IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of June, 2016
Filed on 17.02.2014
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.45/2014
Between
Complainant:- Opposite parties:-
Sri. Vineesh 1. Dr. K. Geetha, Superintendent
Malethu Puthen Veedu Taluk Hospital, Chengannur
Edanadu P.O. Alappuzha District
Puthenkavu, Chengannur
Alappuzha District 2. Dr. Sethu, Ortho Paedics Surgeon
(By Adv. Beatrice Feria) Taluk Hospital, Chengannur
Alappuzha District
Now working as Asst. Prof. Ortho
Paedics Surgeon at Medical College
Hospital, Vandanam, Alappuzha
(By Adv. P.T. Thomas)
O R D E R
SMT. JASMINE D. (MEMBER)
The facts of the complaint in short are as follows:-
The complainant was a coconut climber and on 3.2.2010 he fell down from a coconut tree at about 4 p.m. and immediately after the incident the complainant was rushed to the Chengannur Taluk Hospital and was admitted there as IP No.373/2010. On investigation the 2nd opposite party, who treated the patient/complainant noted Dislocation (LT) elbow, fracture 1st, 2nd and 3rd metatarsal, fracture calcaneum and fracture spine (L2). According to the complainant, treatment given by the 2nd opposite party was only Plaster of Paris, Antacids, Painkillers and oral antibiotic tab. The complainant was discharged on 15.2.2010 with supportive medicines. After discharge from the hospital, complainant consulted the 2nd opposite party at his home due to pain and suffering and continued the follow up treatments for about 10 months, but the pain and suffering of the complainant had not cured. As the complainant had severe pain in the metatarsal of right foot he underwent treatment in many hospitals such as Medical College Hospital, Kottayam, District Hospital, Kozhencherry etc. Thereafter the complainant was admitted at District Hospital, Kottayam on 22.1.2013 as IP No.814 and was under the treatment of Orthopedic Surgeon Dr. Benjamin George and was discharged on 5.2.2013. Then only the complainant came to know that the pain and disability was occurred due to the medical negligence of the 2nd opposite party who treated the complainant. According to the complainant bones are malunited due to the improper management of the 2nd opposite party. On 26.9.2013 18% permanent disability was assessed by the Medical Board of Alappuzha. According to the complainant it is a clear case of medical negligence, hence filed this complaint.
2. The version of the 2nd opposite party is as follows:-
The complaint is barred by limitation. The 2nd opposite party had treated the complainant in the year 2010 and the complaint is filed in the year 2014. The service rendered by the 2nd opposite party to the complainant at Taluk Head Quarters Hospital was absolutely free of any charge and hence their service does not come under the purview of the Consumer Protection Act. The first opposite party provides free service to patients admitted therein and hence the complainant is not a consumer as contemplated in the said Act. The complainant was admitted in Taluk Head Quarter’s hospital, Chengannur on 3.2.2010 and treated in the new surgical ward in the hospital. He had a history of sustaining injuries following a fall from tree. On X-ray examination it was revealed that he had sustained fracture spine L2 vertebra with no neurological deficit, dislocation of left elbow, fracture 1st, 2nd and 3rd metatarsals of right foot and fracture of calcaneum left. The severity of fracture due to traumatic injuries caused by fall and prognosis were explained to the patient and his bystanders and they agreed for fracture reduction and consented for the same. Under all aseptic care and precautions the 2nd opposite party promptly reduced the elbow dislocation, reduced the metatarsal fractures and the calcaneum fracture and applied POP slab, and immobilized the spine. The nature of fracture revealed through X-ray examination evidences that the complainant sustained a high velocity fall causing injury to multiple bones. The 2nd opposite party had given the patient an option for referring him to higher centre like Govt. Medical College hospital, but he was not willing to go to higher centre. The 2nd opposite party had also explained the serious nature of injury to the patient and revealed the possibility that he might not be able to resume the original work in future as the small bones of feet are fractured into bits even though its required treatment was given with due care and expertise. The complainant was treated in the first opposite party’s hospital as IP with proper medications and supportive care as per accepted medical practice. Once the swelling has subsided, fractured site were manipulated and applied casts to both legs again. Long arm cast to left elbow and spinal jacket was applied. In follow up review POP cast of the limbs were removed after 6 weeks and spinal jackets were removed at 2 months. The complainant was advised physiotherapy and pain relieving medications. The complainant came for follow up review up to 2 months and in the last review he was found to have recovered up to the expected level. Thereafter the complainant lost follow-up and the 2nd opposite party got selected to medical education department and was relieved from duties of Taluk hospital on 2.7.2010. It is medically proved fact that calcaneum is the most commonly fractured tarsal bone and although they always heal in the biological sense, are likely to be followed by long term disability. The complainant had sustained traumatic injury by fall from height and there is chance for calcaneum driven against talus and split or crushed associated with injuries of spine, elbow etc. The patient was treated with closed manipulation and reduction and POP immobilization as per accepted practice and he was managed with physiotherapy after settling pain and swelling and proper advice for non weight bearing and continuation of physiotherapy in follow up visits as well. The complainant was well explained regarding the nature of injuries and prognosis and he was informed that in the nature of fracture sustained by the complainant, functional status might be compromised and might preclude a return to previous job as it involved balancing on ladder and climbing trees. The 2nd opposite party had treated the complainant with utmost care and caution and there was no negligence or carelessness on his part at any point of time in the course of treatment. The complainant had developed disability due to factors unconnected to treatment procedure or degree of care from the part of orthopedic surgeon but due to the nature and severity of traumatic injuries sustained by him. Further there was no deficiency in service of the 2nd opposite party and he is not liable to compensate the complainant. The complainant has not consulted the 2nd opposite party at his residence for the period of 10 months as alleged by the complainant. The statement that the complainant detected pain and disability has occurred due to medical negligence on the part of the 2nd opposite party is unfounded and made solely for the purpose fo filing a frivolous complaint. The 2nd opposite party had treated the complainant in strict regard to accepted medical protocol with due diligence and care and allegation against the 2nd opposite party is purposely stated for undue advantage and hence denied. The averment that the complainant is not able to do ordinary pursuits of lfie and depending on others is not correct and hence denied. The complainant has no cause of action against the 2nd opposite party and the 2nd opposite party is not liable to compensate the complainant, hence the complaint may be dismissed.
4. The complainant was examined as PW1 and documents Exts.A1 to A7 were marked. One witness Dr. Benjamin George was also examined as PW2 on the side of the complainant. The case records of PW1 which were maintained by the first opposite party hospital was marked as Ext.C1. 2nd opposite party was examined as RW1.
5. At the threshold the 2nd opposite party challenged the maintainability of the complaint, the Forum found that the complaint is maintainable vide separate order dated 28.11.2014.
6. Considering the allegations of the complainant and contentions of the first opposite party, the Forum has raised the following issues:-
1) Whether there is any negligence on the part of the 2nd opposite party?
2) If so, as to relief and cost.
7. The 1st and 2nd points can be considered together. The complainant has filed this complaint for compensation for medical negligence. Medical negligence means negligence resulting from the failure on the part of the 2nd opposite party to act in accordance with the medical standards which are being practiced by an ordinarily and reasonably competent person practicing the same. The medical practitioner’s owe a duty to their patients to exercise reasonable care in carrying out their professional skills of diagnosis, advice, treatment or surgery. In order to find out the above prepositions we have to see whether there was any want of reasonable degree of skill or willful negligence or any lapse on the part of the 2nd opposite party in the treatment of the complainant. To answer this question we have to peruse the complaint, version, proof affidavit filed by the parties, oral testimony of the witnesses and the evidence adduced by the parties.
8. The case of the complainant is that the complainant fell down from a coconut tree and was admitted at Chengannur Taluk Hospital on 03.02.2010 and he was under the treatment of 2nd opposite party. The complainant underwent treatment for Dislocation (L.T.) elbow, fracture 1st, 2nd and 3rd metatarsal of right foot, fracture calcanium and fracture L2 spine and he was discharged on 15.02.2010 with supportive medicines. After discharge from the Hospital the complainant consulted the second opposite party at his home due to pain. Thereafter he consulted other Doctors also, but the pain continued and finally the complainant was admitted at District Hospital Kottayam on 22.01.2013 and on discharged at 05.02.2013 and there he was under the treatment of Dr. Benchamin George. Then the complainant came to know that the pain and disability was due to the negligence of the 2nd opposite party who treated the complainant. According to the complainant the 2nd opposite party has done Plaster of Paris treatment instead of open reduction in the 1st, 2nd and 3rd metatarsal of right foot. Only because of that complainant sustained severe pain and disability, hence filed this complaint alleging medical negligence on the part of the second opposite party who treated the complainant.
9. According to the complainant even after continued follow up treatments the complainant suffered severe pain in the metatarsal of right foot. So he approached Dr. Benchamine George at District Hospital Kottayam. Then only the complainant came to know that the pain and disability was due to the negligence of the 2nd opposite party. The highlighting point contended by the complainant for alleging negligence on the part of the 2nd opposite party is that the 2nd opposite party has done Plaster of Paris in the 1st, 2nd and 3rd metatarsal of right foot instead of open reduction. The allegation of the complainant is that the malunion of 1st, 2nd and 3rd metatarsal of right foot was caused due to the negligence of second opposite party and thereby he sustained disability.
The question is whether this allegation has any foundation in the evidence adduced. In answering this question the nature of the accident, what was his actual condition when he has brought to the hospital, the deposition of the witness, documents and several other factors are relevant.
10. Admittedly a complainant was brought to the 1st opposite party hospital due to fall from coconut tree on 3.2.2010. On examination revealed the following fractures. Dislocation left elbow, fractures 1st, 2nd and 3rd metatarsal of right foot, fracture calcanium and fracture L2 spine and the complainant was discharged on 15.02.2010. The complainant was examined as PW 1 and Ext. A1-A8 were marked. Ext A1 is the Discharge slip issued from Taluk Hospital, Chenganur. Ext. A2 is the discharge slip issued from District Hospital, Kottayam. Ext. A3 is the disability certificate. Ext. A4 is consultation chits. Ext. A5 is the outpatient ticket from Medical College Hospital Kottayam. Ext. A6
is the one and same certificate. Ext. A7 is the X-ray and Ext. A8 is the copy of complaint given to Minister of Health.
11. According to the complainant after discharge from the Hospital (that is on 15.02.2010) the follow up treatments were done for a period of ten months. Ext. A4 shows that the complainant has done follow up treatments only for three times that is on 17.04.2010, 21.04.2010 and finally on 15.05.2010 there after he did not came for follow up treatment. The complainant alleged that since the pain of the complainant was not reduced he consulted other Doctors in Medical College Hospital, Kottayam and District Hospital, Kozhenchery. In order to substantiate this allegation the complainant produced Ext. A5 which shows that the complainant was treated as an outpatient in Medical College Hospital, Kottayam on 10.09.2010 were he treated for the complaint of pain in left heel and not for the right foot where the alleged Plaster of Paris was done. Further the complainant produced Ext. A2 document which shows that the complainant underwent treatment in District Hospital, Kottayam as an Inpatient for a period starting from 22.01.2013 to 05.02.2013. And there he underwent arthrodesis of TM joint.
12. As seen from Ext. C1 the complainant was brought to the Hospital with a history of fall from tree and the fracture was grievous one. The complainant sustained fracture left elbow, fracture 1st, 2nd and 3rd metatarsal of right foot, fracture calcaneum and fracture L2 spine. RW1 and PW2 explained that the circumstances were not suitable for an open reduction of metatarsal at that time. PW2 deposed as under:-
1. In multiple fracture whether the procedure is open reduction?
Ans: If the patient has some other serious injury the priority should be given to the serious injury. In the instant case the patient is having spinal fracture.
2. It is said that Plaster of Paris treatment is not the proper treatment in case of multiple fracture ?
Ans: No.
13. There was no expert evidence or medical literature to show that the procedure adopted by the 2nd opposite party was ill advised. According to the 2nd opposite party he had treated the patient properly and he performed his duties for the best of his ability with due care and caution. The 2nd opposite party examined the patient/complainant and had exercised reasonable skill in diagnosis advise and treatment. The complainant in his complaint as well as in the proof affidavit it is stated that the complainant was discharged from the Hospital with appropriate medicines. It is also pertinent to note that in Ext. A3 disability certificate the assessed disability of 18% is not only for the fracture of 1st, 2nd and 3rd metatarsal of right foot but also for subtalar arthritis left foot.
14. On scanning the entire evidence we cannot see that there was any want of reasonable degree of skill or willful negligence on the part of the 2nd opposite party in treating the complainant. On conclusion it can be seen that there is no evidence to prove that the alleged disability was caused due to the negligence on the part of the 2nd opposite party. We can undoubtedly say that there is no negligence on the part of the 2nd opposite party. Hence the complaint fails. Therefore the complainant is not entitled to get any compensation.
In the result the complaint is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of June, 2016.
Sd/- Smt. Jasmine.D. (Member)
Sd/- Smt. Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Vineesh (Witness)
PW2 - Dr. Benjamin George (Witness)
Ext.A1 - Discharge slip issued from Taluk Hospital, Chengannur
Ext.A2 - Discharge slip issued from District Hospital, Kottayam
Ext.A3 - Disability certificate
Ext.A4 - Consultation chits
Ext.A5 - Outpatient ticket from MCH., Kottayam
Ext.A6 - One and same certificate
Ext.A7 - X-ray
Ext.A8 - Complaint forwarded to Minister of Health
Ext.C1 - Case records of PW1 which were maintained by the first opposite party hospital
Evidence of the opposite parties:-
RW1 - Sethu. S. (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-pj/-
