Complaint No. :564/2008 Filed on : 16/12/2008 Decided on : 06/03/2010 Duration : 01 year 02 months 20 days BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) Master Sanket Govardhan Dahad Shri, Govardhan Shravanji Dahad Samta Nagar, kasara (E) ..Complainant V/s. 1.Dr. Surendra P Janjire Shree Accident and General Hospital, Pandit Naka, Shahapur, Dist – Thane. 2.Dr. Pradeep B. Shelar M.D. of Shelar Hospital, 1st floor, Ujjwal Building, Behind Sheetladevi Temple Shivaji Chowk, Kalyan(West) Dist – Thane. ..Opponent
CORUM : HON'BLE PRESIDENT I/C : MRS. BHAVANA PISAL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. H.R.Gole Opponen no. 1 through Adv. Surenkumar B Shetty Opponent. 2 through Adv. Anil Kumar Menon J U D G E M E N T (06th March 2010) HON'BLE MEMBER : MR. P. N. SHIRSAT 1. Complaint is filed as per Consumer Protection Act 1986 vide section 12 and the brief facts of the complaint are narrated as under:- That the Complainant is a minor child who has been representated through his natural guardian and the Opponents 1 and 2 are doctors by profession who runs their clinic/hospital at the addresses mentioned in the title. On 08/02/2007 the Complainant while playing sufferred injuries on the left hand wrist. Therefore he went to the primary health centre for treatment where a medical officer informed him to consult a Orthopedic surgeon without wasting time. Complainant went by special taxi to Opponent no. 1 who took X-ray of the left hand and plastered the left hand without giving anesthesia and admitted him in the hospital. The Complainant was having severe pain. The Complainant was discharged on 09/02/2007 saying he has saved money since no anesthesia was given. After 2 days from the date of discharge the Complainant found that his fingers are swelling. The Complainant soon called up at Opponents hospital when he was told that doctor is gone to Nasik and was asked to remain present on 12/02/2007. On 12/02/2007 the Complainant visited Opponent no. 1 hospital that time on seeing the swelling fingers which was turned into blueish black and also bleeding in the plaster portion angrid upon the .. 2 .. Complainant. The Opponent no. 1 has carried our some tests and arranged ambulance for Complainants further treatment to Opponent Doctor no. 2 and admitted the Complainant on 12/02/2007 who performed operation at 12:00 midnight. The Operation was performed by Dr. Jhabak & Dr. Bharti Khandekar who were the visiting doctors at the same hospital. The Complainant was kept in the hospital from 12/02/2007 to 13/04/2007. During this period the operation was performed 4 times namely on 12/02/2007, 24/02/2007, 14/03/2007 and 31/03/2007 respectively without allowing anybody to meet the patient. The Complainant was asked to bring reports from Microbiology Daignostic Centre Dombivali. The Opponent shown him the photograph through Mobile Phone. The Opponents advised to carry out physio-therapy from Dr. Subhangi Lonkar for 3 months. The Opponents pressurised the Complainant not to file any complaint anywhere. The Opponents offered Rs. 50,000/- to the father of the Complainant for the same. The Opponents were giving false assurances of the recovery to the Complainant after completion of physiotherapists treatment but all in vain. Therefore the Complainant showed his affected hand and reports to Dr. Manoj Rajani who opined that affected left hand of the Complainant cannot be cured. The Complainant has realised the disability authentically in the month of October 2007. Due to negligent and careless treatment provided by the Opponents the Complainant has to suffer permanent disability of loosing his left hand. Therefore the Complainant files the complaint in the consumer forum, Thane stating therein that the Complainant is a consumer who paid amount to the Opponents for treatment and the Opponents have provided negligent and careless treatment causing deficiency in service and the cause of action took place in October 2007 hence the complaint is within the territorial jurisdiction of this Forum. The reliefs asked for are also within the pecuniary jurisdiction of this Forum. Hence the Forum has territorial as well as pecuniary jurisdiction to adjudicate and decide this complaint. The prayer of the Complainant is as follows: 1.The Opponents to pay Jointly and severally Rs.15,00,000/- (Rs. Fifteen lakhs only) to the Complainant for casuing permanent disability due to their negligency in service. 2.The Opponents to pay jointly and severally Rs.3,00,000/- to the Complainant towards mental agony/harassment and cost of litigation etc., 3.Any other reliefs which may deem fit and proper. .. 3 .. 2. The Forum issued notice vide Exhibit no.5 to the Opponents. The Opponent no.2 filed written statement vide Exhibit no.6 and filed affidavit vide Exhibit no.7. The Opponent no. 1 has filed written statement vide Exhibit no.8 and filed documents vide Exhibit no.9 and filed affidavit vide Exhibit no.9 and filed affidavit vide Exhibit no.10 and also filed vakalatnama vide Exhibit no.11 by Opponent no.2. The Opponent no.1 has filed vakalatnama vide Exhibit no.12. The Complainant filed application vide Exhibit no.13 and also filed documents vide Exhibit no.14. The Complainant has filed pursis vide Exhibit no.15 and rejoinder as evidence vide Exhibit no.16 and filed application vide Exhbit no.17 and 18 the list of documents. The Opponent no. 2 has filed affidavit in evidence vide Exhibit no.20 and filed documents vide Exhibit no.21. The Opponent no. 1 has filed written arguments vide Exhibit no.22 with affidavit on evidence on Exhibit no.23. The Opponents no.2 has filed written arguments vide Exhibit no.24. The Complainant has filed application for adjournment vide Exhibit no.25 which was granted and accordingly filed written arguments vide Exhibit no.26. The contents of the written statement and written arguments of the Opponent no. 1 are as under: On dt. 08/02/2007 the Complainants minor son Master Sanket brought in the hospital of the Opponent no. 1 at 4.15 pm with history of fall with pain and slightt swelling on left hand wrist and hence advised X-ray. A X-ray revealed “Green Stick fracture” as distal and of left radius ulna without dorsal bowing. Since it was a simple fracture without any deformity plaster cast was applied without anesthesia without any procedure. The necessary medicine was administered and elevation of hand was advised and the patient was admitted in his hospital on dt. 08/02/2007 at 10 pm. Childs condition was examined and following observation was made:- a) General condition fair b) Afebrile ( No fever) c) No distal nerurovacular deficit(L)UL d) No swelling e) finger movement positive On dt. 09/02/2007 the routine checkup of the patient at 10am examined and recorded as under:- a) general condition good b) Afebrile – (No fever) .. 4 .. c) Left hand movement positive d) No Swelling in left hand e) Nail bed Circulation normal of left hand. On dt. 09/02/2007 took discharge against medical advise at 12 noon with advise to follow the advise to lie down for at least 3 to 5 days and should keep his left hand elevated. The patient was brought in the hospital of Opponent no. 1 who found it is case of Compartment syndrome i.e swelling so severe to cause stopping of blood and necrosis of tissues. On Examination POP Plaster as cut open to allow circulation and the patient was shifted to Opponent no. 2's hospital under care and supervision of Dr. Zabak Nitin (MS) and Dr. Bharati Khandekar (MCH). The Opponent not committed any negligence. The Complainant is negligent, Compartment syndrome is caused by elevation in pressure of the tissue fluide within the closed fascial compartments of the limbs. A surgeon cannot and does not guarantee that the result of surgery will be 100% sucessful for the person operated on. The Opponent no. 1 has filed legal citation on Jacob Mathew V/s. State of Punjab and another (MANU/SC/0457/2005 wherein it is held that medical practitioner not to be held liable simply because things went wrong from mischance ot misadventure or through an error of judgement in choosing one reasonable course of treatment in performance of another. Therefore the Complaint be dismissed with cost since the complaint is false, malicious and based on misconception of facts. The contents of the written statement and written arguments of Opponents no. 2 are as follows: On 12/02/2007 and till 13/02/2007 the four surgeries were performed for “Compartment Syndrome” by highly qualified doctors. The Opponent no. 2 admits that the father denied access to the father in operation theatre. The Opponents denied for giving assurances of recovery even after completion of physio therapy. The Opponent no. 2 denied to have offered Rs. 50,000/- for executing any writing. Due to immediate action of the Opponent no. 2 for the treatment for “Compartment syndrome” the childs hand is saved from gangrine amputaiton. The Complainant is not a consumer as the Complainant had not paid valuable consideration. The Opponent no. 1 have followed standard medical procedure with due care and diligence and causing no trauma to the patient. The Opponent no. 2 states that the complaint is false malicious .. 5 .. and based on misconception of the facts hence the complaint be dismissed with compensatory cost to the Opponents.
3. In this complaint, the Complainant has filed rejoinder, affidavit, documents and written arguments. The Opponents has also filed written statement with affidavit, documents and also written arguments. We have carefully perused and scrutinised all the submission filed on record. Therefore the following 2 question are arises for our consideration which are :- A)Whether the Complainant has proved any deficiency in service committed by the Opponents towards the Complainant? Ans – Yes. B)Whether the Complainant is entitled for compensation on account of mental harassment and also legal expenses? Ans – Yes. A.Explanation: The Complainant is a boy of 8 years who suffered injuries while playing on the left hand causing pain and swelling in wrist on dt. 08/02/2007. The doctor i.e Opponent no. 1 has opined in the admission form as follows: Diagnosis :- Green Stick fracture of distal and of left radius ulna without dorsal bowing since it was a simple fracture without any deformity plaster cast was applied without anesthesia and without procedure. The necessary medicine was administered and elevation of left hand was advised. On dt. 08/02/2007 after admission in the hospital the considtion of the patient was as follows: a) General condition – fair b) Afebrile (No fear) c) No distal neuro vascular deficit (L) d) No swelling e) finger movement positive The condition of the patient was the same on dt.09/02/2007. The Complainant complained about pain and swelling on 11/02/2007 but the Opponent was not available as he had gone to Nashik. On dt.12/02/2007 the Opponent no.1 on seeing the swelling in fingers which was turned into bluish black and also bleeding in the plaster portion. Therefore the Opponents no.1 has arranged ambulance for further treatment into the hospital of Opponent no. 2. The Opponent no.2 has performed 4 operations on dt.12/02/2007, 24/02/2007, 14/03/2007 and on 31/03/2007 respectively without allowing anybody to meet the patient. The .. 6 .. Operation was performed by Dr.Jhabak Nitin (MS) and Dr.Mrs. Bharti Khandekar(MH). The condition of the patient was not improved. As per Watson-jones = Fratures and joint injuries stated that the aims of operation is 1) to attain a more satisfactory reduction that is possible by conservative means. 2)To improve the probability of bony union. 3)To produce internal fixation of such a standard that, if required plaster can be discarded and mobilisation be commenced immediately post operatively. Thus assuring rapid return of joint mobility. The Opponents has stated that there is no monetary consideration. However the Complainant has produced documents stating therein that the Opponent no.1 and 2 have taken consideration amount from the Complainant. Hence the Complainant falls within the category of Consumer and the Opponents are service providers. The Complainant has filed expert opinion of Dr. Manoj Rajani MD (Medicine) D.M.(Neurology) Consulting neurologist stating therein Nerve conduction was performed in both upper limbs:- IMPRESSION:- This study is suggestive of severe Right Median, Ulnas Radial Nerve palsy with site of lesion below elbow. As per above expert opinion it is clyster clear that the Opponents have committed deficiency in their services towards the Complainant. B) Explanation: The Opponent no. 1 diagonised that the Complainant is suffering from “Compartment Syndrome”. The most common cause of compartment syndrome are 1) Fracture 2) soft tissue injury 3) arterial injury 4) drug overdose (Limb compression) and 5) burns. The diagonis of compartment syndrome is primarliy a clinical one based on muscle and nerve ischemia. The hallmark of muscle and nerve ischemia is pain. The Pain is persistent progressive and unrelieved immobalisation. The Complainant has followed all the instructions of the Opponents, still he is suffering pain and swallow in the left hand. The Opponent no.2 has operated the Complainant for 4 times but no symptoms of recovery, amounts to deficiency in service by the Opponents. The Complainant has suffered through out and is still suffering and will suffer through out his life because of the negligent attitude of the Opponents. During oral arguments the Complainant has stated that the Civil surgeon of Thane district has issued certificate to the Complainant stating therein the 45% disability of .. 7 .. the Complainant. The expert opinion of Dr. Manoj Rajani conducted test which is suggestive of severe right median ulnar Radia Nerve palsy with site of lesion below elbow. The Complainant has filed rulings of the Hon'ble Supreme Court reported AIR 1969 SC 128 wherein it is stated that the medical practioner owes various duties towards patient and he must act with skill and knoweledge and he must exercise reasonable degree of care, this is the least which a patient expects from a doctor. Due to negligency and deficiency in service by the Opponents the Complainant has become permanently disabled for which they are responsible to compensate to the Complainant appropriately. With this view, we pass the following final order. O R D E R 1. Complaint no. 564/2008 is partly allowed and disposed off. 2. The Opponents to pay Rs. 10,00,000/-(Rs. Ten lacks Only) to the Complainant for causing permanent disability due negligency in service. 3. The Opponents to pay Rs. 20,000/-(Rs. Twenty Thousand Only) to the Complainant towards mental harassment and legal expenses. 4. The Opponents to follow this order jointly and serverally within 30 days from the receipt of this order through direct payment. 5. Certified copies be furnished to the parties free of charges.
THANE DATE : 06/03/2010
(MR. P. N. SHIRSAT) (MRS. BHAVANA PISAL) MEMBER PRESIDENT I/C - | 
