SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> Complainant filed this complaint for realization of compensation for medical negligence .<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> <br /> <br /> The 1st complainant is the son of the 2nd complainant who is a minor. The 2nd complainant took the first complainant to the Unity Orthepaedic Centre run by the opp.party’s Hospital on 7.11.2003 after a fall on elbow forearms. The first complainant was having severe pain on his left elbow forearm. The opp.party applied splinted LAS on Left Elbow Forearam of the 1st complainant . But on the date of removal of the splint [LAS] after a month it was revealed that the left elbow of the 1st complainant showed stiffness. It revealed that during the time of applying splint, the Forearme bone radial head and Ulna jointed together and the joint was dislocated at the Elbow joint. . This was caused due to the modus operandi of the opp.party stiffness two forearm bones were attached together without keeping its normal distance and both bones were not located at the Elbow joint property So that no movements is possible at the joint. The opp.party’s diagnosis and the modus of treatment contradicted each other which amount to negligence and deficiency in service on his part. It occurred due to the lack of spontaneous attention and acute care at the time of CMR and LAS. The opp.party is in-charge of the patient during the treatment. The opp.party did not take any effective measures to give emergency medical attention to the minor patient even in the casuality. The opp.party took the matter so casualy and lightly till 18.12.2003 from 7.11.2003. Though it was brought to the notice of the opp.party he did not give any proper attention to the patient . The complainant visited the hospital again by but some medicines were only prescribed and the opp.party tried to avoid the patient. The opp.party was not inclined to comply any further treatments even to overcome the disabilities caused due to his negligence. When the condition become worse day by day the 2nd complainant requested the opp.party <br /> for a reference to Medical College Hospital, Thiruvananthapuram on 18.12.2003 and accordingly he has issued a reference letter. The first complainant was referred on request and treated further by expert orthopedic surgeons and Ayurvedic experts. All the diagnosis of experts revealed that the complicated stiffness and dislocation of left elbow joint of the first complainant was caused due to the opp.parties negligence. The first complainant was suffering from 100% disability at his forearm and elbow joints of left hand Ayurvedic treatment developed and advanced the stiffness and locomotion of the left hand. The opp.party committed negligence and unexpertised, un exposed ignorance caused all disastrous situations which adversely effect the life and livelihood of the first complainant. The opp.party delayed the expertisation warranted situation which caused the complication. The opp.party’s gross negligence and wrong treatment caused the first complainant suffer for which the complainant is entitled to get compensation. Hence the complainants prays for awarding Rs. 2 lakh as compensation with interest and cost.<br /> <br /> <br /> The opp.party filed a version contending as follows: it is true that on 7.11.2003 the first complainant was brought to Unit Orthopeadic Centre at 7.40 PM following a fall. The duty Doctor examined him and advised X-ray of his left elbow. The opp.party who works as the Orthopeadic surgeon was called for attending the case. The first complainant was having pain swelling and painful limitation of movements of left elbow. As the X-ray showed green stick bend of upper end of forearm bones with minimal subluxation of Head of Radius, after manipulation of the bone and joint to normal alignment, a Long Arm slab was applied. The chilled was comfortable after plastering and was sent home. On 14.11.2003 after removing the plaster slab the opp.party re-examined the child. The swelling and pain have reduced and movements were improved. Slab was re applied and he was sent home with advice to come after 5 days . On 21.11.2003 the child was brought to the hospital by his grand mother. The plaster was removed and joint position was verified and sent home with a sling. The grand mother was instructed how to begin gentle elbow exercises to relieve stiffness that always develop in elbow injuries and also advised to bring the child to start physiotherapy if child does not co-operate to move the elbow due to pain. On 15.12.2003 the 2nd complainant brought the first complainant to the opp.party complaining of persisting stiffness. The opp.party examined the child and found that movements and relation between radius, ulna and Humerus were satisfactory. The child could stretch the elbow completely with 20 limitation of full bending. The child was then directed to physiotherapist for assisted elbow exercises to reduce stiffness. The opp.party has never seen the child after referring the case to physiotherapist. On 18.11.2003in absence of the opp.party the 2nd complainant came to the hospital and requested Dr. Sajad who was on duty for a reference letter to Medical College hospital, Thiruvananthapuram for further treatment. Dr. Sajad has issued a reference letter. There is absolutely no negligence from the side of opp.party . The splinting was given with due care. After verifying the X-ray at the time of plastering proper alignment was maintained between the radius and ulna and with humerus. The plea that there was improper splinting which damaged the bones and cartilages is false and hence denied. The description given by the complainant about the complication are absolutely false and they do not have any connection with fracture of elbow in a child. The opp.party immediately came from his residence to the hospital when he was called to see the first complainant on 7.11.2003. The child was given periodic reviews to assess the condition of elbow and due care was given at every stage, explaining consequences of the injury to parents of the child.. The alleged infirmities and discomforts are all imaginary and incorporated without any basis. The plea that the patient suffered 100% disability is false The consequences and complications explained in the plea if ever occurs is not due to the treatment of the opp.party. When the child was on 15.12.2005 the child had normal movements of the fingures, wrist and forearms along with near normal elbow movements. Among the list of documents in plea number 2,3,4 and 5 and their dates it is clear that the child was not given any timely physiotherapy at AIMS, Cochin Dr. Cherian Thomas , Thiruvananthapuram or at VPSV Malappuram due to purposeful negligence from the side of parents of the child, if any disability persists in the childs elbow, the opp.party is unaware of. The opp.party had good reputation in public and the complaint is prepared with a bad intention to ruin it. This complaint is filed at the influence of and advice from some rival doctors . The complainant has no cause of action. There is no deficiency in service. Hence opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> 1. Whether is any negligence or deficiency in service on the part of the opp.party?<br /> 2. Reliefs and costs.<br /> <br /> For the complainant PW.1 to 4 are examined. Exts. P1 to P10 are marked.<br /> For the opp.party DW.1 is examined.<br /> <br /> Points:<br /> The contention of the complainant is that there is gross negligence on the part of the opp.party in treating the first complainant which resulted in the development of stiffness on the elbow of the 1st complainant . It is argued by the learned counsel for complainant that the opp.party failed to diagnosis the problem and the first treatment given by the opp.party ie. the application of LAS is under a mis conconception that the joint is not dislocated but there was only a minimal sublexation. According to him the diagnosis of the opp.party that there was only a minimal sublexation is wrong and that the joint was actually dislocated. The definite case of the complainant that the root cause of the deformation of arm of the 1st complainant is due to the opp.party’s failure to identify the problem and suggest proper treatment. <br /> <br /> The contention of the opp.party is that the patient was not suffering from dislocation of elbow but it was actually a sublexation ie. partial dislocation for which prompt treatment was given as soon as the child was brought before him on 7.11.2003 X-ray was taken and a long arm slab was fixed after curing sublexation . The opp.party asserted that that there was only a sublexation ie. partial dislocation and there was no dislocation as argued by the complainant and the LAS given by him is the proper treatment for the same.<br /> <br /> Whether the child sustained dislocation or sublexation has not been properly established. Though PW.1 would contend that it was a dislocation no evidence is forthcoming regarding that aspect. PW.3 and 4 two eminent Orthopedic Surgeons having vast experience in the field orthopedics surgery were examined by the complainant. However no question is seen put to them to bring out as to whether from the available materials the injury sustained by 1st complainant is a sublexation or dislocation and whether the treatment given by the opp.party is the correct treatment or not. when negligence in diagnosis and treatment are attributed on the opp.party the burden on the complainant to establish that aspect by cogent materials or believable evidence. The complainant in our view not has succeed to establish that the diagnosis of sublexation by the opp.party is not correct and the treatment of LAS was wrong. It is not disputed that an X-ray was taken on the date on which the injured was brought to the hospital. However, that X-ray was not produced before the Forum or shown to PW.3 and 4, so as to bring out the truth for which no explanation is forthcoming. So the contention that there is suppression of material fact cannot be ignored.<br /> <br /> The definite case of the opp.party is that on 7.11.2003 when the complainant was brought before him, he has taken the x-ray and was satisfied that there is only a minimal sublexation which he has corrected and applied a long arm slab. The child was again brought before him on 14.11.2003 and on that day he has reapplied LAS and the child was very comfortable and he had no complaints of any pain. Again the child was brought on 21.11.2003 and on that day LAS was removed and a sling was applied. Again on 1.12.2003 he was brought for review and on none of these days either PW.1 or the child complained of any pain or swelling or of stiffness . PW.1 has also not deposed to that effect from which it is to be presumed that the treatment was taking effect. DW.1 has stated that when the child was brought before him on 1.12.2003 he has suggested slight elbow movement and physiotherapy. According to DW.1 the stiffness has developed since physiotherapy as suggested by him was not done by the child by himself or under the supervision of parents. It is argued by the learned counsel for the opp.party that PW.3 and 4 have stated that there was no mal union of elbow fones and had the treatment given by DW.1 was not proper mal union might have been present. It is further argued that stiffness of elbow is an accepted medical symptom in curing sublexation and stiffness can be cured by continuous mobilization of elbow by the patient himself with prompt attendance of the guardian. The case of the complainant is that the opp.party has not advised physiotherapy on any day and that their contention is corroborated by Ext.P2 where there is absolutely no mention of having suggested physiotherapy. However PW.1 and 2 have no case that the child has under gone physiotherapy or mobilization of the elbow till 18.12.2003, the date on which Ext.P2 reference letter was obtained . PWs.1 and 2 have also not deposed about any complaints of persisting pain by the 1st complainant on 14.11.2003, 21.11.2003 or on 1.12.2003.<br /> <br /> The available evidence shows that the complaint of persisting stiffness was raised for the first time on 15.12.2003. DW.1 says that he suggested physiotherapy from 1.12.2003 when the child was brought by his grandmother. Ext.X1 the OP card shows that physiotherapy was advised on 1.12.2003. But the veracity of Ext.X1 is seriously assailed by the complainant. It is submitted that had physiotherapy been suggested it ought have been referred to in Ext.P2 and the absence of such reference leads to an irresistible conclusion that physiotherapy was ever suggest by DW.1 PWs 3 and 4 have also said that physiotherapy used to be advised in similar cases after 2-3 weeks. Merely because physiotherapy is not referred to in Ext.P2 it cannot be said that it was never advised by DW.1<br /> <br /> PW. 3 is an Orthopedic surgeon having more than 41 years of experience working in the SP Fort Hospital, Thiruvananthapuram. He has deposed that though the complainant was advised to get admitted in the hospital that was not done . He would further state that no details were shown to him and without getting the patient investigated he cannot make any comment regarding the correctness or otherwise of opp.party’s treatment. It is not known as to why PW.1 taken the advice of PW.3. and thereafter did not admit the child in that hospital.<br /> <br /> PW.4 is a Professor, Ortho, Amritha Institute of Medical Science, Kochi. He has stated that he examined the injured and on examination he noticed dislocation of head of radius. He has further stated that if there was bowing of ulna there must be mal union which was absent in this case. He has also stated that though PW.1 was asked to bring the child for admission PW.1 did not turn up. PW.3 further stated that on examination of the injured he did not notice any fracture or mal union. PW.4 has stated that in similar cases as that of 1st complainant physiotherapy would be advised after 2-3 weeks after pain and swelling subside. In cross examination PW.4 has stated that in the case of the 1st complainant the instructions given by the doctor has to be strictly followed. He has further stated that if active elbow mobilization is done continuously the movement would have improved. In cross examination he has in answer to a suggestive question whether he has noticed on examining the injured any negligence on the part of any doctor. he said ‘I don’t think so’.. <br /> The definite contention of the complainant is that the opp.party failed to diagnose correctly the cause and the stiffness finally developed is because of wrong diagnoses and treatment. Though two Senior competent orthopedic surgeons, PW.3 and 4, were examined, as pointed out earlier no question was put to them whether the LAS treatment applied by the opp.party is correct or not PW.4 has categorically stated that on examining the injured he did not notice anything to suggest that there was any negligence in the treatment given by the opp.party. It is well settled that so long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which he followed…….. It is not possible for every professional to possess the highest level of expertise or skill in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yard stick for judging the performance of the professional proceeded against on indictment of negligence 2005 [3] KLT 965. As pointed out earlier the complainant failed to establish that the treatment given by the opp.party is not the treatment for the injury sustained by the first complainant. PW.3 and 4 two experts examined on the side of the complainant have not attributed any negligence on the opp.party regarding the treatment given to 1st complainant. As point out earlier even PW.1 has no case that on 14.11.2003 when the child was taken before DW.1 for review there was no improvement. On subsequent occasions on 21/11 and 1/12also PW.1 or the child made no complaint of pain or swelling or any discomfort. Had there been any severe <br /> pain the child would have complained of pain at least to his parent so it can be presumed that there was improvement and that the treatment was taking effect. We find considerable force in the contention of the opp.party that had physiotherapy and elbow movements were stated from 1.12.2003 stiffness would not have developed.<br /> <br /> The learned counsel for the complainant argued that the stiffness developed in the child is due to the wrong treatment given by the opp.party. According to him the first treatment applied by the opp.party ie. LAS is under a misconcept that the joint is not dislocated which has created all complication. It is further argued that if CMR was applied either it was a dislocation or a sublexation the joint would have been cured and no complication would have resulted. According to him PW.4 has stated that CMR can only be done under anesthesia in the case of a dislocation and the opp.party has no case that he had applied CMR under anesthesia which would establish negligence. He would further argue that bowing of ulna was not taken care of by the opp.party and CMR for radial dislocation is not sufficient for curing the bowing of ulna which also would establish negligence on the side of the opp.party. According to the learned counsel for the complainant no X-ray of the joints was taken on 14.11.2003, 21.11.2003 or 15.12.2003 to see whether joint position is proper or not which also would establish negligence on the side of opp.party.. It cannot be believed that not taking x-ray is negligence. X-ray need be taken only when there is something wrong. From the available material we find that there is nothing wrong till 1.12.2003 and it was because of that physiotherapy was suggested. DW.1 has stated that on 1.12.2003 the child was accompanied by his grand mother which is not denied by PW.1 We find no reason to disbelieve the statement of DW.1 that he suggested slight elbow movements and physiotherapy when the child was brought by his grand mother on 1.12.2003 PW.3 and 4 categorically stated that mobilization of the elbow is essential for not developing stiffness and that physiotherapy is to be done after 2-3 weeks after pain and swelling subside. There is no material to show that the child had under gone physiotherapy or elbow <br /> mobilization under the supervision of PW.1 or any of the guardians of the child. The child may not do elbow mobilization by himself because of pain and it is the duty of the parents to persuade him to do that. There is every reason to believe that the stiffness developed is only because of the omission to do elbow mobilization and physiotherapy for which the guardians of the child are to be blamed . Even assuming that CMR is the proper treatment and the same was done if elbow mobilization and physiotherapy is not done stiffness will arise. Mere fact that X-ray was not taken before suggesting physiotherapy is not a ground to presume negligence on the side of the opp.party. As pointed out earlier, PW.3 and 4 two competent orthopedic surgeons have not stated anything attributing negligence on the opp.party. PW.4 in unambiguous terms has stated that he do not think that the condition of the child was due to any negligence on the part of any doctor from which it can be safely inferred that there is no negligence in the treatment given by DW,1 Had there been any negligence or had the treatment given by DW.1 was not the proper treatment PWs .3 and 4 would have deposed to that effect. When both the experts examined attributed no negligence on the opp.party it can safely be concluded that there was no negligence on the side of the opp.party in treating the injured child. From the available materials before us we are of the view that the complainant failed to prove any negligence on the side of the opp.party or any deficiency in service. Point found accordingly. <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> Dated this the 20th day of September. 2008.<br /> <br /> <br /> I N D E X<br /> List of witnesses for the complainant<br /> PW.1. – Radhakrishna Pillai<br /> PW.2. – Sreekumar<br /> PW.3. – Cheriyan .M. Thomas<br /> PW.4. – V.K. Bhaskaran<br /> PW.5. – Sajjad<br /> List of documents for the complainant<br /> P1. – O.P. Card No.1830/03<br /> P2. – Referal letter of opp.party dt. 18.12.2003<br /> P3. – Out patient bill of AIMS<br /> P4. – Examination chitt of Dr. Cheriyan Thomas<br /> P5. – Discharge card<br /> P6. – Postal receipt<br /> P7. – Acknowledgement card<br /> P8. – Advocate notice<br /> P9. – opinion report<br /> P.10. – Notice issued by Karunagappally Grama Panchayat to the complainant.<br /> List of witnesses for the opp.party<br /> DW.1. – Dr. S. Ajith<br /> <br />