Advocate Naresh Kamdar for the complainant
Advocate Anil P. Tadkalkar for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 31st December 2013
This complaint is filed by patient against the Doctor and the Hospital for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Vadgaon Bk., Pune 411 041. He had injury to his left leg. Hence, he approached to the Opponent for treatment on 12/12/2009. He was admitted in the Hospital and examined by the Opponent No.1 and he diagnosed the injury as Compound Trimallcolar Ankle and advised implant which is a surgery for all practical reasons. On 13/12/2009 complainant was on medication and examination. X-ray was taken. On 14/12/2009 he was taken to the Operation Theatre of the Opponent. Anesthesia was given to the complainant and five fixettors were implanted to the injured leg of the complainant. On 21/12/2009 Complainant was discharged after the instructions of the Opponent No.2. On 25/12/2009 complainant reported to the Opponent to verify the progress. Then dressing was done but x-ray was not taken. He was asked to visit the hospital after six weeks. After 15 days from the day of removal of plaster the x-ray was taken to know the result of the operation. At that time complainant found that there was no relocation of the dislocated portion for which the said operation was performed. Hence, complainant has arrived at the conclusion that the treatment which was given by the Opponent was not correct and the operation was failed and he had required to undergo one more operation. Accordingly, he was operated in Dinannath Mangeshkar Hospital, Pune and had to pay once again the charges for the same to the Deenanath Mangeshkar Hospital. Then complainant had issued notice to the Opponent and claimed compensation of Rs.3,00,000/- as well as refund of Rs.33,200/-. Opponent replied the notice falsely. Hence, complainant has filed present complaint for deficiency in service and claimed abovementioned amount from the Opponent.
[2] Opponents resisted the claim by filing written version in which it is specifically denied that the treatment given by the Opponent was not correct. The details about the treatment which was given by the Opponents is referred in the written version. It is further contended that as the Complainant was patient of severe diabetes. Instead of open surgery, the external fixettors were applied to him in order to avoid complications. The treatment given by the Opponents was as per the norms approved by the medical science. In order to support the treatment given by the Opponents, the Opponents have obtained certificates from four expert orthopedic surgeons and those have opined that, the treatment given by the Opponent in the form of external fixettor for a compound ankle fracture is according to the established protocol and was in tune with prescribed by text/ science, practice and procedures. Opponents have further contended that the complaint is vexatious, false and filed to harass the Opponents and to extract money. Opponents have prayed for dismissal of the complaint.
[3] After considering the pleadings of both parties, scrutinizing the voluminous documentary evidence on record as well as hearing the argument of both counsel, following points arise for our determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that the Opponents have caused deficiency in service while giving medical treatment to him ? | In the negative |
2 | What order ? | Complaint is dismissed. |
Reasons-
As to the Point Nos. 1 and 2-
[4] The undisputed facts in the present proceeding are that the complainant had sustained injury to his left ankle and was admitted in the hospital of the Opponent. It is not denied by the Opponents that, the treatment was given to him and instead of open surgery, the external fixettor were applied to the injury of the complainant. It is the case of complainant that, due to the wrong treatment there is mal-alignment and fracture was not united and that amounts to deficiency in service. It is also pointed out by the complainant that he had required to undergo surgery in Deenanath Mangeshkar Hospital, Pune after taking treatment from the Opponents. It is the case of Opponents that the treatment which was given to the complainant was as per the approved norms, procedure and practice. As the complainant is a case of uncontrolled diabetes having more than 300 mg blood glucose and was on Ayurvedic medicine at the time of treatment. Hence, the chances of healing of injury was less. Hence, instead of open surgery, the treatment of external fixettor was given to him. According to the Opponent, there are three methods of fracture treatment. They are as follows-
1. Closed reduction and plaster immobilization-
In this method, fracture is set by manipulation and not by surgery and immobilized in the cast or splint.
2. External Fixettor-
In this method, fracture is indirectly set by implanting pins in bones away from the fracture site which are connected externally by metal rods. This type of surgery is usually performed in open or compound fractures and when the soft tissue envelop is damaged because of injury.
3. Open reduction and internal Fixettor-
In this method, fracture is set by performing open surgery and bone fragments are fixed by screws, plates or rods. It is performed when the soft tissue envelop is healthy.
It is the choice of the surgeon to opt for any of the three procedures narrated as above. As the complainant is the patient of severe diabetes instead of open surgery, the Opponent has decided to fix external fixettor. The role of soft tissue envelop is a major factor in the decision for surgical timing as in all ankle fractures, but it is even more important in the diabetic patients.
[5] Opponents have supplied text as regards the methods of treatment as regards fracture. They have also supplied the certificates issued by four orthopedic surgeons. All of them have unanimously opined that the treatment given to the complainant was on the right track.
[6] The learned Advocate for the complainant argued before the Forum that Dr. Modak has observed mal-alignment and there was no union of fracture. He has mostly relied upon the report of Dr. Rakesh Jamkhandikar, dated 7/12/2011. He is from the Department of Radiology and Imaging, Deenanath Mangeshkar Hospital and Research Center. It is true that as per he said report there is mild mal-alignment of the left ankle joint. Soft tissue swelling is noted around the ankle joint and a small ill-defined lucent area is seen in the calcaneum just interior to the articular surface. It is significant to note that the complainant has not established that the said mal-alignment is occurred due to the wrong treatment given by the Opponent. The interrogatories were also given to the Opponents. Opponents have replied all the interrogatories and in none of the interrogatories it is established that the mal-alignment was due to the wrong treatment. It is more significant to note that even no orthopedic surgeon or expert has opined that the mal-alignment which was found, amounts to medical negligence and that is at the hands of the Opponents and it was caused due to the wrong treatment given by the Opponents.
[7] Mal-alignment is incorrect alignment of bones and it is a natural process. As per the text which is provided by the Opponents, it is crystal clear that in case of severe diabetic patient, the treatment of external fixettor is a proper treatment. Complainant has failed to establish that the treatment given by the Opponents is incorrect treatment and due to which mal-alignment occurred. Hence, this Forum is of the opinion that, complainant has failed to prove the charge of medical negligence against the Opponents. Hence, we answer the points accordingly and pass the following order –
:- ORDER :-
1. Complaint is dismissed.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 31/12/2013
