:: O R D E R ::

(ORAL ORDER BY SRI Y. KRISHNA, I/C PRESIDENT)

1. THIS IS A COMPLAINT FILED U/SEC.12 OF C.P.ACT, 1986

Cause of action arose on 25-9-1992 when the first operation was performed and on 9-7-1994 when the second operation was performed.

Hence, the complainant prayed to direct the Opposite Party to refund the charges collected by the Opposite Party at Rs.60,000/- and Rs.25,000/- with interest and grant other reliefs.

2. Counter filed by the Opposite Party stating that all the averments made in the complaint are cooked up and falsely to put this Opposite Party into trouble and hardship and get succeed with ill motivated acts. And denied that Opposite Party had given assurance with in a period of 2 or 3 months complainant become alright.

Opposite Party further admitting that the complainant was admitted in their Nursing Home on 21-9-1992 with a road traffic accident injuries treated primarily at an unqualified doctor at his village with injuries of complicated, communited fractures of left thigh bone, avulusion of skin serotum and penis, superficial abrasion foot right side, superficial abrasion left fore arm. And stated that on the day of admission complainant was in severe shock and wounds were bleeding all wounds debrided and toileted and the patient made comfortable in a traction The patient was operated on 26-9-1992 successfully by passing a intramedullary nail and binding together the un-supported multiple fragments of bone by a wire. The scrotal and other injuries were repaired. All multiple soft tissues healed well within two weeks time and was discharged from the hospital with the advise of absolute bed rest to the patient. The complainant was brought for followup, which shows early signs of fracture healing. The doctor advised to come after three months. Further he visited on 10-2-1993, X-rays showed fracture consolidation (Union) and the patient was advised to have protected partial weight bearing on the limb with the help of auxillary crutches, further advised him not to go to agricultural fields and not to drive any vehicle, not to walk on stair cases, and he was advised follow up every six weeks until bone becomes solidly united. Contrary to it the patient came on 18-9-1993 with problem of pain at the fracture site, due to un protected weight bearing on the limb patient came to the hospital on a scooter without even holding a Hand stick and was attending agricultural works in his village, at an earliest stage of seven months. This type of fracture usually takes a minimum of six months to one year of period for total consolidation. X-rays at that time showed bend at the fracture site and even the rod inside was also bent. All this happened due to his negligent callus, on cooperative attitude of patient never tried to understand the importance of patient’s co-operation in such fracture healing. He was warned of dangerous sequelac of non-cooperation and rough attitude towards the management and healing of fracture and was advised adequate medicine and follow-up regularity insisted. Later he was seen after another gap of 5 months i.e., February 1994. All this is because of good medical care he got relieved of pain and fracture consolidated. Every time doctor used to see some damage to fracture healing due to his negligent hurried attitude. He used to demand for early attendance of his activities but never used to concentrate on intensity and seriousness of problem. Each time he used to come to the hospital without using any hand stick, some times he came walking from bus stand i.e., near about 1 kilometer from the Hospital.

And further stated that fortunately he was seen on 9-7-1994 again five months gap with the complaint of pain at hip region, relief of pain at fracture site and insisted for removal of nail as it was causing pain at hip region and he wanted to get rid of the nail with the superstitious attitude of foreign material staying in his body and may cause harm to him in future. After X-ray confirmation of strong and solid union of fracture site, Doctor removed the nail through a very small operation on left hip region, it s customary to remove the nail if it causes any problem in buttock region after a period of one to two years. Here the nail is removed on 9-7-1994 nearly after two years of period patient stayed in the hospital for one week and went home happily with the proper advise of taking bed rest for six weeks and using hand stick for the later period of development. He was seen in our Nursing Home on 28-7-1994. This was his last visit to hospital of Opposite Party. He was perfectly all right even at the last visit and was not advised any surgery or expressed any doubt about the fracture union.

Later the development whatever happened and what went wrong with the patient or whether he sustained any injury again the gap of surgery between removal of rod and some procedure in Challa Nursing Home i.e. nearly six and half months gap we are unaware and unconcerned. The prescription of Challa Nursing Home is not revealing any rod fixation or nail fixation into the bone. The prescription is revealing fracture of right femur shaft non-union corrected under general Anaesthesia. Any fracture non-union is not going to be corrected momentarily under general Anaesthesia. As such patient’s fracture was on left side not on right side. Their documents show that with their expert treatment patient was still laying in bed even after (5) months of period. All this information made us to suspect that the patient might have sustained another injury with the consequences lateron. And prayed to dismiss the complaint with exemplary costs.

3. During the enquiry, the Complainant filed his affidavit as evidence and marked Ex.A1 to A23 documents by his affidavit. The Opposite Party filed his counter affidavit as evidence and no documents are marked. One Dr Jagan Mohan Reddy is examined as Pw.2 in Chief and cross examined by the Advocate for Opposite Party.

4. Heard arguments of both side advocates.

5. The points for consideration are:

6. POINT No.1 :- As per the averment of the complaint and the counter there is no dispute about taking treatment by the complainant in the Hospital of Opposite Party, Who treated the complainant. The complainant has stated in the complaint and affidavit that the complainant received a fracture to his left leg on 21-9-1992. And for the purpose of proper treatment, he approached the Opposite Party, and admitted in the Hospital of Opposite Party. After thorough check ups and tests, the Opposite Party advised to the complainant to undergo an operation for fixing of Steel rod in the leg or the entire leg has to be amputated. As such, the Opposite Party operated the leg removed by fixing steel rod in it. After treating for 15 days, the Opposite Party discharged the complainant from his hospital with an assurance that within a period of 2 to 3 months the complainant will become alright and recover properly and he will able to walk and do his regular work. According to the advice of the Opposite Party Doctor, the complainant had taken complete rest and entire treatment as prescribed regularly without any fault. As there was no development or improvement in the position of the complainant, the complainant visited the Opposite Party Doctor several times (Ex.A1 to Ex.A5) and for each and every attempt till July 1994 the Opposite Party used to prescribe some medicines and giving assurance that within few days the complainant would walk and do his regular works.

The Opposite Party stated in the counter and counter affidavit filed by him that the patient was operated on 26-9-1992 successfully by passing an intromedullary nail and binding together the unsupported multiple fragments of bone by a wire. The scrotal and other injuries were repaired. But on perusal of Exhibit A1 to A5, the complainant has taken treatment for 22 months from the Opposite Party i.e. 21-9-1992 to 19-7-1994. When the patient was operated successfully on 26-9-1992, why the Opposite Party has given treatment to the complainant till July 1994, which clearly shows that treatment given by the Opposite Party was not on proper lines. Further to the patients with age group 30 to 35 years, the fracture of the bones becomes solidly unite within a period of 3 to 6 months as per the opinion of expert Orthopaedic Doctors. Here, in the case, the complainant was aged 32 years only at the time of operation conducted by the Opposite Party. Further the Opposite Party stated in the counter that the patient was advised to have protected partial weight wearing on the limb with the help of auxillary crutches. Generally, no patient will take risk for the sake of his health and no patient will spoil his future, by not following the instructions of the Doctor. Further the doctor has not written anything about the negligent act of the patient on the prescriptions. It clearly shows that the Opposite Party is unnecessarily blaming the complainant that he has not followed the instructions given by the Doctor and this contention of the Opposite Party is false in view of the fact that the Opposite Party did not cross examine the complainant on this aspect. This contention of Opposite Party seems to be unbelievable one. This fact is nowhere mentioned on the prescriptions prescribed by the Opposite Party.

In this case, the documents i.e. X-rays and prescriptions given by the Opposite Party Doctor was sent to the Principal, Osmania Medical College, Hyderabad for report and opinion by this Forum. After receipt of the record, the Principal, Osmania Medical College, Hyderabad has referred the matter to Dr. Dutta Tamloorker, Professor and Head of the Department of Orthopaedics, Osmania Medical College, Hyderabad for his opinion. The said Professor and Head of the Department of Orthopaedics, Osmania Medical College, Hyderabad has given his report which is reproduced again :

Subsequent analysis of the available X-rays show hypertrophic non-union i.e. an attempt of fracture union by the body which was not allowed to consolidate properly due to non compliance on the part of the individual or systemic diseases. The Intramedullary nail was removed and I am not aware weather an alternative method was attempted for achieving fracture union and consolidation of the fracture.

A dynamic compression plate was done and there is no evidence of a bone graft was done at the time. Even the last available X-ray does not show evidence of solid union of the fracture of the shaft of femur."

In the said report, it is stated that the Intramedullary nail was removed and the Professor is not aware whether an alternative method was attempted for achieving fracture union and consolidation of the fracture by the Opposite Party. As can be seen from the said opinion that the treatment is wrong treatment given by the Opposite Party Doctor to the complainant. The Opposite Party counsel can vehemently argued that the Opposite Party Doctor removed the nail after X-Ray confirmation of strong and solid union of fracture, but the Opposite Party did not file the case sheet or operation notes in evidence to prove his version.