CC Filed on 13.01.2010

         Disposed on 26.11.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.

Dated:  26^th day of November 2011

PRESENT:

                        HONORABLE T. RAJASHEKHARAIAH,  President.

  HONORABLE T.NAGARAJA,  Member.

       HONORABLE K.G.SHANTALA,  Member.

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Consumer Complaint No. 11/2010

Between:

ORDER

This is a complaint filed under section 12 of the Consumer Protection Act, 1986.    The complainant contends that Opposite Party is a Medical Practitioner and he is having his own clinic at Masthi Village, Malur Taluk.     The complainant gone to the Opposite Party Clinic on 05.07.2009 at about 9.30 a.m. as he was suffering from body pain and head ache, Opposite Party-Doctor personally treated the complainant and gave injection to his left hip.   While injecting negligently by talking over a cell phone the Opposite Party injected to left sciatic nerve.    Within five minutes the complainant got tingling numbness, burning sensation in the left foot and radiant pain.    Immediately he brought it to the notice of the Opposite Party and the Opposite Party said it is due to chukoon gunya.    Further the Opposite Party gave some injection and tablets and inspite of it, the pain and lack of sensation did not change, but it aggravated.   Thereafter the complainant took treatment at R.L. Jalappa Hospital, Kolar on 03.08.2009.     Further the complainant took treatment at Whitefield Orthopedic Trauma and Surgical Hospital and there is no improvement.   Again the complainant got admitted to M.V.J. Medical College Hospital on 17.08.2009 and took treatment for two weeks as an inpatient, inspite of it there was no improvement and the complainant now cannot walk on his left leg and he has to walk with support and he is suffering from tingling numbness, radiant pain and burning sensation in left foot.    The complainant is physically and permanently disabled with radiant pain in the left leg.    The Expert Doctors opined that due to gross negligence and carelessness of the Opposite Party while giving injection to the complainant this problem has arisen.    The complainant was a Mason by profession and he was earning Rs.5,000/- per month.  After the accident till today the complainant is bed ridden and he has lost his earnings and in future the complainant cannot do his work and earn his livelihood.    The complainant has spent Rs.50,000/- towards treatment and the complainant is still under treatment.    Hence this complaint is filed for directing the Opposite Party to pay compensation of Rs.10,00,000/-.

2. The Opposite Party has filed its version and has stated that the complainant was known to him and one day the complainant had come to Opposite Party with the history of pain and for this reason the Opposite Party gave prescription of ointment of “Bestline”.   He has not treated the complainant by giving injection as stated.    He states that he does not know whether further treatment was taken by the complainant.     He denies that due to negligence of the Opposite Party, the complainant has developed numbness,   burning sensation, radiant pain.     It is denied that complainant has suffered any disability and he has suffered loss of income or loss of future income.    Hence it is prayed to dismiss the complaint.

3. The points that arise for our consideration are:

Point No.1:  Whether the complainant has proved the alleged

                       deficiency in service by the OP?

Point No.2:   If so, to which reliefs the complainant is entitled to?

Point No.3:  To what order?

            4.  Our findings to these points are as hereunder:

1.      Affirmative

2.      Affirmative

3.      As per final order.

R E A S O N S

5. POINT NO.1:  The Opposite Party denies that he has given injection to the complainant and for that reason the complainant suffered.     However the Opposite Party admits that complainant had come to him with the complaint of pain and he has given ointment.  The complainant has produced the out patient medical records for having taken treatment at Jalappa Hospital, Kolar on 03.08.2009, out patient records of White Field Orthopedic Trauma and Surgical Hospital on 15.08.2009, the outpatient treatment of records of M.V.J. Hospital on 06.10.2009.    In the outpatient record of the M.V.J. Hospital is stated as  “post injection left sciatic nerve palsy”.    The fact that the complainant is subsequently taken treatment at several hospitals probablizes his contention that he was treated by giving injection.    Hence this material corroborates the version of complainant.   When the complainant has gone to the Opposite Party for treatment with complaint of pain, it is probable that he might have given some injection as alleged by the complainant.       Hence mere denial by the Opposite Party is not acceptable on the facts and circumstances of the case.    Hence we accept the contention of the complainant that he was treated by the Opposite Party by giving injection.  

Whether giving injection by the Opposite Party to the complainant led to complications in the question to be considered.    The above medical records, for having taken the outpatient treatment, clearly goes to show that he had developed said complications and because of it he was treated.      As the case is related to medical negligence, the case was referred to Medical Council for its opinion and the opinion was received.      The opinion of the Karnataka Medical Council is also available on record and it clearly states that it is of the unanimous opinion that a prima-facie of negligence exists as per the documents made available to the Council.    The report states that “the Opposite Party has administered an injection in to the left gluteal muscle of complainant which was followed by “Post Injection Left Sciatic Nerve Palsy”.    The same has been confirmed by NIMHANS, M.V.J Hospital and other Centres.     On the basis  of this material the Karnataka Medical Council has given the opinion that the Opposite Party is negligent.    In our opinion, this opinion of the Medical Council is acceptable, because it is based on the medical records, where the complainant took treatment.    Hence mere denial of it by the Opposite Party is not material.     We have also considered the various recitals made in the outpatient records and the treatment given to him and they are clearly indicating there was complication of post injection left sciatic nerve palsy and he was treated for it.    Hence complication is directly attributable to the act of the Opposite Party, who had given the injection to the complainant.   Hence the material on record clearly goes to show that there was medical negligence on the part of Opposite Party.     Hence we held this point in favour of complainant.  

6. Point No.2 & 3:  The complainant has produced various medical bills for having spent for taking treatment at different hospitals and these bills shows that he has spent Rs.2,070/-.   We also taken judicial notice of the fact that the complainant cannot retain all the bills and he cannot account for misc. expenses such as traveling expenses and daily expenses.    Hence we are of the opinion that he must have spent atleast Rs.3,000/- for traveling and other misc. expenses.   It is seen that he has taken treatment at different hospitals at R.L. Jalappa Hospital, Kolar, Whitefield Hospital, M.V.J. Hospital and NIHMANS Hospital at Bangalore.    The treatment was taken until 06.10.2009.    Hence for about 03 months, after the cause of action, he has taken treatment in different hospitals.   Hence spending atleast Rs.3,000/- of traveling and misc. expenses would be probable and that could be awarded.     In our opinion for having continuously taken treatment for about 03 months and for having taken treatment as inpatient for 15 days, he has been put to lot of inconvenience and physical sufferings and because of it, awarding compensation of Rs.50,000/- is reasonable.  In addition to it, the loss of income for 03 months may also be taken into consideration.    The complainant has pleaded that he is a Mason earning Rs.5,000/- per month.    In our opinion any person who does manual work could easily earn Rs.5,000/-.    Hence the loss of income for 03 months may be taken as Rs.15,000/-.    Hence the total amount that may be awarded as follows:

01.       Medical expenses                              Rs.2,070/-

02.       Misc. expenses                                  Rs.3,000/-

03.       Sufferings and inconvenience          Rs.50,000/-

04.       Loss of income                                 Rs.15,000/-

                                                                        ­­­__________

                                    Total                           Rs.70,070/-

                                                                        __________

The complainant alleges that he is suffering from numbness, radiant pain and burning sensation even now, and he is physically permanently disabled and he cannot stand on left leg and he has to walk without support and he cannot earn anything in future.   In our opinion, there is no material to substantiate this contention.     No Disability Certificate has been produced.     There is no medical evidence to prove that there is such disability.    There is only ENMG Report of Nerve Dialysis Centre, Bangalore and it gives the conclusion as follows:

CONCLUSION: Findings suggests

1.      Motor neuroparthy mild in left CP, moderate in left Pt nerves

2.      Moderate sensory neuropathy in left sural nerves.

 The above report goes to show that the report is given on 18.09.2009 and it only show mild neuropathy in left CP and moderate sensory neuropathy in left sural nerves.    There is no material to show that the said disability has been continued and he has subsequently taken any treatment for the same.    The medical records produced show that the last treatment taken is only on 06.10.2009 and we have no material for having taken subsequent treatment.      Hence we may presume of net having taken any subsequent treatment.    Hence for want of material on record, to show that he was permanently disabled, we are unable to accept this contention.    Hence we held that the complainant is entitled for compensation of Rs.70,000/-.   In addition to it, costs of Rs.5,000/- may be awarded.   Hence we pass the following:

O R D E R

The complaint is allowed.    It is held that there is medical negligence on the part of the Opposite Party in treating the complainant.    The Opposite Party shall pay Rs.70,000/- as compensation and Rs.5,000/- as costs.      The Opposite Party is granted 30 days time to pay the compensation and costs.  In case of default, the Opposite Party shall pay interest at the rate of 12% p.a. on the said amount from the date of default until actual payment. 

            Dictated to the Stenographer, corrected and pronounced in open Forum this the 26^th day of November 2011.

T. NAGARAJA                        K.G.SHANTALA          T. RAJASHEKHARAIAH  

   MEMBER                                 MEMBER                               PRESIDENT