D.O.F. 04.01.2002 D.O.O. 07.02.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K. Gopalan : President Smt. K.P. Preethakumari : Member Smt. M.D. Jessy : Member Dated this the 7th day of February, 2011. C.C.No.06/2002 Vinodhan, S/o. Kumaran, Beedi worker, Kattipurayil House, : Complainant Kilaloor, P.O. Bavode, Kannur District. Dr. Padmanabhan Nair, Orthopaedic Surgeon, : Opposite Party Ashoka Hospital, Kannur. (Represented by Adv. P. Mahamood) O R D E R Sri. K. Gopalan, President. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 1,00,000 as compensation for damages and mental pain together with the cost of the litigation. The complainant’s case in brief are as follows : Complainant sustained injury on his middle finger of left hand by a fall on 05.07.2001. He approached the opposite party soon after the incident and opposite party advised to take x-ray from Ashoka Hospital. After verifying the x-ray and examination of the finger the opposite party told the complainant that it is only a dislocation of Pip joint of the left middle finger and it can be cured within two weeks. Opposite party massaged and put the middle finger in straight position and bandaged the same along with the middle finger and advised him to visit after two weeks. Thereafter on 07.07.2001, 10.07.2001 and on 14.07.2001 due to severe pain complainant had visited the opposite party. He advised to take medicine and assured that there was nothing serious. He was advised to visit again on 19.07.2001. When he went on 19.07.2001 the opposite party called him to undergo a surgery to cure the ruptured finger. Opposite party Doctor directed to undergo surgery immediately and told him that the delay will effect the functions of the palm. Complainant gave his consent and surgery was performed inserting a rod itself on the same day. He was treated as inpatient in opposite party hospital till 23.07.2001. He was discharged on the day with an advise to visit him after 5 days. Thereafter on 28.07.2001, 02.08.01, 07.08.01, 12.08.01, 21.08.01, 03.09.01 and 14.09.01 the complainant had visited the opposite party as directed by him. In the meanwhile opposite party removed the rod inserted by him on 19.07.01 and told him that the stiffness of the finger would be corrected by undergoing physiotherapy treatment at Physicure Hospital, Thavakkara, Kannur. Accordingly complainant underwent physiotherapy. He has spent ` 5,000 for the treatment. Since there was no improvement complainant consulted another ortho-paedic Surgeon. After thorough examination Doctor Sri. Harikumar, Thalassery, Co-operative Hospital had diagnosed that the defect was due to malunion. The doctor had also advised the complainant that there was remote possibility of recovery. The mal union of the finger was due to the negligent and deficient treatment of the opposite party. The movement of the left finger of the complainant is 100% restricted. Being a beedi roller the complainant is incapable of rolling beedi and hence could not do his evocation thereafter. Evenafter taking the treatment from Thalassery Hospital there was no improvement. Therefore the complainant consulted another well-known orthopaedic Surgeon Dr. M. Shantharam Shetty, Mangalore and he has diagnosed that the present defect of the finger is caused due to malunion. The complainant had spent more than ` 5,000 for further consultation of two doctors and other expenses. The complainant had undergone severe mental pain and he had lost his earning capacity. It was happened so only because of the negligent and deficient service rendered by the opposite party. Hence he entitled for the compensation and hence this complaint. In pursuance of notice the opposite party entered appearance and filed version. The brief facts of the version of opposite party are as follows. The complainant Sri. Vinodan came to the opposite party on 05.07.2001 with a swelling deformed middle finger to right hand following an injury caused by a fall few days back. Immediately after the fall he was treated by a local massager and after few days of massage the pain and swelling increased and the complainant could not move finger without pain. It was at this point he sought to the help of opposite party at his clinic. The opposite party after examination came to a provisional diagnosis of “Mismanaged (neglected) Dislocation Promimal Inter phalangeal joint of middle finger and he was asked to take an x-ray to confirm the diagnosis. It was confirmed after examination of x-ray. Its location was reduced by the opposite party and his stripping was done inflexion of the finger along with ruin finger to get immobilization. He was thus prescribed with medicine and asked to report after 10 days. He was particularly advised not to remove the stripping and was to report the opposite party if there was discomfort or aggravation of pain. The complainant reported opposite party on 18.07.01 removing the strapping by himself without the knowledge and consent of the treating Doctor and further swelling of the Pip joint of middle finger. Opposite party explained the above prognosis and the need for the open reduction and physic. He was gone upon for such a surgical intervention either to go to Dhanalakshmi Hospital, Kannur whether the service of reconstructing and Surgeon is available or to undergo surgery from the opposite party’s hospital. He refused to get rendered, Dhanalakshmi Hospital and consent to undergo surgery from the opposite party’s hospital. He was given one day’s time to take a decision and to report on 19.07.2001. He reported on 19.07.01 for admission for surgery. After getting informed consent he was undergone surgery on 20.07.2001 and fixed the Inter phalalangeal jont with a single k-wire (steel rod) under local anaesthasia. Post operatively he was given antibiotics and anti-inflammatory drugs. On 23.07.01 he was discharged with advice to report after 5 days. He reported after 5 days and sutures was removed and advise physiotherapy to mobilize the finger. This instruction was not followed by complainant properly. In this case the complainant has sought an unscientific method of treatment without understanding the seriousness of the injury and the finger was massaged by a local massager. This actually aggrevated the condition. Secondly after reduction in strapping up of mobilization the strapping was removed without knowledge or consent of the Doctor. The removal of strapping by himself caused dislocation which necessitated an open reduction. If he has followed the instructions and retained strapping surgical intervention could have avoided and mobilization of the joint could have been carried out. It is due to the negligence of the complainant that the outcome of the treatment affected in the case of the complainant. The opposite party took a risk in undertaking the treatment when reported with neglected injury and continued treatment inspite of the fact that the complainant did not carry out the instruction given by the opposite party. This ultimately affected outcome of the treatment for which the opposite party is not responsible but the negligence on the part of complainant is alone responsible for the consequences. There is no deficiency on the part of opposite party and hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the remedy as prayed in the complaint. 3. Relief and cost. The evidence consists of oral testimony of PW1, PW2, DW1, Ext.A1 to A12, Ext.B1 and B2 and Ext.X1 to X3. Issue No.1 to 3: Admittedly complainant was treated by opposite party on 05.07.2001. The case of the complainant is that he approached opposite party on 05.07.2001 for treatment of the injury of his middle finger of the left hand due to a fall. He was treated by opposite party but his finger became twisted due to the negligence of treating Doctor. Thereafter he has undergone treatment at Thalassery Co-operative Hospital and afterwards at Kasturba Medical College, Manipal. But he could not achieve complete recovery. Hence this complaint. Opposite party on the other hand contended that he has treated the complainant with utmost care and diligence. He tried his level best to attain a functional pip joint inspite of the negligent attitude taken by the complainant. Complainant has sought an unscientific method of treatment and his injured finger was massaged by a local massager which caused to aggrevate the condition. After dislocation was reduced by the opposite party and strapping was done inflexion of the finger along with ring finger to get immobilization. Complainant himself without the knowledge and consent of Doctor removed the strapping. Negligent attitude of the complainant and violation of the instruction given by the Doctor had affected the result of the treatment. The opposite party took utmost care and diligence and tried his level best to attain a functional pip joint in respect of the negligent attitude taken by the complainant. Complainant adduced evidence by way of chief affidavit in tune with the pleadings. As per the evidence of complainant he has approached opposite party doctor on 05.07.2007 which is an admitted fact. The injury sustained by the complainant is due to a fall. Complainant has pleaded and adduced evidence by affidavit evidence that he had approached the Doctor on the same day of fall ie on 05.07.2007. Opposite party doctor on the other hand contended that complainant sustained injury few days back and immediately after fall he was treated by a local massager and the pain and swelling increased and at this point of time he approached the Doctor. The 2nd sheet of Ext.B1 case sheet dated 05.07.2001 is a relevant document to be depended upon to ascertain this fact. It has not been challenged by the complainant anywhere at any time. It is seen recorded in Ext.B1 that ‘fall few days ago’. It is also recorded ‘locally treated’. Complainant has not produced any referred slip, prescription or anything of that sort in order to show the entry of treatment. With the available evidence of record it can only be assumed that the complainant approached the Doctor only after few days of sustaining injury. Though specifically alleged by the opposite party/ treating doctor complainant did not say anything about this aspect in his affidavit evidence. Complainant also kept total silence about this aspect in the complaint also. Hence there is substance in the contention that the complainant concealed this delay and the treatment and the massage of local massager, purposefully before the Forum. Naturally the possibility of aggrevation of the condition due to this way of treatment cannot be ruled out. Silence of complainant further more strengthened the doubt. However Ext.B2 reveals that 2nd opposite party came to provisional diagnosis. Ext.B2 recorded neglected dislocating of proximal interphalangeal joint of middle finger and the x-ray, cash bill shown the particulars that middle finger AP LAT. Opposite party contended that the dislocation was reduced by the opposite party and the strapping was done inflexion of the finger along with the ring finger to get immobilization. Sheet 2 of Ext.B2 prescription sheet of opposite party doctor reveals recorded that ‘with reduced and strapping done’. Indication also seen to report after 10 days on 05.07.2001. Opposite party also contended that complainant was particularly advised not to remove the strapping and was to report to opposite party if there was any discomfort or aggravation of pain. Opposite party contended that the complainant reported on 18.07.2001 removing the strapping by himself without the knowledge and consent of the opposite party, causing this dislocation and further swelling of the pip joint middle finger. This was not denied by complainant instead he has stated in affidavit evidence that after the removal of sutures on 23.07.2001 he was advised physiotherapy to mobilize the finger. This instruction was not followed by the complainant properly. Ext. A2 prescription sheet also reveals that complainant reported on 18.07.01 before opposite party doctor and he advised complainant for open reduction and fixation but complainant did not say anything about his reporting on 18.07.2001 and of removal of strapping. Anyway it was not specifically denied. At the same time complainant has the case that he has visited the Doctor on 07.07.01, 10.07.01 and 14.07.01. Complainant has not produced any prescription or any sort of slip to show that he has approached the Doctor on those days. He has no case that prescription has not been given. However it is pertinent to note that the case of the opposite party that he reported before him remove the strapping has not been denied. Strapping if removed without the consent and knowledge of the treating doctor it is to be taken into consideration and it is not possible to ignore the contention of the treating doctor that it is caused re-dislocation and further swelling of the pip joint of the middle finger. Moreover it can be seen that complainant was advised to undergo physiotherapy. Opposite party has specific case that he was advised physiotherapy to mobilize the finger and this instruction was not followed by complainant properly. But complainant except saying “hnc-ensâ stiffness physiotherapy sNbvXv icn-bm-IpT F¶v ]d-ªp. A§s\ physiotherapy sNbvXp h¶p.” No details has furnished to establish that the physiotherapy has been done properly. In the light of the above discussion and going through the available evidence of record we are under the impression that the negligence on the part of complainant has contributed much adversely effecting the result of the treatment. Complainant could not succeed in proving deficiency in service on the part of opposite party. Hence we find that the complainant is not entitled for any compensation. Thus issue No.1 to 3 are found against the complainant. In the result the complaint is dismissed. No order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Cash bill dated 05.07.2001. A2 series. Cash receipts issued from Ashoka Hospital. A3 series. Cash receipts issued from Ashoka Hospital, Kannur & Tellicherry Co-operative Hospital. A4 series. Cash receipts issued from Tellicherry Co-operative Hospital, Kasturba Hospital, Manipal. A5. Prescription dated 15.12.2001. A6 series. Slips from Occupational Therapy Department of Kasturba Hospital. A7. Treatment Certificate from Kasturba Hospital dated 23.07.2002. A8. Certificate dated 25.11.2002 from Kasturba Hospital, Manipal. A9. X-ray dated 05.07.01. A10. X-ray dated 18.07.01. A11. X-ray dated 07.08.01. A12. X-ray dated nil. Exhibits for the opposite party B1. Case sheet of complainant maintained by OP. B2. Discharge summary from Ashoka Hospital. Witness examined for the complainant PW1. Complainant PW2. Dr. C. Harikumar Witness examined for the Court X1. Case sheet from Thalasseri Hospital. Witness examined for the opposite party DW1. Dr. P.V. Padmanabhan Nair /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
