By Sri. K. Gheevarghese, President:
Complaint filed under section 12 of the Consumer Protection Act.
The Complaint in brief is as follows.
The 2nd Complainant sustained grevious injuries of bone fracture in connection with a road accident. The 1st Complainant is the father of the 2nd Complainant. The injured was admitted in the 2nd Opposite Party's hospital and was treated by the 1st Opposite Party on the very same day of the injury. The treatments of the 2nd Complainant includes injection and a bandage was also applied at the region of injury. An external fixature was fitted in the right forearm. The 2nd Complainant felt severe pain and foul smell came out from the injury on the next day. After the application of external fixature and dressing puss also discharged from the effected area. The Opposite Party took the matter silly and advised that the pain will be subsided in course of treatment. Foul smell and discharge of puss when became aggressive the1st Opposite Party was conducted. But no further treatment was given for pain and sufferings of the complaint. The 2nd Complainants health became worsened. The entire body showed pale in appearance. When the treatment of the Opposite Party found improper and negligent, the Complainant discharged the patient from the hospital and was admitted in Baby Memorial Hospital Calicut. The right forearm of the patient was subjected for an emergent surgery. The doctor who treated from the referred hospital suggested that the infection of the wound was only because of the debridment of wound without cleaning it. The negligent and unskilled treatment resulted sloughing of volar muscles amounting to infection which led to acute compartment syndrome. The external fixature used was of inferior quality and a 2nd operation was conducted a plastic surgery was also conducted on 24.2.2003. In using the substandard external fixature, the Opposite Parties has done very serious offense and negligence in service. For the treatment by the Opposite Party huge amount was drawn from the 1st Opposite Party. The lack of caution and care resulted infection of injury. Since the wound became septic and the treatment given was not proper, the Complainant had to suffer a lot. If sufficient care and caution was applied in treatment, the 2nd Complainant would have not undergone further treatment, instead the injuries would have been healed. The accident took place on 25.1.2003. The Opposite Parties may be directed to pay Rs.4,50,000/- towards compensation for the deficiency in service in the treatment given to the 2nd Complainant. 2. The Opposite Party filed version on their appearance. The sum up of the version filed by the 1st Opposite Party is as follows. The allegation of the Complainant consist of intricate question of law and facts which are to be evaluated and decided by a Civil Court. It is admitted that the patient named Rajesh was admitted in the hospital on 25.1.2003 met with a road traffic accident. The patient at the injury of multiple facial injuries with infra orbital fracture compound displaced fracture of both bones in right forearm lacerated wound in volar aspect with fractured bone exposed contaminated with mud and road materials and organ had angular deformity. Undisplaced fracture upper ¼ th of Ulna right and Multiple abrasions over right ankle and thigh. The patient was given antibiotics and other appropriate medicines. Under local anesthesia the lacerated wound was cleaned. The mud contaminated were removed in washing. To rule out the complications of head injury the patient was undergone CT scan and surgery which was done on 27.1.2003. The wound debridement and stabilization of fracture were done by the external fixation. When the patient was complained of severe pain X-ray was taken at the point of swelling at the proximal level of forearm. On examination it was noted that the patient is with impending compartment syndrome. The surgical exploration was followed on 30.1.2003. At the time of operation the foul smelling discharge puss and necrotic materials from volar muscles were found which were removed and the wound kept opened. The liberal fasciotomy advised as early as possible were not attended by the bystanders of the patient there after the patient was discharged at the request of the party. The further treatments of the patient was not known to the Opposite Party there was no negligence on the part of the Opposite Parties in the treatment given. Proper and sufficient care was given in the treatment of the wound any how the patient developed compartment syndrome which is an expected and well documented application commonly in forearm fractures. Upon fractures especially contaminated with mud and others the applications as such is possible. The advice of the Opposite Party for an early fasciotomy was least bothered. The discharge of the patient was upon the insistence of the Complainant. The allegation of the substandard materialed fixature are absolutely baseless. The complaint is motivated with the intension to tarnish the reputation of the Opposite Part's hospital. The Opposite Party is to be given the compensatory cost.
3. In the additional version filed, the Opposite Party further contended that there is no ground for enhanced compensation for the Complainant. The allegation of disability and period of treatments are also false and exaggerated. The complaint is to be dismissed with cost.
4. The 2nd Opposite Party filed version. According to them the dispute in this complaint cannot be decided by the Consumer Forum, the cause of action arose within the territorial jurisdiction of Kozhikode Consumer Forum. One patient named Mr. Rajesh was admitted in the hospital on 25.1.2003 as the O.P. No. 2038, the treatment continued till 30.1.20003. The external fixation was done on 27.1.2003. The allegation of the Complainant that the patients injury caused foul smell and the treatments of injury in a silly manner are nothing but false. Three days after applying the fixation the patient was complained of pain for which medicines were given. Whenever the patient complained of severe pain and other discomfort the patient was attended from time to time. The discharge of the Complainant on 30.1.2003 was upon the request of them. The slowing of the volar muscles due to the negligence on treatments and cleaning the wound are completely denied. The fixature used was standard one and it was fixed in proper manner. The treatments were given by the competent and efficient doctors and allegation of exorbitant amount collected from the patient is also false. The 2nd Opposite Party's hospital is run by a charitable trust, the hospital is motivated for service to the poor and to all others the rate is moderate. There was no negligence on the part of this 2nd Opposite Party. All the services were in accordance with the teaching and practice of provisions. The complaint filed is with ulterior motives to extract money illegally from the 2nd Opposite Party. The 2nd Opposite Party also filed additional version. The Compensation claimed by the Complainant is not based on any reason. The allegations of the complaint are complicated which cannot be decided within the purview of Consumer Protection Act. The complaint is to be dismissed with cost to the Opposite Party.
5. Points in consideration are: Is there any deficiency in service? Relief and cost.
6. Point No.1: - The contention of Opposite Party that the dispute in the complaint cannot be considered being it consist of the complicated points which requires more evidence and as a result it is to be decided by a civil court cannot be considered. It is the settled position that the deficiency in service or any negligence in the medical treatment is to be decided under the provisions of Consumer Protection Act. 7. The case of the Complainant is that the 2nd Complainant had undergone treatment by the 1st Opposite party in the hospital of the 2nd Opposite Party. The 2nd Complainant sustained fracture injuries of both bones (Right) lower ¼ upon type III fracture ulna upper 1/3 (Right) with other injuries. The 2nd Complainant was treated as an inpatient from 25.1.2003 till 30.1.2003. The treatment of the 1st Opposite Party was not proper. The wounds were not cleaned and the foreign body present in the wound were not removed. The external fixation was of substandard quality. Lack of proper debridment and the use of fixature of substandard quality consequently lead to further surgeries. From the wounds discharge of puss and foul smell came out the patient had severe pain and discomfort. The request of the Complainant for further exploration of wound and to avoid further complication of surgery was least considered. The patient had undergone treatment after discharge from the Opposite Party's hospital. The treatments were taken from Baby Memorial Hospital, Calicut and Ganga Hospital Coimbathoor. The negligence on the part of the Opposite Party caused deformity of the organ. The patient had to suffer the malunion of the fractured bones. The Opposite Party's contention is that the treatments given was so competent and effective. The complications of injury was only because of the compartment syndrome which is more common in the forearm injury. The debridment of the wound was done. The surgery was not done emergent being the patient had head injury and had a history of loss conscious. The patient's father and other bystanders were informed of the complication of compartmental syndrome and liberal fasciotomy. The discharge from the hospital was upon the insistence of the patient's father and other bystanders. If the patient had undergone any other complication, the Opposite Parties are not liable for it.
8. The 1st and 2nd Complainants filed proof affidavit. Ext.A1 to A12 and Ext.X1 to X2 (a) are marked. The doctor who treated the patient in Baby Memorial Hospital, Calicut is examined as PW2. The matter which is to be considered herein, whether the patient deformity of the organ including the malunion of the fractured bone are connected to the treatments. The patient was admitted in the hospital on 25.1.2003 at about 9 P.M. Ext.X1 the treatment records of the 2nd Opposite Party's hospital shows that operation was done on 27.1.2003. The external fixation was also made in use before the discharge of the patient which was on 30.1.2003. In between this period of admission and discharge the 2nd Complainant had been under the treatments of the 1st opposite party. The doctor who treated the patient from the referred hospital is examined, according to the opinion of this expert and experienced doctor from the very beginning of the patient's admission in the hospital the possibility of compartmental syndrome would have anticipated. If sufficient care and caution was taken in the treatments from the beginning the further complication would have been avoided. According to PW2 the infection is possible due to inadequate cleaning of wounds. The texture in volume 3 of Campbell's operative orthopedics. The compartmental syndrome is possible 20% commonly in forearm fracture. An expert in profession would have anticipated all the possibilities of complications and in order to rule out those things due care and caution could have taken. According to PW2 the deformity of the organ of the 2nd Complainant could be rectified only if the patient has undergone and another operation. The 2nd Opposite party has no complaint that the treatments which availed from the referred hospital lead to the complications. The doctor who treated the patient from the firstly referred hospital further deposed that if proper treatments were given the earliest stage the injury could have been cured without any deformity.
9. The debridment of wound and fasciotomy was done from the Baby Memorial Hospital Calicut, the external fixature was removed for the reasons of pin track infection. The 1st Opposite Party is examined as OPW1, on examination deposed that in order to rule out complications of the head injury the surgery was not done in the earliest stage. It is further admitted by the 1st Opposite Party that the compartmental syndrome would have been anticipated in the very beginning itself. There is malunion of segmental ulna which caused deformity of the organ, according to the opinion of the doctor who treated from the refered hospital an another surgery is required for the rectification of the organ. The 2nd Complainant is treated by the 1st Opposite Party from the hospital of the 2nd Opposite Party. There is deficiency in service on the part of the Opposite Parties and the point No.1 is decided accordingly.
10. Point No.2:- The 2nd Complainant had undergone treatment from other higher centers after the discharge from the hospital of the 2nd Opposite Party. Ext.A11 series consists all the payments made for the different treatments including the treatment of the 2nd Opposite Party's hospital. As per the bills Rs.2,68,058/- are spent by the Complainants for the treatments availed. The Complainant had to spent the amount for the treatment of the injuries followed by the road traffic accident. Whether the entire expense met by the Complainants are in consequences of the negligence or any latches on the part of the Opposite Parties cannot be ascertained in evidence. The claim of the Complainant and the amount spent for the entire treatment cannot be quantified for compensation. The 2nd Opposite Party is a student who is an engineer under graduate. The 2nd Complainant had to undergo another operation if the deformity is to be rectified. Considering all these aspect the Complainants are to be compensated along with cost for the pain and sufferings which had undergone by the 2nd Complainant.
In the result, the complaint is partly allowed. The Opposite Parties are directed to pay the Complainants jointly and severally Rs.50,000/- (Rupees Fifty thousand only) along with cost of Rs.2,000/- (Rupees Two thousand only) within one month from the date of receiving this order. In case of any failure on the part of the Opposite Party the Complainants can execute this order asper the provisions of law.
Pronounced in open Forum on this the 27th day of December 2008.
PRESIDENT: Sd/-
MEMBER- I : Sd/-
MEMBER-II: Sd/-
A P P E N D I X Witnesses for the Complainant: PW1. P. Rajan. Complainant No.1. PW2. Dr. Tony Kavalakkat Orthopaedic Surgeon. PW3. Rajesh. Complainant No.2. Witnesses for the Opposite Party: OPW1 Dr. Surendran. Orthopaedic Surgeon. OPW2. Syster Asees Abraham Administrator, Assumption Hospital, Bathery. Exhibits for the Complainant: A1. Copy of Discharge Summary A2. Copy of Discharge Summary. A3.Series.(4 sheets) Copy of Lawyer notice. dt:24.05.2003. A4. (5 Sheets) Reply Notice. dt:15.07.2003 A5. (3 sheets) Reply Notice. dt:18.07.2003. A6.(2 sheets) Follow up Summary A7.(3 sheets) Discharge Summary. dt:29.07.2003. A8. Case sheet from Ganga Medical Centre. dt:06.07.2006. A9. Disability Certificate. dt:19.07.2005. A10 series (3 in numbers) Photos and Negatives. A11 Series (193 in numbers) Cash Receipt. A12 Series (17 in numbers) X- Rays.
X1.(20 sheets) Case sheet (Assumption Hospital)
X2.(20 sheets) Case sheet (Ganga Medical Centre) X2(a) Case sheet (Baby Memorial Hospital) MO1. External Fixator. Exhibits for Opposite Party: B1. Copy of Application filed in Motor Accidents Claims Tribunal. B2.series. Invoice.
......................K GHEEVARGHESE
......................P Raveendran | | 
