By Smt.  Bindu. R, President :-

This  Complaint is  filed under section 12 of the Consumer Protection Act 1986 alleging Medical Negligence by Suneera, W/O Shabeer Ali, ParambanVeedu, Rippon, Thalakkal, Rippon P.O, Vythiri Taluk, Wayanad District, for her minor  daughter Minha Fathima, aged 6 years (as on 2017).  At first  the complaint was filed only against the hospital authorities and later  Opposite Parties  2 & 3 were impleaded in the party array.

2. Statement of facts, as per the amended complaint, in brief are as follows:-  The Complainant alleges that Minha Fathima, the minor Complainant, had fell down on 7/1/2016 at about 7:00 PM and caused injury in her left elbow. She was taken to the 1^st   Opposite Party hospital where she was examined in the causality by the doctor who are employees of the 1^stopposite party. They took X-ray and bandaged the hand. The ortho pediatrician  examined the miner Complainant and the X-ray taken and stated that there is no fracture but there is only inflammation and bandaged  the hand by using Plaster of Paris. The 1^st opposite party charged an amount of Rs.1000/- for the treatment and  also given pain killers for reducing the pain.

          3. Even though the medicine was taken as instructed by the doctor, the pain was not redressed and therefore the minor Complainant was again taken to the hospital on 14/01/2016. Then, from Ortho department, Dr. Vimalan and Dr.Varun, the 2^nd opposite party  in the complaint, examined the minor Complainant and removed the bandage and covered with the plaster and suggested review after 2 weeks for removing the plaster.  Accordingly on 30/1/2016 when the minor Complainant was taken to the hospital, the second Opposite Party  had removed the plaster. At that time also the minor Complainant had severe pain and inflammation and was not possible for bending or stretching the hand. Doctor advised that the pain shall be redressed in due course, on taking exercises and advised to do physiotherapy. Due to the pain, the minor Complainant was unable to do the exercises and hence on  9/2/2016 she was taken to the hospital and the second opposite party suggested physiotherapy in the hospital. Two three times it was done in the hospital and according to the Complainant, the minor Complainant was not interested to attend the physiotherapy in the hospital and hence the same was done in her residence.

4.  Since there was no relief, the minor Complainant was  taken to the 1^st opposite party hospital to see Dr. Mohammad Tauheed on 6/4/2016. He again advised to take X-ray and CT Scan which was also done by the Complainant. It was informed by Dr. Mohammad Tauheed and Dr. Manjunath that there finds some complications in the scan report. As  per their advice, the minor Complainant was taken to Dr. Gopinathan on 7/4/2016 who is an ortho specialist at Calicut. After examining the patient, Dr. Gopinathan stated that there is fracture in the elbow and piece of the bone was stucked in it.  According to him,  if it was detected at the time of injury or in the near time, surgery was possible and nothing was feasible at that time. Subsequently on 8/4/2016 the fact was informed to the 1^st  opposite party hospital and they instructed to meet the doctor. Thus  on 13/4/2016 the minor Complainant was taken to Dr. Mohammad Tauheed and Dr. Manjunath.  According to them, it is only MYOSITIS OSSIFICANS due to the clotting of blood. They have prescribed INDOMETHACIN 25MG which was taken for one month. While thus on 24/7/2016, the Complainant  had met Dr. Mohammad Tauheed and it felt  like that he was trying to hide something. Therefore the Complainant met Dr.Jerry, who is the head of the ortho department on 11/05/2016, after informing to Sri Joby the PRO of the hospital. The minor Complainant was again examined by a team of doctors under Dr. George Itty on 12/5/2016 but none of them were ready to take the responsibility of negligence caused in the treatment. The patient was again taken to the 1^st Opposite Party hospital on 13/06/2016. Thereafter no amount was received from the Complainant for the treatment apart from issuing bills. On 8/7/2016 the minor Complainant was taken to the Medical College hospital Calicut and the doctors after conducting examination opined  in par with the opinion of   Dr. Gopinathan. Even though a complaint was filed before DLSA, the same was closed as there was no response from the Opposite  Parties.

5. Hence this Complainant alleging that the elbow of  the minor child is not in a position to bend or stretch due to the negligence happened from the side of the doctors of the 1^st opposite party in the medical treatment. Hence the life of the girl who is the minor Complainant, is in darkness due to the improper treatment and therefore the Complainant seeks for compensation of Rs.20,00,000/- for the deficiency of service from the Opposite  Parties along with other  reliefs.

          6. Upon notice from the Commission all the three Opposite  Parties appeared and filed their versions.

7. The first Opposite Party has stated in their version that the minor Complainant was brought into the emergency department of the 1^st Opposite Party hospital on 07.01.2016 at 8:45 PM saying that the patient  had fallen down from  bed.  On examination in the emergency department, swelling and tenderness of the right elbow (it is thus stated in the version)  without paying full range of movement were found. The X-ray of the elbow with fore arm was taken and the case was seen by Dr.Varun, the orthopedic surgeon on call. In the X-ray he noticed that there was no obvious fracture of bone. The Complainant was aged below five years and so the position of CRITOE (Capitellum, Radial head, Internal epicondyle, Trochlea, Olecrenon and External epicondyle) where rather in a fragment status, according to the normal anatomy for the age. At this age the bones appear as separate ossification centres which are covered by cartilages. Since the cartilages are not visible in X-rays, they will appear in X-ray as separate pieces. So in X-ray, even if there is a fracture it won’t be obviously visible. But being an expert in orthopaedic, Dr.Varun, after noting down the clinico-radiological findings, re-positioned the left elbow after Closed Manipulation and Reduction (CMR) and personally applied plaster of Paris(POP) above elbow back slab with supporting arm sling in view of immobilizing the left elbow. He has also noted down in the emergency case record that there is “ no obvious evidence of fracture”. But the child needed follow up as in the case of a fracture. After one week, as suggested the Complainant came to the orthopedic O.P.D on 14-1 2016 with a complaint of pain and swelling of the left elbow. The 1^stopposite party further states that, at this stage Dr.Varun has noticed that the Complainant had the smell of  ayurvedic oil and on examination it was found that the Complainant has undergone some indigenous massage  at Erumad, as admitted by the Complainants. Further Dr.Varun advised them to put the plaster of Paris cast (stiff mode). After two weeks when she came again and after removing the plaster, the things were found normal. Then Dr.Varun advised the patient to have physiotherapy at the hospital. It is contented that the Complainant had not complied with the advice of the doctor and had undergone local indigenous massage and came back to orthopedic OPD only on 6/4/2016. It is stated by the 1^stopposite party that the indigenous massage has worsened the status of the left elbow, which was evident from the decreased range of movements, swelling and warmth which were not present initially. At this juncture Dr.Varun explained about the chances of developing Myositis Ossificans following the indigenous massage done by the Complainant. Even then the Complainant was advised to see Dr. George Itty, the Head of the Department, they said some lame excuses and gone back. The minor Complainant came to the Orthopedic Department again  on 30/4/ 2016 and on examination by the experts of the Orthopedic Department, it was found that the Complainant has developed Myositis Ossificans, which was only due to the negligence of the Complainant including noncompliance of medications. It is not known whether the minor Complainant has taken the medicines as prescribed.

8. On 12/5/2016 the Complainant was examined by  Dr. George Itty, at the request of the Complainant, and found that the minor Complainant is having Myositis Ossificans which has happened only due to the negligence on the part of the Complainants because of the local indigenous massage and noncompliance of medication prescribed by the doctors of the opposite party. According to the opposite party the indigenous massage can  result internal bleeding, alter the dynamics of the joint and increases, the chance for developing Myositis Ossificans. It is only due to the noncompliance of the instructions of the doctors of the 1^stopposite party and not because of the negligence in the treatment given by the experts of the 1^st opposite party as alleged by the Complainant, Myositis Ossificans developed in the instant case. The opposite party and its expert doctors had not deviated from the accepted medical standards of care and so there is no negligence on their part. The 1^st opposite party again contented that there is no chance to believe that Dr. Mohammad Tauheed had referred the Complainant to Dr. Gpinathan on 7/4/2016 since the Opposite  Parties having their own super speciality hospitals. Finding out the reason of the noncompliance of the directions issued by the doctors of the 1^st Opposite Party and also alleging that the Complainant had undergone indigenous treatment, the 1^st opposite party states that they are no way responsible for the deficiency of service or negligence as alleged in the complaint.

9. The 2^nd opposite party in his version stated that the patient was taken to him on 7/1/2016 in the emergency department complaining pain and restricted movement of left elbow. He had seen the X-ray and examined the patient and no obvious evidence of fracture was seen. As per medical etiquette, proper treatment was advised by putting plaster of paris with sling and given medicines to reduce swelling and pain. The mother of the minor Complainant and the relatives were made to understand and convinced that the movement of the limb shall be done.  Full length of POP was not advised. The POP was casted after re-positioning the left elbow after Closed Manipulation and Reducion (CMR). The 2^nd opposite party further alleges that on 14/01/2016 when the patient was taken to him, there was smell of indigenous medicine and on enquiry it was fairly admitted by the Complainant that the minor Complainant was taken to a local massager at Erumad. He explained to the Complainant that the local massaging aggravated Myositis Ossificans which has resulted the consequential dangers. All the other statements in the version filed by the 2^ndopposite party is either repetitions or explanations of that furnished by the 1^st opposite party. It is stated that the 2^nd opposite party has obeyed the standards prescribed by law during the treatment given to the Complainant. There was no deficiency or deviation in the said matter. The alleged advice given by the Dr. Gopinathan was not communicated to the 2^ndopposite party and if the said Doctor has adviced as alleged in the complaint, that is against the accepted  medical standard and against medical ethics. It is stated by the 2^nd opposite party that he left the 1^stopposite party hospital and the subsequent incidents were not known to him. The 2^nd opposite party is not at all liable to pay compensation since the Complainant has acted against the medical advices given by the Opposite  Parties .The amount claimed is highly exhorbitant and also stated that the 2^ndopposite party is an unnecessary party in the case and prays for dismissal of the complaint.

10. The 3^rd Opposite party adopting the contentions of Opposite  Parties   No.1 and 2, stated that they have given proper treatment with proper diagnosis.  The complaint caused to the minor Complainant was only due to the negligence and self medication on the part of the Complainant. The treatment taken from the local indigenous and primitive source that too from unexperienced and unqualified persons has caused the alleged complaint of the minor Complainant. 3^rd opposite party contented that the amount claimed is highly excessive even though there is coverage of insurance policy subject to the terms and conditions of the policy No.1022002716 P 111449802, and prays for dismissal of the complaint.

11. The Complainant filed proof affidavit. The Complainant was examined as PW1 and Exts.A1 and A2 series were marked. From the side of the Opposite  Parties OPW1 & 2 were examined and marked  Exts.B1 to B3.The report from the Medical Board  were marked as X1 and X2.

12. Heard both sides and perused the documents in detail.

13. From the above, the following are the points to be analysed by the Commission.

1. Whether the Complainant had sustained any deficiency of service or unfair trade practice from the side of the Opposite  Parties?
2. Whether the Complainant is eligible to get compensation  and if so the quantum of compensation?
3. Cost of the proceedings.

14.  Point No.1:-  The Commission has made a very thorough probe into the over all aspects of the case. The doctors who had examined the minor Complainant had not  exercised  the proper care and thereby committed deficiency of service and  negligence in services which is the nutshell of the case.

15. While on going  through the records and  after considering the available  evidences in detail, it is seen that  the Complainant had not produced any specific documents to show that the cause of action occurred due to the deficiency of service and negligence  from the side of the Opposite  Parties 1 and 2. From the oral evidence of the Complainant it is revealed that the minor Complainant had undergone treatment  of other doctors besides  the doctors of the 1^st opposite party. On the other hand the Opposite Party also had not established with any substantiating  evidences  that the minor Complainant had undergone indigenous treatment and that is the reason for the alleged stage of  affair with the support of any documentary evidence.  During  cross examination the Complainant admitted that the physiotherapy, as suggested by the Opposite Party was done in the hospital only for 3 days and thereafter  it was done in her residence.

16. As far as the oral evidence of the Opposite  Parties are concerned, OPW1 is the Senior Law Officer of 1^st opposite party.  During the cross examination, he admitted that he has no control over the treatment done by the doctors and he had only knowledge with the facts which are revealed from the records. OPW2 is the orthopaedic surgeon.  According to him, normally pain will be reduced after plastering but in the instant case, the patient was taken to the hospital after 7 days alleging severe pain. Then  the plaster was removed and replastered. The patient was advised physiotherapy. As per the records the patient was not present in the hospital thereafter. It is not correct to say that the disability is due to the negligence of the Opposite  Parties. It is also stated by OPW2 in Re- examination that the medical records are kept in separate department in the hospital and the doctors have no access to the said department as per protocol.

17. The argument of the Complainant that the minor Complainant had not received proper treatment is substantiated by the foundation that Dr. Gopinathan had stated after examination of the patient on 07/04/2016, that there is a piece of born which is stuck in the elbow. According to the said Doctor, the same could have  been cured by operation either at the time of injury or at a near date. The Complainant emphasize on the finding of Dr. Gopinathan on 07/04/2016 and thereby alleges that it is due to the negligence from the part of the opposite  party and its doctors, that the minor Complainant had sustained the deficiency and thereby the minor Complainant had became handicapped.  This is the major argument raised by the Complainant. The case put forward by the Complainant is that it is on the advice of Dr. Muhammed Thouheed and Dr. Manjunath of the 1^st Opposite party hospital, Dr. Gopinathan was consulted and had given medicines to the minor Complainant.  During the cross examination the Complainant admitted that Dr. Muhammed Thouheed and Dr. Manjunath had not given their opinion in writing and also not given a reference letter to see Dr. Gopinathan. It is also admitted by the Complainant that  the minor Complainant was taken to the Calicut Medical College and she is not remembering the name of the doctor who examined the minor Complainant. Again the Patient was taken to the opposite party hospital on 13/04/2016. Dr. Muhammed Thouheed and Dr. Manjunath examined her and gave medicines. According to PW1, the medicines given by Dr.Gopinathan was stopped on getting medicines on 13/04/2016 from the 1^stopposite party hospital.

18. At the same time, the Opposite Party  insisted that after providing proper medication and after doing all what is necessary for curing the ailment of the minor Complainant, they had given advice to administer medicine and also to carry out physiotherapy in the hospital. The Complainant without properly complying the directions issued by the Opposite  Parties, had taken indigenous treatment from unqualified and unexperienced person. During cross examination, the Complainant admitted that the physiotherapy was done only for 3 days .  It is also admitted that she heard about the vaidhyan at Erumad. To the question why the minor Complainant was not taken to the hospital for the review as adviced by the doctors, she answered that she had some financial difficulty at that time, which is a new case put forward by the Complainant in the box. It is the case of the Complainant that it is because of the negligent treatment of the opposite party hospital, the disableness of the minor Complainant was happened. But there is no evidence to prove the said allegation, apart from the interested testimony of the Complainant. Even though, she alleged about the opinion of other doctors, no body was examined to prove the allegation. Initial burden is cast on the Complainant to prove her case which is not seen  discharged by the Complainant.

19. At this stage this commission has to consider the judgments  pronounced by the Apex Courts with respect to  medical negligence. As per the decision reported in “Bolam Vs. Friern Hospital Management Committee reported in 1957(2) All E.R.118,” negligence is explained as failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do and if that failure of doing of that act results in injury, then there is a cause of action.” His Lordship  also explained on the basis of a Scottish case, Hunter V. Hanley (1) (1955)S.L.T.213, that “The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of,  if acting with ordinary care”. Thus a doctor cannot  said to be guilty if he has acted in accordance with a practice accepted as proper by a responsible body of medical men, skilled in that particular field. The Apex Court in Syad Akbar V. State of Karnataka (1980 KHC 527) opined that where negligence is an essential ingredient of the offence, the negligence is to be established.

20. It is a matter of expertise and specialization to come to a conclusion as to which of the argument is correct. Since skilled, experienced and qualified expert’s opinion is essential, to segregate husk and paddy, the matter was referred to the Superintendent of District Hospital, Mananthavady.  As per letter no.MRD 9061/17 dated 26/06/2018, District Hospital, Mananthavady proposed that the assessment of medical negligence if any is best evaluated by a panel of expert specialists (Ortho) from a higher institution, that is Medical College. Therefore, this commission issued direction to the Senior Superintendent, Government Medical College Hospital, Calicut, on 18/12/2018 to constitute a Medical Board and to report compliance on medical negligence. The report of the Chairman of the medical board, Medical College Hospital, Calicut is marked as Ext.X1 and X2  in this case. Nothing has been furnished in these reports regarding the medical negligence on the part of the Opposite  Parties. In Ext X1 report  dated 21/10/2019, it is  reported that the minor Complainant is having partial ankilosis (L) elbow with fore arm fixed in semiprone positition and no supination and pronation Elbow flexision 10-90% and also reported that she is temporarily disabled to the extent of 17% and at present she needs re-assessment after 5 years. (In this report, it is seen that the word  “permanently” is  scored off and the word   “temporarily” is written  above that and the words “she needs re-assessment after 5 years”  were added).  In X2 report dated 22/07/22 nothing is mentioned   regarding the medical negligence. Here also the reason for the alleged cause or whether it happened due to the treatment of Opposite Party doctors has not been made out.

21. In the above circumstances, the commission found that the Complainant has not proved her case of negligence on the part of the Doctors and hence  cannot come to an inference without doubt that the handicap if any occurred to the minor Complainant is because of the negligence and deficiency of service from the part of the 1^st opposite party and its doctors including the 2^nd opposite party. Therefore point No.1 is found against the Complainant.

22. Since point No.1 goes against the Complainant, the commission do not have analysed point No.2 and 3.

 In the above circumstances, it is proved that there is no merit  in the  case of  Complainant and  the complaint is only to be dismissed.  Hence CC No.107/2017 is dismissed.

Dictated to the Confidential Assistant, transcribed by him and corrected   by   me   and  pronounced  in  the  Open  Commission on this the   30^th  day of March  2023.

          Date of filing:17.05.2017.

                                                                             PRESIDENT:  Sd/-

                                                                             MEMBER     :  Sd/-

                                                                             MEMBER     :  Sd/-

APPENDIX.

Witness for the Complainant:

PW1.           Suneera. V.S                            Private Employee.         

Witness for the Opposite Parties:

OPW1.        Zalazi. K.                        Manager (WIMS)

OPW2.        Dr.  Ajith. K                             Doctor.

Exhibits for the Complainant:

A1(a)           Bill.                                          dt:07.01.2016.

A1(b)          Bill.                                          dt:14.01.2016.

A1(c )         Bill.                                          dt:30.01.2016.

A2(a)          Copy of Orthopaedic Note.      dt:30.01.2016

A2(b)          Copy of Orthopaedic Note.      dt:09.02.2016

A2(c )         Copy of Progress Notes.           dt:08.04.2016.

A2(d)          Copy of Progress Notes.           dt:27.04.2016.

A2(e)          Copy of  Progress Notes.                   dt:11.05.2016.

A2(f)           Copy of Progress Notes.           dt:13.06.2016.

A2(g)          Copy of Progress Notes.           dt:14.06.2016.

X1.             Medical Board Certificate of  Minha Fathima.       dt:11.11.2019.

X2.             Medical Board Certificate of Minha Fathima.        dt:22.07.2022.                 

Exhibits for the Opposite Parties:

B1.              Errors and Omissions Policy.

B2.              Registration Certificate.                      dt:04.04.2022.

B3.              Authorisation Letter.                          dt:18.11.2022.               

                                                                                    PRESIDENT :   Sd/-

MEMBER     :   Sd/-

MEMBER     :   Sd/-