Sri.K.GOPALAN: PRESIDENT<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay a sum of Rs 95,000/-as compensation for deficiency in service.<br /> The facts of the case in nutshell are as follows. The complainant approached P.T. Chacko Memorial Co-operative Hospital on 6.6.91 to have treatment for fever. The second opposite party doctor examined the complainant and directed opposite party NO.3 nurse to give an intramuscular injection. The opposite party No.3 nurse gave injection in the left shoulder of the complainant. After injection petitioner could not lift the left shoulder . There was severe pain and swelling. Subsequently complainant was admitted as inpatient in the opposite party hospital for treatment on 18.6.91. Since there was no improvement complainant was referred to AKG Memorial Hospital, Kannur. He was treated there from 21.6.91 to 26.6.91 and thereafter referrd to Koily Hospital, Kannur where he treated from 26.6.91 to 2.7.91. Since the condition of the complainant , patient worsened he was admitted to Kasturba Medical College, Manipal and there he has undergone treatment from 11.7.91 to 10.8.91. Even after prolonged treatment complainant was not able to freely move his shoulder and could not lift his left hand properly. Due to the above troubles the petitioner had suffered serious mental and physical pain and agony and also incurred heavy expenses for the treatment All these happened merely because of the negligent administration of the injection from PT Chacko Memorial Co-operative Hospital. The injection was administered by opposite party no.3, an unqualified nurse at the instruction of the second opposite party. Opposite parties 1 to 4 are jointly and severally liable for the loss sustained by the complainant. Opposite parties 1 & 4 are being the employers of opposite parties 2 & 3, they are vicariously liable for the losses sustained to the complainant. The complainant issued lawyer notice But the opposite parties sent reply contending false allegations. As a result of the negligent treatment of the opposite parties the complainant is not able to do the manual work done by him earlier and on that account he has suffered heavy financial loss as income from employment. The complainant is entitled to get a sum of Rs 2 lakhs as compensation. But the complainant limited his claim to Rs 95000/- for the purpose of filing the complaint before the then Forum. Hence this complaint for an amount of compensation of Rs 95000/-.<br /> The opposite parties 1 & 4 filed version jointly contending as follows. The complainant approached the hospital on 6.6.91 with complaint of fever and body pain. The second opposite party doctor treated him as out patient. He prescribed Paracetamol injection to the complainant. The 3rd opposite party , a qualified staff nurse ,has administered injection to the patient. The complainant again came to the hospital on 18.6.91 with complaint of pain in his shoulder. The pain has not occurred due to the injection taken by the 3rd opposite party. The complainant has alleged swelling and severe pain in his left shoulder only for the purpose of filing this complaint and to say that he has infected osteomyeletis solely due to the injection given from the hospital. If there was pain and swelling the patient ought not have waited for 12 days to come again. The averment that the needle in the syringe had pierced into the bone is not true Osteomyeletis will not cause due to giving injection on the shoulder . Since the complainant was above 25 years he is susceptible to Osteomyeletis . It is evident that there he had some infection spot or infection in the body when he approached the hospital on 6.6,.91. The quantum claimed is very excessive. Since this need of taking elaborate evidence the matter has to be referred to Civil Court. Hence prays to dismiss the complaint. <br /> The second opposite party filed version contending that the2nd opposite party doctor examined the complainant and had given prescription. The 3rd opposite party nurse gave injection to the complainant. A week after taking the injection complainant came to the hospital with the complaint of pain in the shoulder. But on examination he could not diagnose any reason for the shoulder pain.The opposite party no.2 has referred the complainant for expert treatment to AKG Memorial Hospital, Kannur. He was not aware of the progress of the treatment of patient thereafter. The 2nd opposite party could not say anything about the expenses met by the complainant. As this opposite party and the 3nd opposite party are the employees of the hospital even if any mistake is found in the treatment given to the complainant the hospital is to be held liable for the same.<br /> The 3rd opposite party filed version contending as follows. The opposite party no.3 did not know anything about the treatment given to the complainant, as an out patient in P.T. Chacko Memorial Co-operative Hospital, Iritty on 6.6.91. Though this opposite party has worked as a nurse in the hospital for the period from 6.3.90 to 5.2.92, this opposite party has not given any injection to the complainant on 6.6.91 . There was no occasion for the 2nd opposite party to instruct this opposite party for giving injection to the complinant. This opposite party is an unnecessary party to this proceedings. The complainant has not informed this opposite party that subsequent to the injection the complainant could not move his shoulder due to severe pain. This opposite party did not know anything about the treatment alleged to have undergone by the complainant in AKG Memorial Hospital, Koily Hospital and Kasturba Medical College Hospital, Manipal. Moreover this opposite party remembers complainant has an injection in PT Chacko Memorial Co-operative Hospital on 18.6.91. There is no truth in the contention of the complainant that this opposite party has given injection in a rash and negligent manner to the complainant and this opposite party is an unqualified em ployee of the Ist opposite party. In fact this opposite party was the only qualified staff nurse worked in the Ist opposite party’s hospital. When this opposite party was served with a lawyer notice , a reply stating true facts was sent to the complainant on 23.9.91.In the said notice this opposite party has specifically stated that this opposite party has not administered any injection to the complainant . But subsequent to the appearance of this opposite party in the Forum it is learned that the complainant has produced a reply notice alleged to have sent by this opposite party along with the opposite parties 1 & 2 on 1.10.91 through an Advocate by name K.A. Philip admitting the administration of injection to the complainant. Thi s opposite party never engaged Advocate K.A. Philip for sending a reply notice. Advocate Arun Peter has sent reply notice for this opposite party to the complainant. In the above circumstances , this opposite party firmly believes that the opposite parties 1 & 2 have colluded with the complainant for harassing this opposite party. The complainant has impleaded this opposite party as a party in the complaint since this opposite party being the only qualified staff nurse in the first opposite party’s hospital. The injection alleged in the complaint might have administered by one of the unqualified employees of the hospital. When this opposite party came to know about the reply notice sent by Advocate K.A. Philip on behalf ofthis opposite party,this oppositeparty has sent a registered letter to the Advocate seeking clarification. But in the reply notice the Advocate has stated that this opposite party has advised the advocate to send the notice . No prudent man will sent 2 notices alleging contradictory statements. In the above circumstances the only presumption that can be taken is that the Advocate K.A. Philip has sent the notice dated 7.10.91 to the complainant for trapping this opposite party at the instance of the Ist opposite party. This opposite party has no knowledge about the treatment alleged to have taken by the complainant and also the expenses met by him for the same. The Ist opposite party used to employ many unqualified girls under the name and style ‘Nursing Assistants’ in the hospital. Since there was no sufficient qualified nurses , the nursing assistants are being deputed for taking injections and for giving medicines to the patients at the instruction of the Medical Officer.When this opposite party objected nursing assistants from taking injection, opposite parties 1 & 2 have not given any heed to the said objection. There is no deficiency in service on the part of this opposite party. Hence prays to dismiss the complaint with cost. <br /> On the above pleadings, the following issues have raised for consideration.<br /> 1) Whether there is any deficiency in service on the part of the opposite parties?<br /> 2) Whether the complainant is entitled to get an order as prayed in the complaint?<br /> 3) Relief and cost.<br /> The evidence consists of the oral evidence of the complainant as PW1 and Exts. A1 to A74 on the side of the complainant, 3rd opposite party as OPW1 and another witness Dr. Narayana Prasad as OPW2 and B1 to B6 on the side of opposite party.<br /> This complaint was twice decided by our predecessors. First time opposite parties 1 to 4 directd to pay a sum of Rs 42000/- as compensation. But it was challenged by the Ist opposite party before State Commission and appeal was allowed.Thereafter version was filed by opposite party 1 & 4 . Petition to recall PW1 to appear before the Forum for facing cross examination of opposite party 1 & 4 was allowed. PW1 has not appered in Court since he was abroad. Finally PW1 was dispensed with. Order was pronounced on 3rd day of February 1988 directing the opposite parties 1, 3 and 4 to pay a sum of Rs 40000/-as compensation for deficiency in service and Rs 2000/- as cost. The order was again challenged before State Commission. The appeals 390/99 and 946/99 was allowed land remitted to this Forum with a direction to recall the complainant and to give opportunity to the opposite parties to cross examine and adduce evidence. The E.P. closed and O.P.554 reopened and posted for evidence. Complainant, opposite party 1 & 4 made appearance. Opposite parties 2 & 3 remained absent. The complainant examined as PW1 and marked Exts. A74, Opposite parties 1 & 4 cross examined the complainant.<br /> ISSUE No.1. <br /> P.T.Chacko Memorial Co-operative Hospital, Iritty is the Ist opposite party. The 2nd opposite party is Dr. Prasad Rao, Medical Officer. The 3rd opposite party is Lisamma Mathew and 4th opposite party is the hospital. The complainant approached 4th opposite party hospital on 6.6.91 to have treatment for fever. The 2nd opposite party examined the complainant and as per his direction opposite party NO.3 nurse gave injection in the left shoulder of the complainant. The main allegation of the complainant is that while taking injection the needle of the syringe has pierced into the shoulder bone and thereby caused Osteomyeletis and he could not move or lift his hand. Since the symptoms developed unbearable the complainant first hospitalized at PT Chacko Memorial Co-operative Hospital on 18.6.91 and from there to AKG Memorial Hospital, Kouily Hospital and finally to Kasturba Medical College Hospital, Manipal. All these troubles developed due to the negligent treatment given in the hospital when injecting the needle had pierced to the bone surface.<br /> The allegation that the complainant had taken an injection from PT Chacko Memorial Co-operative Hospital is undisputed. Opposite party NO.3 stated that it was not she who administered the injection. According to her , the injection was given by one of the half a dozen unqualified nurses working in the hospital. According to complainant, the injection was given by opposite party No.3. Opposite party 1, 2 and 4 have denied the case of opposite party no.3 that she is not the person who has administered injection to the complainant. But they admitted that 3rd opposite party is a qualified nurse working in the hospital on 6.6.91. But they denied the case of opposite party no.3 that the Nursing Assistants used to take injection with their permission.<br /> The opposite party no.3 produced Exts. B1 to B4 certificats to prove that she is a qualified nurse . Ext. B1 photocopy is the Trained Nursing Certificate and Ext. B2 photocopy is the Midwifery Certificate . Exts. B3 and B4 are the photo copies of the certificate of registration for Nurse and Midwife. These certificates prove that opposite party no.3 is a qualified nurse.The 3rd opposite party denies the case of the opposite party that opposite party no.3 is the person who administered injection to the complainant on 6.6.91. According to her injection in question was administered by unqualified Nursing Assistant working in the hospital. The 3rd opposite party denied the first notice stating that she has not engaged any advocate other than advocate Arun Peter for sending reply to the notice sent by the complainant. The reply sent through Advocate Arun Peter denied her involvement in the treatment given to the complainant. Opposite parties 1 & 4 admitted that the 3rd opposite party has left the hospital in the year 1992. Ext.A39 and A40 are the reply notices. It can be seen that Ext. A39 is sent by Advocate Arun Peter on 25.9.91 and Ext. A40 reply by Advocate K.A. Philip on 7.10.91. The opposite party no.3 left service of the hospitalonly in 1992. Here it is to be found that on receipt of Ext. A39 on 25.9.91, opposite parties 1 & 2 instructed Advocate K.A. Philip to send Ext. A40 on behalf of opposite paries 1 to 3 as the 3rd opposite party was an employee of the first opposite party then. To prove Ext. A40 steps could have been taken by opposite party no.1, 2 & 4 to examine Advocate K.A. Philip whereas opposite party no.3 enterd in the witness box and denied the case of opposite party 1, 2 & 4. The complainant also could not brought out anything by cross examination of opposite party no.3. Opposite party 1,2 and 4 have not cross examined the 3rd opposite party challenging her testimony that she has not advised Advocate K.A. Philip to issue Ext. A40 admitting that she has administered injection to the complainant. Under this circumstances there is no meaning in disbelieving the case of the 3rd opposite party that she has not given any advice to Advocate K.A.Philip for sending Ext. A40 admitting the administration of injection to the complainant.<br /> The 3rd opposite party has the case that one among the Nursing Assistants in the hospital has administered injection to the complainant on 6.6.91. But no steps were taken to prove this. There is nothing on record to say that one among the unqualified nurses administered the injection. The 3rd opposite party has not taken steps to call for concerned hospital records to prove who was deputed for the duty to administer the injection.<br /> The opposite party no.2 who was examined to prove treatment given to the complainant has adduced evidence in tune with the pleadings in the complaint that when the complainant approached him for treatment he prescribed injection. But he did not pinpoint the person who has administered the injection. If the injection was actually given by an unqualified nurse, the complainant ought to have impleaded the said nurse since it was more easy to establish the deficiency in service. Moreover there was no allegation that the complainant has any bias towards opposite party no.3. It cannot be believed that the complainant has filed a complaint at the instigation of opposite parties 1 & 4. If that be the case the complainant need not impleaded opposite parties 1 & 4 as parties to the complaint. Considering the above said facts and circumstances we are of opinion that there is no reason to disbelieve the case of the complainnt tha it is 3rd opposite party who administered injection to the complainant.<br /> The 2nd opposite party stated that as Osteomyeletis can be caused due to various reasons, it cannot be held that the complainant has suffered the above disease due to the injection given by 3rd opposite party.It is important to note that when the complainant first time examined by opposite party no.2 there was no complaint of pain in complainant’s shoulder. The complainant approached the hospital first time to have treatment for fever and not treatment for pain on his shoulder and no one has such case. But subsequent to the injection the complainant approached opposie party no.2 doctor with complaint of pain in his shoulder. But doctor could not diagnose and as a result referred to AKG Hospital. Since there was no relief from AKG Hospital complainant got discharged from there and admitted in Koyily Hospital and from there he was taken to Kasturba Medical College Hospital, Manipal.<br /> The 2nd opposite party stated by referring Ext. A3 discharge summary that complainant was treated for functional overlay from AKG Hospital. FunctionalOverlay has been explained by him as a condition which affects function of bones but not structural treatment . The third hospital Koyily has not diagnosed the disease of the complainant. Ext. A4 is the discharge certificate of Koyily Hospital which mentioned as “ shoulder girdle syndrome” The argument of the learned counsel for the opposite partie 1 & 4 that Exts. 3 & 4 will reveal the fact that complainant never fell in complication due to the alleged administration of injection has not been based on facts. Complainant stated in cross examination”<br /> <br /> <br /> What is the purpose for which the complainant had been hospitalized for these 3 days. It is quite evident that reason was pain on the shoulder of complainant subsequent to the injection. It was from Kasturba Medical College that the disease of the complainant has been diagnosed as “Osteomyeletis”. The treatment certificate Ext. A41 speaks that complainant has affected with “ Osteomyeletis “ after an intramuscular injection. Ext. A41 coupled with the evidence of PW1 leads to arrive at a conclusion that the complainant has suffered infection due to the administration of intramuscular injection by the 3rd oppo0site party which resulted in Osteomyeletis. It is also true that he has undergone treatment in various hospitals . The complainant happened to be undergone prolonged treatment through which he has suffered not only financial losses but also subjected to much physical pain and mental agony. The 3rd opposite party is a paid employee of opposite parties 1 & 4. Hence opposite parties 1, 3 and 4 are jointly and severally liable for the loss sustained by the complainant. Hence issue No.1 is answered in favour of the complainant.<br /> ISSUE Nos. 2 & 3: This is a case filed in the year 1991. The complainant has undergone treatment in 4 hospitals and was subjected to surgery. Moreover Rs 35000/- spent for the treatment. The amount spent for treatment was not challenged by opposite parties. He has taken prolonged treatment Pain and suffering also should be taken into consideration in this case. Moreovr this is a case filed in the year 1991. For the last more than 16 years complainant has been conducting his case. That also makes over burden of both financial and mental sufferings. Taking into account all these aspects we are of the opinion that the complainant is entitled to get an order directing the opposite parties 1, 3 and 4 to pay a sum of Rs 95000/- as compensation for deficiency in service. The complainant is also entitled for Rs 2500 /-as cost of this litigation. Hence issue Nos. 2 & 3 are found in favour of the complainant and order passed accordingly.<br /> In the result, the complaint is allowed directing the opposite parties 1, 3 and 4 to pay a sum of Rs 95000/-( Rupees ninety five thousand only) as compensation for deficiency in service and Rs 2500/- ( Rupees two thousand five hundred only) as cost of this proceedings to the complainant . Pay the balance amount less the amount deposited in Court within one month from the date of receipt ofthis order, failing which the complainant is at liberty to execute the order against the opposite parties 1, 3, & 4 as per the provisions of the Consumer Protection Act.<br /> Sd/-MEMBER Sd/- MEMBER Sd/-PRESIDENT<br /> APPENDIX <br /> Exhibits for the complainant<br /> A1.Photo copyof the Medical bill issued by OP No.1 dt.21.6.91.<br /> A2. “ Reference letter issued by OP No.2 dt. 21.6.91.<br /> A3. “ discharge certificate from AKG Hospital<br /> A4. “ discharge certificate from KOyili Hospital.<br /> A5. “ bill issued by KMC, Manipal dt. 4.7.91.<br /> A6. Miscellaneous bill dt. 5.7.91.<br /> A7. Inpatient bill dt. 11.7.91.<br /> A8 inpatient bill dt.11.7.91.<br /> A9. Advance bill dt.11.7.91.<br /> A10. X-rays bill dt. 18.7.91.<br /> A11. Bill for hospitalcharge dt. 25.7.91.<br /> A12. Hospital charge dt. 7.8.91.<br /> A13. Inpatient bill dt. 10.8.91.<br /> A14. Inpatient bill dt. 11.8.91.<br /> A15. Photo copy of the cash bill dt. 4.7.91.<br /> A16. “ 9.7.91<br /> A17. “ 11.7.91<br /> A18. “ 15.7.91<br /> A19. “ 16.7.91<br /> A20. “ 17.7.91<br /> A21. “ 18.7.91<br /> A22. “ 21.7.91.<br /> A23. “ 21.7.91<br /> A24. “ 22.7.91<br /> A25. “ 22.7.91<br /> A26. “ 23.7.91<br /> A27. “ 24.7.91<br /> A28. “ 24.7.91<br /> A29. “ 27.7.91<br /> A30. “ 29.7.91.<br /> A31. “ 30.7.91<br /> A32 “ 31.7.91<br /> A33 “ 1.8.91<br /> A34 “ 3.8.91<br /> A35. “ 6.8.91<br /> A36. “ 25.7.91 <br /> A37. “ 26.7.91 <br /> A38. Lawyer notice sent to OP dt. 12.9.91<br /> A39. Reply notice sent by OP NO.3 dt. 25.9.91<br /> A40. Replynotice sent by OP no.1,2 and 3<br /> A41. Photo copy of the Medical Certificate issued from Kasturba Medical College<br /> Hospital, Manipal dt. 17.8.91.<br /> A42. Bill dt. 9.7.91<br /> A43. Bill dt. 24.10.91<br /> A44. Bill dt. 24.10.91.<br /> A45. Bill dt. 21.6.91<br /> A46. Bill dt. 18.7.91<br /> A47. Bill dt. 24.9.91<br /> A48. Bill dt. 9.1.92<br /> A49. Bill dt. 27.2.92<br /> A50. Bill dt. 9.4.92<br /> A51. Bill dt. 9.1.92 <br /> A52. Bill dt. 9.1.92 <br /> A53. Bill dt. 9.4.92<br /> A54. Bill dt. 24.9.92<br /> A55. Bill dt. 9.9.92<br /> A56. Bill dt. 23.4.92<br /> A57. Bill dt. 27.5.92<br /> A58. Bill dt. 6.6.93<br /> A59. Bill dt. 3.6.93<br /> A60. Bill dt. 7.6.93<br /> A61. Bill dt. 7.6.93<br /> A62. Bill dt. 27.5.93<br /> A63. Bill dt. 9.6.93<br /> A64. Bill dt. 4.3.93.<br /> A65. Bill dt. 27.5.93<br /> A66. Bill dt. 4.3.93<br /> A67. Bill dt. 27.10.94<br /> A68. Bill dt. 4.3.93<br /> A69. Train ticket dt. 30.1.95<br /> A70. Slip no. 268733 issued by Kasturba Hospital bill dt. 30.1.95<br /> A71. Cash memo dt. 30.1.95<br /> A72. Prescription issued by Dr. Saravanan<br /> 73. Photo copy of Hisopathology report <br /> A74. Judgement in WP© No. 27393 of 2006(J) of Hon: High Court of Kerala.<br /> Exhibits for the opposite party<br /> B1. Copy of trained nurses certificate <br /> B2. Copy of Midwifery certificate <br /> B3. Copy of certificate of registration for Nurse<br /> B4. Copy of certificate of registration for midwife<br /> B5. Copy of OP crd issued by OP.<br /> B6. Original OP card issued by OP<br /> Witness examined for the complainant<br /> PW1. Complainant<br /> Witness examined for the opposite party<br /> OPW1. Lisamma Mathew.<br /> OPW2. Dr. Narayana Prasad. <br /> Forwarded/by order <br /> <br /> SENIOR SUPERINTENDENT<br /> <br /> <br />