Tamil Nadu

StateCommission

FA/171/2014

PALANI SELVAM - Complainant(s)

Versus

DR. K. JAI KUMAR - Opp.Party(s)

V. SIVAKUMAR

28 Apr 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R.VENKATESAPERUMAL … MEMBER

 

F.A. No.171 of 2014

(Against the Order, dated 26.12.2013, in C.C. No.380 of 2012,

on the file of  the DCDRF, Coimbatore)

                                                    

                                                                                                                                  Orders pronounced on:    28.04.2022

 

Palani Selvam,

S/o.Subbaiya Pillai,

Door No.2/345-7,

Sri Karpaga Vinyagar Nagar,

Unjavelampatti,

Pollachi Taluk,

Coimbatore District.                                                                                                               … Appellant / Complainant

 

vs.

 

1. Dr.K.Jaikumar, M.S. (Ortho),

Arun Hospital,

No.88, New Scheme Road,

Pollachi Town and Taluk,

Coimbatore District.

 

2. Arun Hospital,

rep. by Dr.K.Jaikumar, M.S. (Ortho),

No.88, New Scheme Road,

Pollachi Town and Taluk,

Coimbatore District.                                                                                                            … Respondents / Opp. Parties

 

             For Appellant           :  M/s.V.Shivakumar

             For Respondents      :  M/s.AAV Partners.

 

This First Appeal came up for final hearing on 18.04.2022 and, after hearing the arguments of the counsel for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             This Appeal has been filed as against the Order, dated 26.12.2013, passed by the DCDRF, Coimbatore, in C.C. No.380 of 2012, in dismissing the complaint filed by the appellant herein.

 

             2. For the sake of convenience, the parties shall be referred to in the course of this order, as per their respective rankings before the District Forum.

             In brief, the case of the complainant, as given in the complaint filed before the District Forum, is as follows:-

             On 18.05.2011, the complainant met with an accident and sustained injuries on the left foot and abrasion over the left elbow.  He visited the 2^nd OP/Hospital where the 1^st OP/Doctor took an x-ray to find fracture of a bone at T-3 Metatarsal, for which, plaster of paris was applied over the left foot and the complainant was advised to come for a review after 7 days; accordingly, he went for the review complaining more pain in the left foot, right knee and left hand and the 1^st OP prescribed an ointment and advised him to come for review after 28 days. As the complainant developed intolerable pain in the left foot and left shoulder, he made an early visit to the Hospital on 09.06.2011, but, the 1^st OP without giving proper medical for the persistent pain once again prescribed an ointment.  Thereafter, on 21.06.2011, he met the 1^st OP, who took an x-ray, and removed the slab on the said date itself by stating that the fracture got united.  But thereafter, the complainant was not even able to stand as the foot still had swelling with curved posture and, on noticing the same, the 1^st OP suggested for physiotherapy treatment and further advised to come for a review after 7 days.  As per the said advice, the complainant visited the 1^st OP on 28.06.2011 and complained about the aggravated pain in the left leg with swelling and curved posture, for which, the 1^st OP suggested for hot water fomentation and use of ankle binder with an advice to come for review after 10 days.  Despite closely following the medical advice given by the 1^st OP, there was no improvement as the fractured leg still remained in curved posture with persistent pain.  Hence, the complainant consulted one Dr.Arulraj, who took an x-ray and advised him to approach Rex Hospital, Coimbatore.  On 08.07.2011, the complainant visited Rex Hospital, where the diagnosis revealed fracture of 3^rd metatarsal bone with dislocation of 2^nd, 3^rd, 4^th and 5^th Metatarsal Lisfranc left foot, for which, a surgery was conducted on 12.07.2011 to set right the left foot by k-wire fixation.  The 1^st OP, who is expected to be thorough in Ortho, merely applied plaster of paris only for the fracture of 3^rd metatarsal bone and utterly failed to set right the dislocation of 2^nd to 5^th metatarsal lisfranc in the left foot that resulted in “dysfunction of the left foot special heal strike to foot plate and ankle joint plantar flexian to toe off in the walking cycle”.  The complainant was not able to walk in a normal way and manner due to the medical negligence and deficiency in service on the part of the OPs.  For the legal notice, dated 27.06.2012, sent by the complainant, the OPs sent only an evasive reply.  Hence, he filed the complaint, seeking the District Forum to direct the OPs to pay the complainant a sum of Rs.1 lakh for the medical expenses incurred, Rs.1 lakh for the pain and mental agony and Rs.3 lakh as compensation.

 

             3.  The OPs resisted the complaint by filing a written version, wherein, among other things, it is stated thus:-

             On 18.05.2011, the complainant had approached the 1^st OP, complaining pain and swelling over the left foot since one day with history of trauma caused by bike accident on the said date.  The x-ray on the left foot AP Oblique view revealed Metatarsal T3 bone fracture, for which, plaster of paris cast was done to stabilize the fracture and facilitate recovery.  Medical prescription was given for the abrasions and the patient was advised not to bear weights and to observe limb elevation.  Since he was treated as an out-patient, the 1^st OP advised him to come back for review after 7 days.   On 25.05.2011, during review with complaint of pain over right knee and left hand, the BP was noted as 160/100 mm.hg.  After cast was re-applied, he was given tablets  and prescribed ointment fremov, and advised to come for review after 28 days with x-ray left foot AP oblique.   On 09.06.2011, the complainant visited the 1^st OP complaining pain over left shoulder and he was advised to apply ointment puron gel and take pain killers for 10 days.  On 21.06.2011, the x-ray revealed ‘fracture united’, hence, the slab was removed.  Fracture Walker Brace was advised so also limb elevation along with prescription of medicines and ointment Metro.  On 28.06.2011, the complainant came with complaints of swelling over the left foot and pain over the left shoulder, for which, he was advised not to lift weights for 10 days and to follow limb elevation/hot water fermentation and to use large size ankle binder in the left shoulder.  Although frequent follow-up visits were required for medical verification, the complainant never turned for further follow-up after 28.06.2011.  There was no negligence or deficiency in service rendered by the OPs since the fracture got united well on 21.06.2011 itself.   The said aspect is evident from the x-ray taken by the complainant on 21.06.2011 that showed union of fracture and proper alignment of the fracture limb.  The progressive healing of the fracture would show that the patient was treated by the 1^st OP/Doctor in clear terms of prescribed medical lines.  Physiotherapy treatment was suggested not because of status and position of the complainant’s foot, rather, it was meant for supervised rehabilitation.  The averment in the complaint that, after removal of the slab, the complainant was not able to stand goes against the specific medical advice given by the 1^st OP/Doctor not to bear weight. The OPs do not have any knowledge about the sequence of events that transpired in the other hospital.   Since the complainant was treated by the OPs as per the established medical norms, there is no scope for any negligence or deficiency in service and hence, the complaint is liable to be dismissed with costs.

 

             4.  To substantiate the claim and counter-claim, the parties filed their respective proof affidavits and, while the complainant marked 16 documents as Exs.A1 to A16,  the OPs marked 3 documents to B1 as Exs.B3.  The District Forum, after consideration of the materials placed, dismissed the complaint by holding that the complainant has not produced any evidence to show that the OPs have deviated from the accepted medical protocol and that, in the absence of any evidence, it cannot be held that the Doctor and the Hospital had been medically negligent in treating the complainant.  Aggrieved by the said order of dismissal, the complainant has come up with the present appeal.

 

       5.  Heard the submissions made by the learned counsels for the parties and perused the materials available on record.

             By narrating the sequence of events, learned counsel for the complainant submitted that, according to the OPs, the complainant suffered only a single fracture of T-3 metatarsal bone/left leg, for which, plaster of paris was applied and, after union of such fracture, the slab was removed, but, Ex.A13/Photograph and Ex.A14/X-ray show the left foot still in a swelling condition with curved posture.   The complainant, who suffered persistent pain in the left leg coupled with swelling and curved posture, visited Rex Hospital nearly after the two month duration of unsuccessful treatment received at the hands of the OPs, and the diagnosis done thereat revealed that the fracture was associated with dislocation of  2^nd to 5^th MT Lisfranc/left foot.  In the light of the same, the only inference would be that the OPs failed to exercise the expected medical care and diligence in handling the case of the complainant.  The said aspect also clearly revealed in Ex.A4/Discharge Summary of Rex Hospital that only suggests proper medical care and attention was not given by the OPs from the point of diagnosis upto the removal of slab which ultimately left the complainant to undergo the ordeal of endless pain in the left leg along with swelling and curved posture, for which, he was performed surgery/K-wire fixation in Rex Hospital.  According to him, apart from the medical reports in the form of Ex.A4 and A14 that self-speak the negligence and deficiency in service on the part of the OPs, by applying the principle res ipsa loquitur (thing speaks for itself), the District Forum ought to have allowed the claim of the complainant in its entirety, but, on the contrary, by simply focusing upon the course of treatment provided by the OPs, the Forum erroneously proceeded to dismiss the complaint, which is absolutely unwarranted and hence, the impugned order is liable to be interfered with by this Commission.

             On the contrary, learned counsel for the OPs submitted that, during the first visit made by the complainant after meeting the bike accident on 18.05.2011, the x-ray taken of the left foot AP Oblique revealed that the patient had metatarsal T3 bone fracture alone and since it was a ‘non-displaced single metatarsal fracture’ and easiest to manage, conservative method of treatment was followed.  During the review on 21.06.2011, the 1^stOP advised the complainant to take an x-ray of the fracture without removal of the plaster of paris Cast as is the normal practice to check the healing process and the x-ray/Ex.B3 thus taken showed ‘fracture united’ and only thereupon, the slab was removed.  On 28.06.2011 when the complainant visited the 1^st OP by complaining pain and swelling, among other things, he was specifically advised not to bear any weight and also to report for review after 10 days, however, he never turned up for further follow-up after 28.06.2011.   It is pointed out with much stress that union of fracture and proper alignment of the fractured limb as evident from Ex.B3 indicates that the patient was treated by the 1^st OP with all professional skills & care, thus, there is no scope at all to allege any negligence or deficiency in service.  Further, the patient did not receive the treatment as in-patient and the allegation that he had pain in the left foot and right knee during his visit to the 2^nd OP on 25.05.2011 is rendered false, as evidenced by the Out-Patient Card.  While it is a medically proven fact that pain and swelling are common complications for all types of fracture, the persistent pain might be due to causative activity of the complainant  against the strict medical advice as severe fracture may require a non-weight bearing cast for several weeks followed by gradual transition to full weight bearing.  It is not known as to whether the complainant strictly adhered to the medical advice of the OP/Doctor not to lift/bear any weight and to use a walker; for, any failure in adhering to the said advice might have resulted only in further complications despite union of fracture as shown by Ex.B3.   In the light of the clear position that the fracture got united on 21.06.2011 itself and since it is not known that after such union of fracture, the complainant seriously followed or not the medical advice not to lift or bear any weight, to observe limb elevation and to use walker, etc., coupled with the fact that he never turned up for further follow-up after 28.06.2011, the case of the complainant is liable to be rejected in toto for the further prime reason that the 1^st OP performed the duties as a medical practitioner with due care and he diligently decided the course of treatment that ultimately gave the positive result of ‘fracture union’.  The said aspect has been broadly dealt with by the District Forum which assigned logical reasons to hold that there was no negligence or deficiency on the part of the OPs, hence, no interference therewith is called for by this Commission.

            

                  6. Having considered the case and claims of the both sides, at the outset, we observe that we are unable to find any negligence or deficiency in service on the part of the OPs for the following reasons.  It is the specific stand of the OPs that their x-ray films are inscribed with the hospital name and hence, they are not accountable for the ones adduced by the complainant without the hospital name of the 2^nd OP.  The first X-ray under Ex.B1 taken on 18.05.2011 indicated a fracture of metatarsal T3 bone with no displacement that means, the actual injury on the left foot was only a single fracture of Metatarsal T3 bone.   While so, after providing conservative treatment for the “non displaced fracture”, on 21.06.2011, by taking the x-ray under Ex.B3, the 1^st OP found union of fracture, whereupon, he removed the slab.  Subsequent thereto, on 28.06.2011, when the complainant came after about a week complaining pain and swelling, the 1^st OP asked him to come for a review after 10 days with a strict advice not to bear weight, to observe limb elevation and to apply hot water fomentation.  But, admittedly, the complainant did not turn up for review after 28.06.2011.   It is the stand of the OP/Doctor that any failure in adhering to the above medical advice might have resulted in further complications.  Although the complainant would have parted with Rex Hospitals the clinical details connected to the OPs, the summary provided by the said Hospital does not refer anything about the first x-ray under Ex.B1 and also about union of fracture as evident by Ex.B3/X-ray that was on 21.06.2011 much before the admission of the complainant in Rex Hospital on 12.07.2011.   During  the interregnum in between the union of fracture and admission in Rex Hospital, as to whether the complainant indulged in any physical strain contrary to the medical advice that might have resulted in the further complication is not known. The evidence adduced by the complainant is not sufficient to undo the claim of the OPs that the single fracture got united on 21.06.2011 and also to rule out the suspicion of the OP/Doctor that non-adherence to the medical advice given by him might have resulted in further complications that led his admission and further treatment in Rex Hospital. Though an endeavaour is made to project as if  the complainant suffered more than one fracture by stating that he also suffered fracture of 2^nd to 5^th Metatarsal bone, a careful scrutiny of the records would show that it was not so, since the discharge summary issued by Rex Hospital under Ex.A4 clearly describes it as “diagnosis of 2 months old fracture 3^rd MT head with dislocation of 2^nd MT 3^rd, 4^th, 5^th lisfrance (L) foot.” that means, apart from the single fracture of 3^rd metatarsal bone, there was only dislocation of 2^nd to 5^th Lisfranc, again, that was not found in the first x-ray taken immediately after the accident, thereby, the only inference is, the complainant might have developed the further complication only after union of fracture and prior to his visit to Rex Hospital.  At any rate, by looking at the aspect of treatment provided by the 1^st OP, we do not find any element of negligence or deficiency in service attributable to him.  The District Forum also assigned clear reasons in that regard by analysing the materials placed and hence, there is no scope for interference with its well considered order.

 

             7. Accordingly, the appeal fails and it is dismissed as devoid of any merit, by confirming the impugned order, dated 26.12.2013, passed by the DCDRF, Coimbatore, in C.C. No.380 of 2012.           

 

R.VENKATESAPERUMAL                                                                                                                 R.SUBBIAH, J.

MEMBER                                                                                                                                                PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/April/2022.