IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 12th day of May, 2010. Present : Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) O.P. No. 329/2001 (Filed on 16.10.2001)Between: Sanal Pankaj, Minor, aged 14, represented by his father and guardian Pankajakshan, residing at Neethi Bhavan, Anandappally P.O., Pannivizha, Adoor. (By Adv. K.G. Muraleedharan Unnithan) .... Complainant. And: 1. M/s. Mar Gregorious Memorial- Muthoot Medical Centre, Kozhencherry, represented by the Chief Executive Officer. (By Adv. G.M. Idiculla) 2. Dr. Ajith George, Orthopaedic Surgeon, Mar Gregorious Memorial- Muthoot Medical Centre, Kozhencherry. (By Adv. P.K. Mathew) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The case of the complainant in brief is as follows: The complainant, a minor sustained fracture femur right upper 1/3 on 07.10.2000 due to a fall, while he was studying in the 7th standard at Catholicate High School, Pathanamthitta. The complainant’s father was working in New Delhi and hence the complainant was residing with his grand mother at Variyapuram. Immediately after the incident, he was taken to the first opposite party hospital where he was treated as inpatient by the second opposite party. On 09.10.2000, open reduction and internal fixation with dynamic compression plating hip spica was done on his body and he was discharged on 19.10.2000 with advice for review on 30.11.2000. 3. Subsequently, he was admitted as inpatient in the first opposite party hospital for Physiotherapy and he continued there till 06.01.2001 and discharge with advice to continue exercise at home. He was further advised to come for review on 13.02.2001, on which date the complainant turned up and underwent examination. Later, the complainant developed uneasiness at the fractured portion, which resulted in pain, and swelling and he was again taken to the hospital on 13.03.2001. It was diagnosed by the second opposite party that the complainant was suffering haematoma right thigh posterio lateral region lower 1/3 and another surgery was done. But the complainant did not show any improvement in his condition. Pus began to ooze out continuously from the fractured portion and day-by-day his condition worsened. The second opposite party was callous in his attitude while the complainant was wriggling with pain. Finally, the second opposite party advised the complainant’s parents to take him somewhere and he was discharged on 24.03.2001. Thereafter, the complainant was taken to New Delhi by his father and on 03.04.2001; the complainant was taken to Safdarjang Hospital, New Delhi and treatment commenced on that day. The complainant’s condition was so pathetic. He was unable to walk since 13.03.2001. He became thin and pale. 4. The treatment at Safdarjang Hospital helped to improve his condition. It was advised by the doctors that he can undergo surgery only after regaining health. Thereafter, an operation was conducted there on 27.08.2001 and he was discharged on 03.09.2001. The treatment continued in that hospital till 11.09.2001. The complainant cannot walk and he can move only with the help of crutches. The unwarranted treatment by the opposite parties had made him permanently disabled. The treatment administered by the second opposite party was not at all necessary in the instant case. Open reduction and internal fixation was done by the opposite parties to plunder money. The chance of risk in open reduction and internal fixation is higher than that of closed manipulation. It is not advisable and not necessary in the cases of patient’s of tender age. The unfair approach of the opposite parties for monetary gains has ruined the life of the minor complainant. The complainant’s father had to dispose of his property in New Delhi for want of funds. The medical bill imposed on the complainant by the opposite parties is exorbitant. The acts of the opposite parties is deficiency in service, which resulted in an everlasting injury to the complainant making him disabled, and the opposite parties are liable to compensate the complainant. Hence, this complaint for realising Rs.4 lakhs with interest @ 12% per annum under various heads along with cost of Rs.1,000/- from the opposite parties for their deficiency in service. 5. The opposite parties 1 and 2 filed separate versions. The main contentions of the version of the first opposite party is as follows: The second opposite party is a Consultant of the first opposite party in Orthopaedic Department. The first opposite party is Specialist Hospital with all modern facility for doing orthopaedic and other surgery. There is no latches from the part of the first opposite party in giving treatment to the complainant. The version of the second opposite party regarding the treatment in this case may be read along with this version. The first opposite party has no role in the treatment other than giving the best facility to the second opposite party. With the above contentions, the first opposite party prays for exonerating them from any liability. 6. The second opposite party filed his version with the following contentions: The second opposite party admitted the treatment of the complainant till 24.03.2001. The complainant came to the Casualty of the first opposite party hospital on 07.10.2000 with history of fall. X-ray was taken which showed a long spiral fracture sub trochantric region of right femur. The patient was admitted to the ward and an above knee skin traction was given on a BB splint. Analgesics and antibiotics were started. The treatment options were explained to the complainant and his relatives opted for surgery. After obtaining a written consent, under all aseptic precautions with utmost care and caution, surgery-open reduction and internal fixation with dynamic compression plate, was done on 09.10.2000. Post operative antibiotics and other medicines were given. Patient did not have any post-operative complication. Sutures were removed on 18.10.2000 and a hip spika cast was given and the patient was discharged on 19.10.2000. Patient was advised to do quadriceps exercises, toe and ankle movements and to take calcium and vitamin tablets and to come for follow up on 30.11.2000. On 30.11.2000, the patient came and he did not have any complaints. X-ray of right femur was taken and it showed early union. Patient was advised to continue the spika and came for follow up after 4 weeks. On 02.01.2001, patient came for follow up and he did not have any complaints. The patient was admitted and hip spika removed. X-ray of right femur was taken. Knee joint movements and partial weight bearing on right lower limb was started. Patient co-operated well for the above procedures and he was discharged on 06.01.2001. An X-ray was taken before discharge to check the union and implants and there was no signs of failure. Patient was advised to come for follow up after 4 weeks. On 13.02.2001, patient came for follow up and he did not have any complaints. The patient was advised to come after 4 weeks for follow up. 7. While so on 01.03.2001, patient came with pain and swelling of right thigh lower half posterior region. On examination, there was swelling, tenderness, redness, and local increase of temperature. Blood routine examination showed ESR 96mm/1st hour, TC 13200 cells and X-ray showed small lytic lesion. All the above suggested infection and patient was put on higher antibiotic and vitamin for 5 days and advised to take bed rest. On 06.03.2001, patient came back and he was better. The dose of antibiotic was decreased and he was advised to come for follow up after 5 days. On 13.03.2001 the patient came back with pain and swelling and was admitted. Incision and drainage was done on the same day. The patient was put on higher IV antibiotics and daily dressing. The patient improved and the wound started to heal. On 23.03.2001, secondary suturing was done and the patient was discharged on 24.03.2001 and advised to come for follow up on 27.03.2001. But afterwards, patient did not come to the hospital. The second opposite party denied the allegation that he had advised the patient’s parents to take him somewhere and he had not given any reference letter. The second opposite party is not aware of the treatment of the patient during the period from 24.03.2001 to 24.08.2001. The complainant is put to strict proof of the treatment of the patient during that period. The allegation that the second opposite party had given unwarranted treatment is false. The allegation of disability is false. The treatment at Safdarjang Hospital is for a short period and POP cast was not given to the patient. Hence it is evident that there was bony union and complainant was allowed to walk with support. The allegation that the treatment administered by the second opposite party was not at all necessary in the instant case and open reduction and internal fixation was done by the opposite parties to plunder money are false and baseless. The second opposite party had taken utmost care and caution in the treatment. The patient was treated according to the guidelines given in Standard Text Books of Orthopaedics. Open reduction and internal fixation was indicated for the diagnosed conditions of the patient. Sign of infection was noted after 5 months of the surgery. Prompt treatment was given to the patient till 24.03.2001, thereafter lost follow up. It is seen that patient did not have any effective treatment from 24.03.2001 to 24.08.2001. The irregular and improper treatment during the above 5 months period aggravated the disease process of the patient. Osteomylitis is very common in children even without surgery or trauma. The infection occurred only about 5 months after the surgery. When infection was suspected, immediate and prompt treatment was given to the patient. Hence there is no negligence on the part of the second opposite party and the second opposite party is not liable to compensate the complainant. 8. Above of all, the second opposite party is only an employee of the first opposite party, which is a multi purpose hospital with superspeciality facilities. Therefore, the liability cannot be fastened upon the second opposite party if at all, if any found against the second opposite party, under necessary legal principles in this regard. With the above contentions, the second opposite party prays for the dismissal of the complaint against him with compensatory cost of Rs.10,000/- being this complaint is frivolous and vexatious. 9. On the basis of the above pleadings, the following points were raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Cost? 10. The evidence of this case consists of the oral depositions of PWs.1 to 3 and DW1 and Exts.A1 to A5, B1 and B2 and X1. After closure of evidence, both sides were heard. 11. Point Nos.1 to 3: The complainant’s allegations against the opposite parties is that the treatment provided by the opposite parties was negligent and improper and thereby infection is affected at the fractured portion of the complainant’s leg and he had sustained physical disability and suffered a lot. According to the complainant, the treatment method, internal fixation and open reduction applied to the complainant by the opposite parties was unwarranted in the complainant’s case. Such a treatment was given to the complainant only for plundering money from the complainant. The main cause of the complications to the complainant was due to the said treatment. If the complainant was given normal method of treatment, the complainant would not have developed any complications. 12. In order to prove the complainant’s allegations, the complainant, his father and one doctor from Medical College, Thrissur adduced oral evidence as PWs.1 to 3. Apart from the oral evidence of PWs.1 to 3, 5 documents were also produced which are marked as Exts.A1 to A5. Ext.A1 is the discharge summary dated 19.10.2000 issued by the opposite party in respect of the treatment of the complainant from 7.10.2000 to 19.10.2000. Ext.A2 is another discharge summary dated 06.01.2001 from the said hospital for the treatment of the complainant from 02.01.2001 to 06.01.2001. Ext.A3 is another discharge summary from the said hospital for the treatment of the complainant from 13.02.2001 to 24.03.2001. Ext.A4 is the letter No.2-19/2004-MR dated 06.03.2004 issued from Safdarjang Hospital, New Delhi. Ext. A5 is the Out Patient Ticket dated 28.12.2001 issued from Medical College Hospital, Kottayam in the name of the complainant. 13. On the other hand, the contention of the opposite parties is that what all treatments given to the complainant from 07.10.2000 to 24.03.2000 were proper and accepted in medical science. The alleged complications to the complainant is not due to the negligence of the opposite parties. But might have been due to the non-compliance of the advices given by the opposite parties at the time of discharge of the complainant from the hospital. According to the opposite parties, the complainant had no complaints against the treatment till the last discharge-dated 24.03.2001. Thereafter, the complainant had not turned up for the follow up treatments. Instead, the complainant was taken to New Delhi by his parents for their convenience and they have admitted the complainant at Safdarjang Hospital, New Delhi on 24.08.2001. The complainant was subjected to open reduction and internal fixation on 09.10.2000 and discharged on 19.10.2000 as he was fit for discharge. His condition was perfectly right on subsequent visits to the hospital in compliance to the advice of the opposite parties. But the complainant came to the hospital on 13.03.2001 with pain and swelling on the fractured portion. At that time also, the opposite parties have given proper treatments based on the diagnosis and he was discharged on 24.03.2001 with advice to come for follow up check ups. But he never came to the hospital thereafter. According to the opposite parties, the complainant was perfectly all right till 24.03.2001 and the infection was affected to the complainant after 5 months from the date of surgery. Subsequent to the discharge on 24.03.2001, the complainant was again admitted for treatment at Safdarjang Hospital, New Delhi only on 24.08.2001. So according to the opposite parties, the complication to the complainant is not due to the treatment of the opposite parties. Complainant has not adduced any evidence to show that he had followed the advices of the opposite parties from 24.03.2001 to 24.08.2001 and whether he had undergone any treatment during this period. Moreover, the treatment records from Safdarjang Hospital, New Delhi does not reveals any negligence in the treatment by the opposite parties. 14. In order to prove the contentions of the opposite parties, the second opposite party filed a proof affidavit and on the basis of the proof affidavit, the second opposite party was examined as DW1 and the documents produced by the second opposite party was marked as Exts.B1 and B2. Ext.B1 is the IP records in respect of the complainant’s treatment at the first opposite party hospital and Ext.B2 is the Out Patient record in respect of the complainant’s treatment at the first opposite party hospital. 15. Apart from the exhibits marked in evidence for the parties, photocopy of the treatment records in respect of the treatment of the complainant at Safdarjang Hospital, New Delhi sent by the said hospital authorities as per the direction of this Forum is marked in evidence as Ext.X1. 16. On the basis of the contentions of the parties, we have perused the entire materials on record. On a perusal of the materials on records, it is seen that there is no dispute between the parties with regard to the admission and treatment of the complainant at the first opposite party hospital as inpatient and out patient from 07.10.2000 to 24.03.2001. The main allegations of the complainant against the opposite parties are as follows: (a) Open reduction and internal fixation done by the second opposite party was unnecessary in the case of the complainant. (b) The medical bills imposed on the complainant were exorbitant. (c) The treatments given to the complainant was negligent which resulted physical disability and other sufferings to the complainant. 17. This is a case of medical negligence and in such cases expert evidence is highly necessary for the just and proper disposal. But in this case, the complainant has not adduced any expert evidence for substantiating the complainant’s allegations. The settled position of law in selecting the method of treatment is to be decided by the concerned doctor and he is the competent person to select the method of treatment to a patient considering the circumstances and conditions of the patient, if there are more than one method of treatment for a particular ailment. Here, in this case, there is no dispute regarding the qualifications of the second opposite party. The complainant had not adduced any cogent evidence to show that the method of treatment adopted by the second opposite party was unnecessary in this case. So the allegation of the complainant against the second opposite party in this regard is not sustainable. With regard to the allegation of exorbitant medical bills, the complainant has not adduced any evidence to show that the bills charged by the opposite parties for the complainant’s treatment is exorbitant. The other allegation that the treatment given by the second opposite party was negligent, which resulted in the complications to the complainant, is also not supported by any expert evidence. In this connection, it is pertinent to note that the alleged infection and further complications are noticed after a period of about 5 months from the date of surgery. No evidence is brought before this Forum to show that the said complications are the consequence of the surgery and the treatments given to the complainant by the second opposite party. As per Exts.A1 and A2 discharge summary and Ext.B1 treatment records, the complainant was perfectly all right till the first week of March 2001. There is no evidence to show that under what circumstances, the complainant had developed the alleged complications after a long period from the surgery. Ext.X1 treatment records from the Safdarjung Hospital, New Delhi also does not discloses anything that supports the complainant’s case as the prescription are not clear and in the absence of the examination of the author of Ext.X1. Moreover, in this case, the complainant failed to examine any expert in the field with available medical records for proving their case. The oral deposition of PW2 an orthopaedic expert is also not helpful to the complainant’s case. 18. From the overall facts and circumstances and the available evidence and in the absence of any expert evidence, we could not come to a conclusion that there is deficiency of service from the part of the opposite parties. The complainant had failed to prove his case with cogent evidence. In the circumstances, we find that this complaint is not allowable and is liable to be dismissed. 19. In the result, this complaint is dismissed. No cost. Declared in the Open Forum on this the 12th day of May, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Pankajakshan PW1(A) : Sanal Pankaj PW2 : Sanal Pankaj PW3 : Dr. P. Asokan Exhibits marked on the side of the complainant: A1 : Discharge summary dated 19.10.2000 issued by the Muthoot Medical Centre, Kozhencherry. A2 : Discharge summary dated 6.1.2001 issued by the Muthoot Medical Centre, Kozhencherry A3 : Discharge summary dated 24.3.2001 issued by the Muthoot Medical Centre, Kozhencherry. A4 : Letter No.2-19/04-MR dated Nil. issued by the Chief Medical Officer (MRD), Safdarjang Hospital, New Delhi to the Senior Superintendent, CDRF, Pathanamthitta. A5 : Out patient ticket issued by the Medical College Hospital, Kottayam. Witness examined on the side of the opposite parties: DW1 : Dr. Ajith .C. George Exhibits marked on the side of the opposite parties: B1 : Medical Record B2 : Outpatient Record. Court Exhibits: X1 : Photocopy of the admission and discharge record issued by the Safdarjang Hospital, New Delhi. (By Order) Senior Superintendent. Copy to:- (1) Pankajakshan, Neethi Bhavan, Anandappally P.O., Pannivizha, Adoor. (2) The Chief Executive Officer, M/s. Mar Gregorious Memorial Muthoot Medical Centre, Kozhencherry, (3) Dr. Ajith George, Orthopaedic Surgeon, Mar Gregorious Memorial- Muthoot Medical Centre, Kozhencherry. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
