arm and through the incision, nail is inserted. The nail stabilizes the fracture. The nailing technique was widely adopted by several hospitals and surgeons. The complainant’s case was a fit one adopting the nailing technique. At least one week stay of the complainant was absolutely necessary for constant monitoring of application of plaster of Paris. The actual plastering takes place only after a couple of days.  The complainant was absolutely happy about the outcome of surgery. Complainant wanted to discharge so as to have further treatment at his native place. The complainant  get him discharged against medical advice. He himself endorsed thus  ‘discharged on good health on my request’. Complainant’s allegation that endorsement was made out of a compulsion is absolutely false. The surgery performed was correct procedure and medically accepted. All the X-rays and records were duly handed over to the complainant along with the discharge summary.  His admission in 3^rd opposite party hospital and treatment of opposite parties 3 and 4 are not known to 1^st opposite party.  The factum of 2^nd operation for curing the mistake and that according to Dr. M.D. George in the case of the complainant, the 2^nd operation ought to have been done immediately etc. are false. If the complainant had waited for at least 6 to 8 weeks after operation from the hospital of 1^st opposite party the fracture would have been completely healed. But he choose to opt another surgery within a month’s time. After surgery there is a healing process and which consumes time and in hasty examination within a short while would have been given wrong impression as his fracture has not been healed. The allegation that on account of accident the life of complainant became very miserable, he had severe pain and  was unable to move from the bed and that the complainant had undergone great hardship, misery, ,mental agony and shock, besides monitory loss and damages etc. are absolutely false. Hence to dismiss the complaint with cost.

The 2^nd opposite party in his version filed separately denying the allegations of complainant stated as follows: The 2^nd opposite party reached the hospital of 1^st opposite party where complainant was admitted at 4.p.m on22.9.07. He is the unit chief of Orthopedics at “PSG Institute of Medical Science”. He examined the complainant at 45 p.m on 22.9.07. The surgery was fixed at 9 p.m and informed complainant surgery would be performed at 9 p.m adopting the procedure ‘Closed Nailing’, which is a modern technique. The complainant had to remain in the hospital for at least one week so that he could be monitored by the 1^st opposite party. The complainant expressed urgency for discharge from the hospital though he was happy about the outcome of the surgery. The procedure adopted by this opposite party is medically accepted procedure. The complainant was hasty to have the follow up done after surgery. The complainant’s allegation that he had not examined by the opposite party is false. It is not correct to say that there was considerable gap after surgery as stated by the complainant. Healing process is a time consumed one and hasty examination within a short while might have a wrong impression that the fracture is not healed. This opposite party understands that the surgeon referred to at Thalasery had opined that the complainant had to wait for 2^nd surgery by one month.  The normal healing is 6 to 8 weeks. The age of the complainant is 50 years  if the complainant had waited for 6 to 8 weeks the fracture would have healed by the nailing done. The 2^nd surgery is not done to correct any mistake as alleged in the complaint. This opposite party had done everything and has the skill to perform such surgeries over the years and has the reputation. There was no negligence either in adopting the method of treatment or in conducting the surgery. The complainant has no right to relief as alleged in the complaint. Hence to dismiss the complaint.

The contention raised by the 3^rd opposite party in brief is as follows: The complaint is not maintainable either in law or in facts. The complainant is not entitled to get any relief as prayed for. The 3^rd opposite party is the Manger of IndiraGandhi Co. operative Hospital, Thalassery and the 4^th opposite party is working as a free-lands orthopedic surgeon in the 3^rd opposite party respectively. The complainant referred to 3^rd  opposite party hospital on  25.9.07 and consulted the 4^th opposite party with the  complaints of pain over the right upper limb.  After examining the complainant the 4^th opposite party  advised an X-ray of the operated arm. Then the 4^th opposite party advised  the complainant to take the follow up treatment from the hospital  from where he was operated. But the complainant was not willing to go back. Since the complainant was complaining of severe pain the 4^th opposite party advised applying a Plaster of Paris slab. After POP he was discharged on30.9.07. He was advised to wait for one month to see if the fracture  would heal properly or not.He also advised a 2^nd surgery may be required if the fracture doesnot heal properly. Since the alleged  cause of action has arisen at Coimbatore, the complaint is not maintainable before this Forum. The complainant did not came later for proper follow up and  went to another orthopedic surgeon  after one month and  got a 2^nd surgery done. The 4^th opposite party had also advised a 2^nd surgery after one month if his fracture does not healed properly. In the entire complaint the complainant has made no specific allegation regarding the services provided by the 3^rd opposite party during his stay in the hospital for 5 days. This opposite party is not aware of the nature of injury and treatment given by opposite parties 1 and 2.  HH The averment regarding the lawyer notice sent to opposite parties 1 and 2 and the reply given by them is not pertaining to the knowledge of the 3^rd opposite party. The alleged pain and suffering was not due to the advice of this opposite party.  The defective surgery suffered by the complainant were not any act or omission on the part of 3^rd opposite party. The complainant did not come for proper follow up, though he was advised to do so. e

The compensation claimed under different heads by the complainant are exaggerated and without any basis. The complainant is not entitled to get any compensation from the 3^rd opposite party. The 4^th opposite party is working as a free-lance orthopedic surgeon and not as a paid employee of the 3^rd opposite party and the principle of vicarious liability of the employer is not applicable to this case. Since the complaint is vexatious, frivolous and liable to be dismissed.

          The contention raised by 4^th opposite party in his version in brief is as follows: This opposite party is a consultant orthopedic surgeon working in IndiraGandhi Co.op. Hospital, Thalassery. The complainant came to the 3^rd opposite party hospital on 25.9.07 and consulted the 4^th opposite party with the complaints of pain over the right upper limb. He was treated in the hospital in Coimbatore where he underwent an operation  on 22.9.07 following an accident. He got discharged on 25.9.07. This opposite party advised  to take follow up treatment from the same hospital from where he was operated. Since  complainant was not willing to go back opposite party advised to apply for a  plaster of Parris slab. Since the pain was relieved he was discharged on 30.9.07.The patient did not come for proper follow up  there after. The advice of the opposite party to complainant was to  wait for  one month to  see if the fracture would heal properly or not.  2^nd surgery may be needed only if the fracture would not heal. Complainant went to another surgeon after one month and got a 2^nd surgery done. The averments of the complainant regarding the treatment offered by opposite parties 1 and 2 at Coimbatore is not pertaining to the knowledge of this opposite party. The averment of the complainant that 4^th opposite party opined the operation conducted in the hospital of 1^st opposite arty was improper and had been done negligently is false and baseless. He opined that the POP slab would have to be applied to relieve the pain. The x-ray of the operated arm also advised. This opposite party further opined that since a closed nailing was done the anatomical reduction may not be always achieved immediately and it was best to wait for at least one month to observe the nature of healing of the fracture. If the fracture does not unite properly on review a second surgery may be required. The 4^th opposite party had never opined that surgery done by the 1^st opposite party hospital was a negligent and improper manner. The averment of the complainant that the wrong advice given by the 4^th opposite party had caused lot of inconvenience, pain and sufferings to him are false and ill motivated. The alleged pain and sufferings was in no way caused by 4^th opposite party since it was not  the 4^th opposite  party, who had done the surgery to the  complainant. It is wrong to say that the complainant caused any mental agony or monetary loss due to the act of 4^th  opposite party. The compensation claimed under different heads are exaggerated and without any basis. The complainant is not entitled to get any compensation from this opposite party . Hence to dismiss the complaint.

          On the above pleadings the following issues have taken for consideration;-

1. Whether the complaint is maintainable?

2. Whether there is any deficiency in service on the part of opposite

    parties?

3. Whether the complainant is entitled for the remedy as prayed in the 

    complaint?

4. Relief and cost.

          The evidence consists of oral testimony of PW1, PW2, DW1 and DW2 and Exts.A1 to A15 , B1 to B5.

Issue No.1

          Admittedly complainant, his wife and son were admitted as Inpatient in the hospital of 1^st opposite party following an accident on 22.9.07. He was discharged from the hospital on 25.9.07 and there after complainant, wife and child admitted in the hospital of 3^rd opposite party. 4^th opposite party Doctor attended them in the hospital of 3^rd opposite party. Opposite parties 3 and 4 are within the jurisdiction of this Forum. The question of jurisdiction was decided as preliminary issue on I.A.246/09 and order passed granting requisite leave to the complainant to proceed with the complaint. Nothing special over and above the facts what is discussed in I.A.246/09 had been brought in evidence for fresh consideration and thus the question of maintainability has been taken asanswered as per the order in the above said I.A. and the complaint is found maintainable.

Discussion in I.A is not reiterated here in order to avoid repetition. Thus issue NO.1 is taken as answered in favour of the complainant.

Issue No.2

          The case of the complaint is that he has requested the 1^st opposite party not to conduct operation but he was taken to operation theatre. Opposite party did not care the objection raised by the complainant, after administering sedative to complainant, the officials of 1^st opposite party forcefully obtained the signature of the complainant in a printed paper. There was no other doctor except 1^st opposite party till complainant lost his conscious. Operation was conducted on his right humerus and there after removed him to ICU on 23.9.07. Complainant could understand that  2^nd opposite party was the doctor who conducted the operation as per the discharge summary. But complainant states that he learnt from others that there was no such orthopedic surgeon in the hospital  of 1^st opposite party. Complainant alleged that till he has been discharged from the hospital opposite party has not examined the complainant, he has not also given any medical advice by2nd opposite party. 2^nd opposite party is arrived as a party to this complaint on the basis of prescription in the discharge summary issued by1st opposite party and also on the basis of averment in his reply notice. Even after operation he was suffering with intolerable pain. He was applied only an arm sling on the fractured hand which was quite insufficient to balance the pain and to prevent an unwanted mobility .Though complainant requested to show him the X-ray taken on 22.9.07,1^st opposite party deliberately  did not show the same. So complainant doubted the correctness of the operation.  Though complainant complained to 1^st opposite party there was severe pain on the fractured hand 1^st opposite party did not take any care. He did not even called 2^nd opposite party to examine the complainant. On account of this complainant requested the 1^st   opposite party to discharge him from the hospital to be admitted in a hospital at Thalassery. But on hearing the same the attitude of the opposite party turned hostitle. He demanded a huge amount as hospital charges. It was after the interference of the relatives of a deceased co-passenger the1st opposite party agreed to reduce the hospital charges. 1^st Opposite party collected the hospital charge on24.9.07 at 9 p.m, but he told the complainant that all the records in respect of the treatment will be given only on 25.9.07 morning that too only after the complainant has given in writing that treatment given to him to the complainant was satisfactory and discharged  on good health with request.  Complainant was not willing to make such endorsement, but on compelling circumstances he was forced to do the same. Even after making such an endorsement the 1^st opposite party did not hand over any medical records to the complainant except the discharge summary and pre-operation X-ray. Even the receipt of the hospital bill was not given and the same was received by the complainant after few days due to the interference of police and others.

          Complainant was discharged on 25.9.07 morning. It was admitted in the hospital of 3^rd opposite party – Indira Gandhi Co-op. Hospital, Thalassery on the same day at about 7 p.m. 4^th opposite party examined the complainant there from and complainant alleged that 4^th opposite party opinioned that the operation conducted from the hospital of 1^st opposite party is improper and the same has been done negligently. He also alleges that the X-ray reveals the complainant sustained comminuted fracture. Even though the humerus is broken into two fragments nail has been inserted along the bone and put only one screw on the upper part of the site of fracture leaving the lower part unscrewing. Complainant alleges that while doing the same the opposite parties 1 and 2 have not applied their mind to draw the two fragments close in order to join the same properly. They have not even applied POP slab.

          4^th opposite party after examination told complainant that on account of negligent and improper operation the fractured bones are not joined, so that 2^nd operation is essential to cure the said defect. But 4^th opposite party opined that it is not advice to conduct a 2^nd operation before the expiry of at least one month. He then applied POP “U” slab on the fractured hand in order to prevent pain and mobility. Complainant was discharged there after for a total bed rest to prepare for a 2^nd  operation. But on account of severe pain complainant went and consulted with another ortho surgeon, Dr.M.D.George he is also a practicing doctor in Thalassery Co. operative Hospital. After examining the complainant Dr.George recommended for an emergent 2^nd operation. Dr.M.D.George conducted operation on 25.10.07 and put nail and screws by adopting            ORIF METHOD. Dr.George fixed nail along the humerus and put 6 screws below and upper fragments of the site of fracture and locked the screw with a wire. Complainant alleges that the improper and negligent operation conducted by opposite parties 1 and 2 and the wrong advice given by 4^th opposite party caused much inconvenience, pain and sufferings and also heavy monitory loss.

          Complainant adduced evidence by filing chief affidavit in lieu of chief examination. He has stated that 1^st opposite party has taken X-ray and with an intimation, opposite party told him that  unless an   immediate surgery had been done his right hand will be permanently immobilized and paralised and became useless. He further says that 1^st opposite party told him that the operation has fixed at 4 p.m. But no surgery was done at 4 p.m. 1^st opposite party told him on enquiry that the Ortho surgeon  wanted to study  the case thoroughly  since the  injury is serious, so that operation will be done  only at 9 p.m. But till 9 p.m any Ortho surgeon or any bone specialist had examined the complainant. Complainant further states that he could understand that there was no permanent ortho surgeon and necessary equipments or other infrastructural facility available in the hospital of 1^st opposite party. Because of these facts complainant was not willing to conduct operation without having a discussion with his brother. Since his brother was on the way he requested the 1^st opposite party to wait till the arrival of his brother. Complainant states that he has also informed the opposite party about  his intention to get discharge in order to go to some other hospital having better medical facilities. Ignoring the request of complainant 1st opposite party instructed to his staff members to take him in a wheel chair and sent him to operation theatre for the operation that has been done on his right humerus.

          Complainant further states that 1^st opposite party did not obtain consent of the complainant or his relatives but from the operation theatre after administering sedative medicine on him one of the staff members of 1^st opposite party forcefully obtained signature of complainant in a printed paper. But before reading the printed paper he lost his conscious. Complainant also states that while he was in the operation theatre there was no other doctor except opposite party. It was from the discharge summary that the complainant could understand the operation of complainant was conducted by 2^nd opposite party. He states that he did not see such a doctor before or after the surgery. He discharged from the hospital on 25.9.07. From 22.9.07 to 25.9.07 he was not attend by 2^nd opposite party.

          After the operation the pain on the fractured hand of the complainant was intolerable and he brought to the notice of 1^st opposite party this fact of severe pain, but he did not care for the same. Though he requested to show the check X-ray taken by him after operation the same was not shown to complainant. Complainant says that because of non-showing the check X-ray and of the unbearable pain he was in doubt with the correctness of operation.

          1^st opposite party admitted that the complainant and his wife and child admitted in the hospital of 1^st opposite party on22.9.07. Opposite party contended that after examination by the doctors it was found that the complainant required an immediate surgery. But he did not disclosed who were the doctors examined the complainant. 1^st opposite party further contended that the service of the2nd opposite party was requested and availed and he examined the patient on 22.9.07. Complainant’s allegation is that X-ray was taken from 1^st opposite party hospital and intimated that the injuries are serious and if immediate surgery has not been done the right hand will be permanently immobilized , paralysed and became useless. He was also told that he has fixed the operation at 4 p.m on the same day. Complainant further alleges that there was no permanent ortho surgeon and necessary equipments or infrastructural facility to conduct ortho surgery and knowing these fact he requested 1^st opposite party to wait his brother who is on the way. Complainant alleged that he has also asked the 1^st opposite party to discharge him. 1^st opposite party has admitted that he has availed servie of 2^nd opposite party and he examined the complainant at 4 p.m. That shows the seriously injured complainant has been examined by the ortho surgeon only after 1 ½ hours. It is also made clear that 1^st opposite party hospital has no permanent ortho surgeon. That is the reason why complainant was left free without being examined by an ortho doctor for more than 1 ½ hours. complainant has further case that since at the time of admission till 9 p.m neither ortho surgeon nor any bone specialist had examined or attend the complainant.

          However even according to opposite party the seriously injured complainant who is in need of immediate surgery examined by the expert doctor only after 3 hours. There is no explanation for this delay on the part of 1^st opposite party.

          Blood test, urine test, ECG, X-ray etc. are routine investigation which has been simultaneously done in the usual course of treatment. It cannot be taken as a reason for the delay of this much time. An immediate attention of an Ortho surgeon  is naturally been expected  while patient is admitted after a major accident. This is an accident where one passenger died and the entire family of the complainant sustained severe injury which is naturally a situation that the degree of mental tension cannot be measured at all. Under such circumstances the absence of a specialist to attend the complainant for a long time is certainly a matter of deficiency in service. 2^nd opposite party is admittedly a consulting doctor and not a permanent staff of the 1^st opposite party hospital. So the possibility of the delay in this case is understandable. Any way   opposite party failed to assure the presence of an expert   for the immediate attention of complainant, Opposite party contended that the doctors examined complainant and found he required an emergent surgery. 2nd opposite party examined the complainant at 5.30. Who are the other experts examined the complainant is not disclosed. No records goes to show any body else other than 1^st opposite party examined the complainant during this interval. It is not proved that any other orto surgeon examined the complainant before the examination of 2^nd opposite party. Ext.B1 sheet 8,9and 10 does not contain the signature of the concerned authority. Complainant has the allegation that there is no permanent ortho doctor in the hospital of  1^st opposite party What DW1 deposed in cross examination is thus “ I have doctor in orthopedic surgery. He is my son-in-law. He joined in service 10 years before. At that time when the complainant was admitted in the hospital he was in service but on the particular day he was on leave. There is no special record to show that my son-in-law was on leave on that date”.  2^nd opposite party in his cross examination deposed that 1^st opposite party has no orthopedic surgeon of their own. He also deposed that it was 1^st time 1^st opposite party called him to attend. Anyway it is evident that the doctor who conducted the surgery, 2^nd opposite party was only a consulting doctor. Admittedly operation was conducted at 9 p.m ie. only after a time gap of 6 ½ hours. There is no justification for this much of delay. Since there is no permanent orthopedic surgeon, there is nothing wonder for this delay, which is quite self explanatory. Though it was attend  by  Dr.Vijayakumar who did operation to the complainant was a consultant. He was deposed in cross examination that “This is the 1^st case 1^st opposite party called me to attend”. Where as 1^st opposite party stated in his affidavit that the service of 2^nd opposite party had been availed when they required as in this case. That means he is not a  doctor, who had been usually conducting surgery in such cases. 2^nd opposite party explained the reason for the delay by deposing in cross examination thus: “the reason for the delay is when I examined the patient, I realized the need of some more instruments which were not available there”. The allegation of the complainant that there was no enough facilities in the hospital has substance. The evidence of DW2 itself shows that there is no necessary instruments within the hospital  for conducting the urgent operation. So also it can be seen that there was no permanent orthopedic surgeon in the 1^st opposite party hospital. In Jagadeesh Kumar Arora & Anr. Vs. Khosla Medical Institute & Research Society & Ors. Reported in CPJ 2009(III)199 of Delhi State Commission categorically stated that ‘hospital expected to equip itself with all treatment facilities and medicines for complications’. The above decisions makes it clear that the non-availability of  the necessary instruments and the expert doctor in time is a clear deficiency in service.

          It can be seen that the delay of operation caused due to non availability of instrument and also because of the reason that there was no permanent orthopedic surgeon This is a case where in an urgent operation was required within 6 hours even according to DW2. But it was delayed for more than 8 hours due to non-availability of instruments which is definitely deficiency in service.

          2^nd opposite party in his version stated that complainant was examined by him at 4 p.m. In the cross examination 2^nd opposite party as DW2 deposed that he has examined at 4.30p.m. He has also deposed that ‘I do not know who has written ‘4.30’ in Ext.B1(a). It can be seen that 4.30 p.m has been written in different ink with no match with the other writings in the sheet. If it is taken that he did not written the time 4.3o, it can be seen that the time of examination had not been recorded in Ext.B1(a) .In this case since the doctor examined is only a consultant it should have been record correctly the exact time of examination of the patient. The doctor who has recorded notes did not put in writing the time. DW2 doctor deposed in his cross examination that ‘I do not know who has written 4.30 in Ext.B1(a). The omission of recording of time cannot be considered without reason. If it is taken as examined at 4 o’clock that means the operation was delayed for 5 hours thereafter for reasons of non-availability of instruments. It shows that in a case of emergency a leading hospital 1^st opposite arty could only manage to organize the instruments of operation by taking a total delay of 5 hours. On the other hand if not examined at 4.30 p.m that much delay had been caused to be examined the complainant by an orthopedic surgeon after admission. Hence a deeper look at the facts makes clear that there is deficiency in service on the part of 1^st opposite party hospital.

          Complainant alleged that the surgery has been done without obtaining consent from the complainant or his relatives. It is interesting to note that DW2 was not aware who had actually obtained the consent of the patient. 1^st opposite party stated in the version that surgery was conducted to PW1 with the prior informed consent of the complainant and his relatives. It is the fact that the wife of the complainant was sustained hip bone fracture and dislocation and had undergone surgery before the complainant was taken to the operation theatre. It is certain that sedative medicines might have been given to her and under such condition she was not able to give consent. It was not possible to obtain consent from her. The contention of the opposite party that consent was obtained from his wife cannot be believed. Complainant alleged that after administering sedative medicines on the complainant one of the staff members of the opposite party obtained signature of the complainant in a printed paper while he was subject to lose his consciousness slowly. So opposite party has the burden to prove that the consent was obtained. There is no proof to conclude that consent was obtained from the patient or his relatives. Ext.B1 consent form cannot be considered as a reliable document. DW2 deposed in cross examination that ‘I did not obtain consent from the complainant I do not know who had actually obtained the consent. I conduct close nailing’. Thus it is clear that the doctor who had conducted the operation did not obtain the consent of the patient. DW1 in his cross examination deposed that I obtained consent from the complainant for surgery. After arrival of 2^nd opposite party I obtained consent that was at 4 p.m……at 4 p.m” 2^nd opposite party came and examined the complainant. If DW1 had taken consent as he stated that would have been naturally in the presence of 2^nd opposite party. Therefore it is made clear that in this case no informed consent was obtained from the patient or his relatives. The signature of the printed consent form can only be considered have been obtained mechanically, in the light of the deposition of DW1 and DW2 itself. If the words of DW1 taken as true, consent obtained during the time of examination of complainant by 2^nd opposite party. The wife of the complainant was also seriously injured and undergone surgery on the same day before the operation of the complainant. The perusal of the consent form will revealed that no name of anaesthetist is recorded there. Hence as far as this case is concerned informed consent is not proved. In Babu Rao Vithal. Lohakapure & Ors. Vs. Suniti Devei Singhania  Hospital and Medical Research Centre & Ors. The Hon’ble National Commission made it clear that the informed consent is a must and the absence of which is a deficiency in service. No record produced herein will go to show that the opposite party has obtained consent from the complainant. In the above case reported in II (2008) CPJ31 (NC). Hon’ble National Commission stressing the point of necessity of explaining the conduct of operation and of regarding the same held that “in a medical negligence case doctors and the concerned hospital have responsibility to correctly explain their conduct and records should prove that there was no negligence on their part”. The documents produced by opposite party does not show such a recording any where. The omission on recording the name of anesthetist is a clear negligence that amounts to  deficiency in service.

          Moreover the provisional diagnosis sheet in Ext.B1 can be seen blank the space of signature of the doctor who conducted the investigation. The special remarks column that recorded ‘nailing was done’. It was also not contained the signature of the concerned doctor. If that be so how can it be determine that the operation had been done by such and such doctor. The consent form part of Ext.B1 the name of the doctor conducted surgery is shown as Dr.Rajan. Under the supervision of Doctor M.R . Purushothaman. Dr.M.Natarajan is the 1^st opposite party. Who is this Dr.Rajan is not explained. Under these circumstances it is not clear who has performed the operation. The name of the doctor who has conducted the operation as per the consent form attached with the case sheet Ext.B1 is not that of Dr.Vijayakumar, 2^nd  opposite party  but one Dr.Rajan. Complainant pleaded that till he lose conscious, there was no other doctor except 1^st opposite party in the theater. He has also pleaded that there was no such ortho surgeon in the hospital of 1^st opposite party. He has specifically alleged that he could not see 2^nd  opposite party before or after the surgery. Taking into consideration the name of the doctor operated written in the consent form, the allegation of the complainant cannot be rejected straight away. 1^st opposite party has the burden to prove who has conduct the operation  beyond doubt.  Opposite party  did sign in the  provisional diagnosis sheet of the patient Mr. Purushothaman dt.22.9.07.Though in the special remarks column the following names are written Dr.Vijay Kumar and Dr.Kalyana Sundaram. Remarks column written in different ink. Relying on these documents it is not possible to derive at a conclusion that it is the Dr. 2^nd opposite party Dr.Vijaykumar who has conducted the operation to the complainant.  It is pertinent to note that the complainant was inpatient there upon to  9 am on 24.9.07.

Treatment sheet between 23.9.07 to24.9.07 also does not show any evidence that 2^nd  opposite party has attended the complainant during this time. Complainant alleged that 2^nd opposite party did not examined him after the operation. There is no satisfactory explanation on the side of opposite party to this question. Under these circumstances there is no wonder if there is a doubt with respect to the actual doctor who had conducted the operation which definitely hug deficiency in service on the part of 1^st opposite party.

          The main allegation of the complainant is that the 2^nd operation was necessitated as a result of the negligence on the part of opposite parties 1 and 2 in performing the 1^st operation. Complainant alleged that ‘closed nailing’ negligently done without the assistance of modern equipments is the main reason for the failure of the 1st operation. It is also alleged that opposite parties 1 and 2 did not apply the mind in inserting the nail along the portion and put only one screw on the upper part of the site of fracture leaving lower part unscrewing. No POP slab was applied to minimize the twisting and mobility.

          It is the admitted fact that the surgical procedure adopted is ‘closed nailing’. 2^nd opposite party contended that the procedure was completed by him and it is a well know modern techniques, which is vitally adopted. But no where in the version 2^nd opposite party stated the reason for avoiding the POP. Complainant alleged specifically that the fractured hand was applied only with arm sling. The same is an admitted fact. Opposite parties 1 and 2 are bound to give a convincing explanation for avoiding the POP slab, which is in ordinary course necessary to assure the control of mobility. It is quite understandable even for a man of ordinary prudence POP is necessary for control of the mobility. But opposite party did not even feel that at least an explanation is necessary for justifying the act of avoiding an application of POP slab on the fractured hand of the complainant. There is no need to hesitate to say that it is a deficiency in service on the part of opposite party.

          It is another important point to look into the aspect of leaving lower part of the site of fracture unscrewed in closed nailing. In Fourth Edition of Rockwood and Green’s of Fractures in Adult Vol. I,    in page NO.1046 under the sub title Nonunion reads that ‘the literature suggests that 4 months is a reasonable period of time for humeral shaft fractures to unite’. The authority justifies the advice given by 4^th opposite party to wait for further time for 2^nd surgery  as reasonable and thus the allegation of the complainant that the advice given by  4^th opposite party was wrong cannot be  sustained in the light of the above authority. But it is pertinent to note that figure 15-22(B) Seven month postoperative radiograph demonstrating union after placement of a reamed humeral interlocked nail and cerclage wire in the same page in the same authority.  It can be seen that lower part of the site fracture screwed. In volume III, Ninth Edition, CAMPBELL’s Operative Orthopedics, edited by S.Terry Vannale, M.D, dealing with screw fixation in page No.2229 reads “the best results are obtained with closed-section nails that have locking screws at both ends’. Opposite party has not furnished any manner or any authority so as to justify on his part the leaving of lower part of the site of fracture unscrewed. It is very relevant to note the decision of the National Commission in Babu Roa Vithal Lohakpure & Ors. Vs.     Sunithi Devei Singania Hospital and Medical Research Centre & Ors. (II(2008)CPJ 31(NC) that “ In a medical negligence case the doctors and the  concerned hospital have  a responsibility to correctly explain their conduct and their records should prove that there was no negligence on their part”. Opposite parties failed to explain their conduct on one hand and secondly even the name of the doctor who has conducted the operation has not been recorded properly. Hence on the basis of the available authority it can only be come into conclusion that best results can be obtained with closed section nails that have locking screws at both ends’.

          2^nd opposite party argued in length detailing the decision AIR (SC) 2005 page 318. What is discussed on the above stated decision is on the difference between occupational negligence and professional negligence. Opposite party has to prove that he has follows a practice acceptable, medical profession accepting at that particular time. But opposite party here in failed even to produce the relevant part of literature to that effect. The learned counsel also relied upon 2009(2)KLT Suppl.1133 page, so as to give stress that onus to prove medical negligence lies largely on claimant. The principle that mere averment in a complaint is not enough is  well accepted position of law but one should bear in mind that the claimant is not liable to prove what opposite party  has pleaded. If the doctor has followed an acceptable procedure the burden lies upon him to prove that the procedure that has been follows by him is a procedure acceptable to the medical profession existing at that point of time. Mere statement is not sufficient but it has to be supported with authority. In Spring Meadows Hospital Vs. R.H.Ahulvalia, 1998 CTJ 81(SC) Hon’ble Supreme court stated that the hospital  in no way  disowns their  responsibility  for any mishap due to the fault or negligence of their doctors. Apex court observed in  judgment  that “ It is the duty of the hospital to satisfy  that there was  no lack of care or diligence. The hospitals are institutions, people expect  better and efficient service, if the hospital fails to discharge their duties  through their doctors being  employed on job basis or employed on contract basis, it is the hospital which has to justify.

          The complainant after discharge from 1^st opposite party hospital with his wife and child admitted in the hospital of 3^rd opposite party, Indira Gandhi co-op. Hospital, Thalassery on 25.9.07 evening. Complainant stated that after examination,  4^th opposite party told  him that  on account of the negligent and improper operation the fractured bones are not joined, so that a 2^nd operation  is essential to cure the defect. The doctor further added that it is not advisable to conduct the operation before expiry of at least one month. He then applied POP ‘U’ slab on the fractured hand. Complainant was discharged there after for bed rest. But the complainant on account of severe pain compelled to approach another doctor Dr.M.D.George. Dr.George recommended for an emergent 2^nd operation for curing the mistake committed by opposite parties 1 and 2. Accordingly Dr.George conducted the 2^nd surgery without waiting further.

          The material allegation against 4^th opposite party is that he has not advised immediate 2nd surgery for complainant. He has advised surgery. But according to him operation should not be done before one month. Hence the question arose whether the advice of 4^th opposite party to wait for one month for the 2nd operation can be considered as deficiency in service. It can be seen that the ultimate charge against 4^th opposite party is wrong advice. 4^th opposite party contended that he had advised the patient to report him incase there is any discomfort. It is not denied by the complainant. It can be seen that complainant did not report 4^th  opposite party after his discharge from 3^rd opposite party’s hospital. If the complainant was suffered with intolerable pain he should have reported before  4^th opposite party, since he had advised him to report if any discomfort arise. If that was done, it would have been made clear what relief 4 opposite party intended when he asked the complainant to wait for a month time for the 2^nd operation. 4^th opposite party contended if he had intolerable pain complainant would not have waited till24.10.07 for further consultation.  That was not answered by the complainant.  The literature Fourth Edition of ‘Fractures in Adult Vol. I, page 1046’ case to show that literature suggest that 4 month is a reasonable time for humeral shaft fracture. In the light of such an authority suggests it is not wise to take position casting deficiency on 4^th opposite party for the advice he has given to wait for another one month for the 2^nd operation especially when taking into account the fact that he was vigilant in advising the patient-complainant at the time of discharge to report back in case of any trouble. Complainant but thereafter did not turned up to report his grievance to 4^th opposite party. It was reported and 4th opposite party happened to advice  again for waiting further, the case would have been different and without hesitation it could be conclude that 4^th opposite party is   guilty of deficiency  in service.  It is also relevant to take in to account the opinion of Dr.George. In his chief examination he has given evidence that usually fracture takes 1½ months for union           . Hence no deficiency can be attributed to 4^th opposite party.

          The 2^nd operation to complainant was done by Dr. George, PW2. He has deposed in box that he has compelled to advice 2^nd operation due to displacement of bones at the fractured site and continued pain. He has further deposed that Ext.A4 X-ray shows there was considerable gap between fractured bones. His further evidnce shows that even after one month there were no signs of reunion. He has deposed thus:” as per Ext.A4 one screw is fixed on the proximal position. On the other side there is no screw and left unscrewed”. Dr.George in his chief examination stated that ‘idle both proximal and distal ends should be screwed”. He further deposed that POP for support of fractured bones, reduce movements and also to relax pain. He has also deposed that if arm sling alone is given, there is possible of mobility at the fracture. PW2, Dr.George is the orthopedic doctor who successfully conducted the 2^nd operation of complainant. He has deposed in cross examination that the general condition of the complainant was good; it will not be a problem for travel. Opposite parties contention that the journey of the complainant after discharge created problem in the operational portion of the complainant is not acceptable. PW2  Dr.George deposed in cross examination thus: “I have referred the X-ray dt.21.10.07 (Ext.A4) after looking the X-ray I can say that 2^nd operation is necessary. Answer to another question he has further deposed that “without operation re-union cannot occur. The above evidence of PW1undoubtedly makes it clear that the 2^nd operation was unavoidable.

          It is seen that the Literature cited above authoritatively explained that best result are obtained with closed section nails that have locking screws both ends. DW2 in his cross examination given evidence that by principle,  both the ends should be locked. He further stressed that both screws should be necessarily fixed. The evidence of PW2 Dr.Geore together with the literature cited above by the complainant which is seen established that fixation of screw of both ends should be necessarily fixed and it produce best result.2^nd opposite party did not give any authority to establish that he has followed practice acceptable to the medical profession existing at the relevant point of time that assures best result. PW2 in his re-examination very clearly deposed that there is element of risk if distal screw is not locked; there is a chance of movement of fracture. Hence it is a definite case of deficiency in service. To the suggestion that usually the doctor will apply POP after the 2^nd post operative day, PW2 doctor answered ‘No, it has been applied immediately’. This evidence makes it ascertain that POP can be applied immediately after the operation. The question of POP is more important in the case of complainant. Since it is a case where lower part of the site of fracture left unscrewed, it has come to light with the available evidence that there is a chance for movement of fracture if distal screw is not locked.

In the light of available evidence on record it can be seen that the dealings of opposite parties 1 and 2 from the very outset  seems to be improper and insufficient. It can be seen that there arose a delay of more than 8 hours for an operation where according to 1^st opposite party  himself required emergent  operation. The evidence of operating doctor reveals that non-availability of instruments is also reason for the delay in operation. It has also brought in evidence that the operation was conducted without obtaining informed consent  PW2 categorically stated that the 2^nd operation was inevitable without which the reunion  could not be  achieved. Moreover the state of affairs after operation remained under element of risk with chance of movement on the structure sight since distal screw has been left unscrewed and kept the hand under slim without applying POP. Taken into account the entirety    of the performance of opposite parties 1 and 2 we are of considered opinion that there is negligence and thereby deficiency in service on the side of opposite parties 1 and 2.  Hence both opposite parties 1 and 2 are held liable for deficiency in service. 3^rd opposite party cannot be held liable since he has succeeded in proving by producing authority that the advice to wait for  one month for another operation is advisable and not wrong advice.

          Apart from mental and physical agony complainant also alleged that he has suffered heavy economic loss he estimates his damage to the tune of   `300000. It is quite understandable that complainant has met a huge amount to his 1<sup>st</sup> and 2<sup>nd</sup> operation and also suffered mental pain. The mental pain due to the failure of the 1<sup>st</sup> operation and conducting of a 2<sup>nd</sup> operation is a matter of great concern which also necessitates meeting of a  good expense. Taking into account the entire aspect we are of opinion that opposite parties 1 and 2 are liable to pay an amount of `1,50,000 as compensation together with an amount of `1500 as cost of these proceedings. Thus issues 1 to 4 are answered in favour of complainant.

          In the result, complaint is allowed directing the opposite parties 1 and 2 to pay an amount of `1,50,000 (Rupees One lakh Fifty thousand only )as compensation and `1,500 (Rupees One thousand five hundred only) as cost of this proceedings to the complainant within  one month from the date of receipt of this order, failing which the complainant is entitled to execute the order against opposite parties 1 and 2 as per the provisions of consumer protection Act.

                  Sd/-                        Sd/-                                Sd/-

President                    Member                                    Member

APPENDIX

Exhibits for the complainant

A1, A4, A10 & A11.X-rays

A2. Cash bills

A3. Copy of the discharge summary issued from Natgaraj Hospital

A5. Copy of hospital bill issued from Indira Gandhi co-op. Hospital

A6. Prescription of Dr.Fasil Dt.15.10.07

A7. Copy of prescription dt.17.10.07 of Dr.George

A8. Copy of the hospital bill issued from Mission Hospital, Thalassery.

A9. Copy of the receipt dt.29.10.07 for surgery charge of

       Dr.M.D.George.

A12.Copy of the lawyer notice sent to Ops

A13. Reply notice

A14. Returned notice.

A15. Prescription of Dr. M.D.George

Exhibits for the opposite parties

B1.Discharge summary issued to complainant by Nataraj Hospital, Coimbatore.

B2.Copy of invoice cum delivery Chelan of Allengers  Meddical systems Ltd.,  dt.12.9.03

B3.Copy of delivery chelan and service report

B4.Copy of audit certificate dt.6.2.10 issued by K.Ramasamy

B5.Copy of payment details of machine

Exhibits for the court

X1.Case sheet of complainant maintained in Thalassery Mission Hospital

Witness examined for the complainant

PW1.Complainant

PW2.Dr.M.D.George

Witness examined for the opposite parties

DW1.Dr.M.Natarajan

DW2.Vijayakumar

                                                /forwarded by order/

                                                  Senior Superintendent

Consumer Disputes Redressal Froum, Kannur.