BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 33/2003 Filed on 24/01/2003

Dated: 27..02..2010

Complainant:

P. Ajay alias Ajayan, S/o Pankajakshan, Chitra Nivas, Konathuvila Veedu, Nilaikkamukku, Kadakkavoor, Thiruvananthapuram.

(By Adv. A. James Fernandez)

Opposite party:

Dr. M.M. Raffi, Shifa Nursing Home, Mananakku, Perumkulam – P.O., Alamcode, Attingal.

(By Adv. V. Manikantan Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 09/08/2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 15..12..2009, the Forum on 27..02..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that on 10/11/2002 while the complainant was cutting timber he was injured on his left big-toe, that immediately he was brought to opposite party's Nursing home and he was treated by the opposite party as O.P.No: 2680, that after examining the wound the opposite party sutured the same on the same day, that medicines were administered as per the opposite party's prescription. Complainant had undergone treatment there for 7 days on payment of the daily bills, that even after treatment the complainant's left big-toe increased to an excruciating extent with swelling thereon. Complainant when complained about it to the opposite party on 18/11/2002, opposite party shouted at him saying that it is none of his fault and that one cannot go inside the wound and find out the exact position and opposite party advised him to apply some Ayurvedic oil, that on 19/11/2002 when complainant consulted in the S.P Fort Hospital, Thiruvananthapuram, it was found that the vein near Phalenges on the left big-toe of the complainant was cut off due to the injury and that due to opposite party's professional negligence, that complainant was treated in S.P. Fort Hospital and undergone surgery on 11/12/2002 and was discharged on 14/12/2002 and treatment continued as out patient. There was undue delay in finding out the real position of the wound and to give timely treatment due to the negligence of the opposite party. Hence this complaint to direct opposite party to pay a compensation of Rs.3,50,000/- to the complainant.

2. Opposite party filed version contending that the complainant was an out patient in the opposite party's hospital, that on the first day itself, opposite party sutured the wound after cleaning the wound so as to arrest the bleeding and after administering TT injection and pain killers told him to attend Medical College Hospital for better treatment. At that time complainant told the opposite party that the very next hospital to his house is Doctors Speciality Hospital and he would like to go there and meet expert for better management. On the next day complainant again approached the opposite party and told him that he got better relief from the opposite party and further told that he is a coolie by profession and he could not meet the expenses of other hospitals and requested to dress his wound, that the process of dressing was repeated for two or three days and after that the complainant approached the opposite party and told him that he sustained the said injury in a traffic accident and so he want to file a case before the Police so as to file compensation case before the MACT, Attingal and for that purpose opposite party has to issue a certificate stating all the details to suit an accident case, that opposite party expressed his inability to issue such a certificate since the complainant has not stated this from the first day of his examination and there is no other injuries found on his body to substantiate with an accident. The allegation raised in the complaint is not correct. Complainant has no cause of action against the opposite party who primarily treated the complainant as a first aid. Opposite party has not admitted and treated the complainant. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is negligence or deficiency in service on the part of the opposite party?

2. Whether complainant is entitled to get compensation?

In support of the complaint, complainant has filed an affidavit of himself as PW1 and Exts. P1 to P4 were marked. Complainant has been cross examined by the opposite party. Opposite party did not file affidavit or documents.

4. Points (i) & (ii) : It has been the case of the complainant that on 10/11/2002 while the complainant was cutting timber he was injured on his left big-toe and immediately he was brought to opposite party's Nursing home and he was treated therein as O.P.No: 2680. Ext. P1 is the photocopy of O.P.No: 2680 issued by the opposite party. On a perusal of Ext. P1 dated 10/11/2002 it is seen that Ajayan's wound was sutured on that day, and charged Rs.80/- by the opposite party, on 11/11/2002 treatment continued and charged Rs. 30/- by the opposite party. It is to be noted that the treatment continued from 10/11/2002 to 17/112002 and from 12/11/2002 to 17/11/2002 opposite party had collected Rs. 20/- per day from the complainant. Ext. P2 is the copy of the prescription about the injection and capsules given by the opposite party. Ext. P3 is the copy of the medical bills issued by S.P Fort Hospital. Ext. P4 series consist of Advocate notice, postal receipts, acknowledgment cards, reply notice issued by opposite party, certificate and other bills issued by S.P Fort Hospital. On a perusal of certificate dated 23/1/2003 issued by S.P Fort Hospital, it is seen that Ajay was admitted there vide O.P.No.02/26397, diagnosis mentioned therein shows injury to left foot on 10/11/2002, inability to extend the big-toe by left foot – EHL injury left foot, was an out patient treatment from 19..11..2002. Date of admission: 9..12..2002 and date of discharge: 14/12/2002. As regards details of treatment, it is seen recorded as "Delayed primary repair of Extension hallucis longus tendon Left foot". Complainant has been cross examined by opposite party. In his cross examination complainant has admitted that on 10..11..2002 injury was cleaned and stitched and medicines were administered by the opposite party that he paid Rs.80/- for the treatment, that he was not admitted in the opposite party's hospital, he was directed to review on the next day and accordingly he went there and paid Rs. 30/- for treatment to opposite party. It is the specific case of the complainant that his injury was not healed by the treatment given by opposite party and he was directed to approach Multi Speciality Hospital for better treatment and that he did not get any relief from opposite party's treatment and day by day his pain was increased. Even after removal of the stitch the pain did not contain. He went to S.P Fort Hospital on 19/11/2002, initially he was treated as an out patient and after healing the wound, surgery was done in the S.P Fort Hospital. On going through the documents available on the record and deposition given by the complainant it is to be mentioned that this is a case of medical negligence. There is nothing to show that complainant was admitted as an in patient in opposite party's hospital and nothing to show that the treatment in S.P Fort Hospital was due to the negligence of the opposite party. No expert evidence was adduced by the complainant, to corroborate the case of the complainant. Without any expert evidence or without sufficient material on record we cannot attribute medical negligence to opposite party. The onus is upon the complainant to prove that there is medical negligence or violation of medical ethics on the part of the opposite party. On a perusal of the available records it can be seen that opposite party doctor has cleaned the wound and sutured the same in order to arrest bleeding and administered some medicines on charging meagre amount as fee. Evidently the process of dressing was repeatedly done in the opposite party's Nursing home. Medical negligence not proved. In view of the above we are of the considered opinion that complainant failed to establish his case which deserves to be dismissed.

In the result, the complaint is dismissed. There will be no order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 27^th day of February, 2010.

G. SIVAPRASAD,

PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No. 33/2003

APPENDIX

I. Complainant's witness:

PW1 : Ajay

II. Complainant's documents:

P1 : Photocopy of O.P.No.2680 issued by the opp. Party

P2 : Copy of the prescription about the injection and capsules given by the opposite party.

P3 : Copy of the medical bill issued by S.P Fort Hospital.

P4 : Series consist of advocate notice, postal receipts, acknowledgment cards, reply notice issued by

opposite party. Certificate and other bills issued by SP Fort Hospital.

III. Opposite party's witness: NIL

IV. Opposite party's documents: NIL

PRESIDENT