D.O.F. 25.02.2005
D.O.O. 21.12.2011
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 21st day of December, 2011.
C.C.No.54/2005
Nikhil Vinod, aged 4 years, minor
Represented by his mother Chithralekha,
W/o. Vinod as next friend,
Guardian, : Complainant
Vayalil Kunil House,
Perigadi Post,
Thalassery Taluk, Kannur Dist.
(Rep. by Adv.Vinod Kumar Chambalon)
1. The General Manager,
Indira Gandhi Co-operative Hospital,
Manjodi, Thalassery-3,
Kannur District, 670 103 : Opposite Parties
2. Dr. Dhanapalan, M.S. (Ortho)
Orthopaedic Surgeon,
Indira Gandhi Co-operative Hospital,
Manjodi, Thalassery - 3.
Kannur Dist. 670 103
(Both Rep. by Adv. P. Mahamood)
O R D E R
Sr. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to pay ` 4,00,000 with 10% future interest as compensation together with cost of this litigation.
The case of the complainant in nutshell is as follows : The son of the complainant happened to be hospitalized in Indira Gandhi Co-operative Hospital, Thalassery following a fall from the varandha of his house on 31.05.2004. 2nd opposite party directed to take X-ray of the left forearm and fracture of the radius and ulna was confirmed. Thereafter plaster-cast was applied by 2nd opposite party and on the same night at 10.30 he was discharged with direction to follow up after a week. On 02.06.2004 night at about 10.00 the injured complainant developed scrotal oedema and had allergic rashes all over the body. On the next morning on 03.06.04 he was brought before 2nd opposite party and after examination told that there was no problem with plaster-cast and advised to consult paediatrician, 2nd opposite party also told that rashes developed was due to allergy. The injured was taken to Dr. Sidhique, the paediatrician attached to the same hospital. He prescribed certain medicines. On the same day night complainant experienced severe pain on the left hand and brought to the hospital at 11.00 PM. The duty doctor Sunil Kumar examined him and after consultation with 2nd opposite party has prescribed certain medicines. He advised the child would be alright within two days. On next day 04.06.2004 it was noticed fever, numbness, pain and swelling over the left arm of the complainant child. He was then brought to 2nd opposite party on 05.06.2009 and admitted in the hospital. On 06.06.2004 2nd opposite party replaced the plaster-cast with a new one. Mother noticed that her son was unable to move his finger and the same was bought to the notice of the 2nd opposite party and he replied nothing to be worried. On the next day the mother of the complainant noticed that the entire function of her son’s arm has been failed and he could not feel the sense of pain. So she requested 2nd opposite party to refer her son to a higher centre for treatment. After repeated request and intervention of the relatives child was referred to Kasturba Medical College and admitted the child there on 08.06.04. Dr. Benjamin Koshi, after examination informed complainant that the active movements of the finger, sensation, over finger, hand and distal fore arm were absent. He has also informed that condition is serious and there is little scope and complete recovery. He has even opined sometime it might be cut and removed. Doctor has conducted emergency fascitomy and debridement. Twice he was taken up for debridement. The daily saline wash and safratulle dressing were done. Split skin grafting was done on 18.06.2004. Under GA graft taken from the left thigh. Patient was initially put on injection. Magramycine was changed to Inj-magnex. He was discharged on 27.06.2004 with an advise to review on 13.07.2004. In spite of all these treatment even now the active movement of the finger, arm and sensation of finger, hand and distal fre-arm are absent. The improper plaster-cast around the complainants son’s arm by 2nd opposite party has caused the progressive development of arterial compression and reduced blood supply and has resulted permanent contractual deformity of the arm. ‘Compartment Syndrome’ has developed due to negligence. Prior to that when he suffered pain, fever swelling over the area of plaster-cast it was brought to the notice of second opposite party but proper treatment had not been given to complainant by 2nd opposite party. Compartment syndrome could not have been developed if he was given proper treatment. The sheer neglect of 1st and 2nd opposite parties are responsible for the loss of the entire function of complainants son’s left arm as a permanent disability. Complainant sent lawyer notice to opposite parties. 2nd opposite party issued a reply stating baseless allegation.
Pursuant to the notice 1st and 2nd opposite party filed version jointly denying the main allegations of complainant. The brief of the version is as follows :The mother of the complainant brought him at the Hospital on 31.05.2004 with a history of fall at home. On examination there was swelling, tenderness and angular deformity of the left forearm. X-ray revealed fracture of the radius and plastic deformity of ulna with angulations of both. There was no distal neuro vascular deficit at that time. A written informed consent was obtained after explaining in detail about the pros and cons of the procedure of closed reduction under General Anaesthesia. Under aseptic care the deformity of the left forearm was corrected by closed manipulation under general anaesthesia and an above elbow pop cast was also applied. The mother was also instructed to bring back the child in case of pain, swelling of the fingers etc if occurred. Patient was brought on 03.06.2004 with complaints of fever and there was complaints regarding cast application patient was referred to paediatrician specifically for the treatment of fever. On 05.06.04 patient was bought to 1st opposite party Hospital with complaints of persisting fever and rashes over the body which was diagnosed as urticaria. The 2nd opposite party examined and found mild swelling of the left fingers. Then slit the east to the skin and loosed it to prevent compartment syndrome. The patient was admitted under the paediatrician. On 06.06.2004 the P.O.P. cast was removed and an above elbow P.O.P. slab was applied in aid to make the swelling to subside. On 07.06.04, the patient was examined and found the radial pulsations and finger movements were good. But inspite of all efforts mild loss of sensation and reduction of fingers movement was noticed. 2nd opposite party referred the patient to Dr.Benjamin Joseph at Kasthurba Medical College, Manipal for further expeditious expert management. The second opposite party administered standard treatment and adopted universally accepted procedure for management of fracture. The reference to higher centre was made at the right time. 2nd opposite party exercised all reasonable skill and care as expected from a reasonable and qualified orthopaedic surgeon in the management of identical case. Hence to dismiss the complaint.
On the above pleading the following issues have been taken for consideration.
1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled for the remedy as prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral evidence adduced by PW1, PW2, PW3, DW1, Ext.A1 to A10 and Ext.B1.
Issues 1 to 3 :
It is an admitted case that the son of the complainant Master Nikil Vinod was brought to the 1st opposite party Hospital on 31.05.2004 following a fall at home. X-ray was taken and confirmed the fracture of the radius and ulna of his left fore-arm. Deformity was corrected by closed manipulation and an above elbow POP cast by the treating doctor 2nd opposite party. He was allowed to go with an advise for follow up. The case of the complainant is that 2nd opposite party did not give proper treatment eventhough the symptoms of pain, fever and swelling etc were brought to the notice of the 2nd opposite party. The complainant alleges that on 02.06.2004 night at about 10.00 the injured developed scrotal oedema and had allergic rashes all over the body. He was brought before the opposite party on the next morning 03.06.04 and on examination told that rashes developed due to allergy and there was no problem with plaster cast. Then the paediatrician Dr.Sidhique prescribed certain medicines. On the same day at 11.00 pm the patient was brought to the hospital again and Dr. Sunilkumar, the duty doctor examined him. He prescribed certain medicine after consultation with 2nd opposite party. On 04.06.2004 it was noticed fever, numbness, pain and swelling over the left arm. The child was again brought to 2nd opposite party on 05.06.2004 and admitted in the hospital. 2nd opposite party replaced the plaster-cast with new one on 06.06.04. On noticing that her son was unable to move his finger the same was brought to the notice of 2nd opposite party but he replied nothing to be worried. On the next day she noticed that the total function of the child’s arm had been failed and he could not feel the sense of pain. Hence she requested to refer the matter to higher centre. After repeated request and intervention of relatives child was referred to Kasthurba Medical College on 08.06.2004, wherefrom the condition was confirmed to the ‘compartment syndrome’ caused by tightness of the plaster cast. He was discharged therefrom on 06.07.2004 but with a permanent disability of left arm. Complainant’s main case is that the disability and deformity is caused due to the improper treatment of the 2nd opposite party. Opposite party’s case on the other hand is that opposite party had administered standard treatment and adopted universally accepted procedure for the management of the fracture of the patient and at the right time, the case was referred to higher centre. 2nd opposite party has exercised reasonable skill and care as expected from a reasonable and qualified orthopaedic surgeon in the management of identical case.
The patient child was brought to opposite party’s hospital on 31.05.2004. The evidence adduced by PW1 goes to show that 2nd opposite party confirmed fracture after examining the X-ray and it was manipulated administering general anaesthesia. A cast was also applied to forearm and discharged. On the night 02.06.2004 the patient/child was developed scrotal oedema and rashes all over the body. Next day morning on 03.06.04 he was brought to 2nd opposite party doctor. He was examined by 2nd opposite party and told her/PW1 that there was no problem with the plaster cast. Doctor then advised to take him to paediatrician Dr.Siddique, who thereafter administered some medicine for allergy. The complainant’s son was brought again to hospital at about 11.00 pm night due to severe pain. The duty doctor after consulting with 2nd opposite party prescribed some medicine. But on 04.06.2004 since the complainant’s son was developed fever, pain and swelling with mumbness on the left arm contacted 2nd opposite party and advised to consult next day if the condition was not better decreasing the fever. Her son complainant was taken to 2nd opposite party and admitted in hospital on 05.06.2004 since he was suffered with fever, pain and swetting. On 06.06.04 the plastic cast was removed and replaced with new one. The fact that there was no movement for the fingers were bought to the notice of 2nd opposite party. But the answer was nothing to be worried. Next day on 07.06.04 when the mother of the complainant noticed that the entire function of her son’s arm had been failed she requested 2nd opposite party to refer him to higher centre. After repeated request of her and her relative patient was referred to Kasthurba M.C. She further stated that 2nd opposite party improperly put the plaster-cast around the patient’s arm which is caused the progressive development of arterial compression and reduced blood supply and has resulted permanent contractual deformity of the arm. She has also stated that it is due to negligent administration of treatment ‘compartment syndrome’ has developed to her son. Pain, fever, swelling over the area of plaster cast, mumbness etc were developed prior to compartment syndrome and the same was then and there bought to the notice of 2nd opposite party. But sufficient care was not taken to diagnose and to apply proper treatment.
2nd opposite party in his proof affidavit stated that the deformity of the left fore arm of complainant child was corrected by closed manipulation under general anesthesia and applying pop cast on 31.05.2005. He has also stated that child was again brought to hospital on 03.06.2004 and there was no specific complaints regarding plaster cast application on left arm and patient was referred to paediatrician specifically for the treatment of fever. It can be seen that 2nd opposite party has not examined the child seriously on 03.06.2004 to make assure that the fever has, in any way no connection with the fracture and P.O.P. cast. A thorough check up was warranted by 2nd opposite party since there was pain, fever and swelling. It can be seen on the same day the child was again brought to hospital. The duty doctor consulted 2nd opposite party and prescribed some medicine. No attempts were made to diagnosis the disease. Though Dr.Sunilkumar examined him 2nd opposite party has not taken the condition of the child seriously. Mother of child adduced evidence that 2nd opposite party was contacted on 04.06.04 again since the complainant’s child was developed fever, pain and swelling with numbness. This was denied by opposite party. But subsequent development of the condition of the child shows that there was every possibility in usual course to contact 2nd opposite party. It can be seen that the same child was admitted in hospital next day. So there is nothing unusual if the condition was reported bad on the previous day. If the condition was bad on the previous day the parents would naturally try to contact the treating doctor since he was under continuous treatment. There is not need to disbelieve the evidence of mother that they contacted 2nd opposite party. Anyhow child was admitted in hospital on 05.06.2004. The previous treatment done by Dr.Siddeek in consultation with 2nd opposite party and the treatment done by Dr.Sunilkumar in consultation with 2nd opposite party however found to be an utter failure. It is a plain fact that on 03.06.2004 on wards the child was not attended with scientific way of treatment. The negligence shown on these crucial days as far as the child is concerned is large enough to cause far-reaching consequences. The treatment given by Dr. Sidhique and Dr. Sunilkumar were found totally a failure. Both of them admittedly prescribed medicine in consultation with 2nd opposite party. No relief found in this treatment mainly on the reason that 2nd opposite party did not applied his mind in diagnosing the disease of the child. This alone is sufficient to cast deficiency in service on the opposite parties for the entire consequences of the subsequent developments of the events.
2nd opposite party stated in his proof affidavit that on 05.06.04 the patient was brought to the hospital with complaints of persistent fever and rushes over body which was diagnosed as urticaria. He further stated that he slit the cost and loosed it. The evidence of PW1 on the other hand is that on 05.06.04 the child was admitted in the hospital and plaster cast was replaced on 06.06.2004. She further stated that no movements of the fingers were brought to the notice of the 2nd opposite party but his answer was only nothing to be worried. Her evidence further shows that on 07.06.04 noticed the entire function of her son’s arm had been failed. 2nd opposite party contended that the movement of fingers were not restricted or reduced till 07.06.2004 and maintained oxygen saturation is 98% to 100% on pulse oximeter on 6th and 7th of June with good radial pulsation. It is further contended that the said findings prompted 2nd opposite party to believe that the vascular supply was intact and therefore he persisted with the same management. The contention taken by 2nd opposite party make it clear that the same management continued till the patient referred to higher centre. Ext.A5 is the letter written by 2nd opposite party to Dr.Benjamin Joseph in K.M.C. This letter written on 07.06.2011 which shows written thus “Initially the swelling subsided. Since yesterday the swelling has again increased and now has features of compartmental syndrome” 2nd opposite party has examined patient child on 05.06.2004 and found mild swelling of the left fingers. It was also true that patient had persisted fever and rashes over the body. 2nd opposite party did not take serious prob into the cause of trouble suffered by the patient. 2nd opposite party contended that P.O.P. cast was slit and loosened it to prevent compartment syndrome. On 05.06.2004 patient was admitted. As per case sheet Ext.B1 it can be seen nothing has been done to diagnose the trouble the patient was suffered. The condition of the blood circulation was not seen recorded. Complainant adduced evidence that symptoms of pain, fever and swelling were taken to the notice of opposite party. It can be seen that the child was taken to hospital again on 03.06.2004. The complaint of the child patient was not effectively attended by opposite parties. He was again brought to hospital at midnight. But enough care was not given. It was not actually made effective attempt to diagnose what was the actual ailment the child was suffered. On the day 05.06.04 also effective investigation to the actual ailment was not conducted. Ext.B1 case sheet does not show any sort of test had been conducted on the day. Radial pulsation was also not recorded. The case sheet on 05.06.04 does not reveal the diagnoses. How did opposite parties diagnosed urticaria is also not seen recorded. Ext.B1 is silent and it does not show any precaution had been taken to assure that there was no complication arosed in connection with the fracture and P.O.P. cast. It shows till the child was referred no such serious attempt had been made to trace out what was the actual trouble the patient happened to suffer. The case record goes to show that 2nd opposite party prescribed no medicine on 05.06.04. It is also not properly recorded at what time 2nd opposite party examined the patient and what was his diagnosis. Ext.B1 case sheet of patient Nikhil Vinod containing 9 sheets maintained at Indira Gandhi Co-op. Hospital, Thalassery cannot be considered as a properly maintained case sheet. That itself reflects the negligence on the part of opposite parties. What had happened actually and what was the role of 2nd opposite party in the treatment of patient Nikhil Vinod on 05.06.04, 06.06.04 and 07.06.04 had also not recorded properly. Ext.B1 case sheet wouldn’t show recorded the proper treatment on the basis of a scientific diagnosis that had been provided to the patient child on 03.06.04, 05.06.04 and 06.06.094, whatsoever, claimed by the opposite parties. Since those days following the closed manipulation under general anaesthesia and above elbow P.O.P. cast application are very crucial, 2nd opposite party is duty bound to explain that he had vigilantly applied his mind in the treatment of the child when the child was brought again on 03.06.04 and therafter. But it is seen opposite parties failed to show that the treatment on those days were provided applying mind properly 2nd opposite party contended that he slit the cast to the skin and loosened it to prevent compartment syndrome. The cast had been slit since there was suspicion of compartment syndrome. But he did not make it ascertain whether there was compartment pressure or not by using manometer. Manometer is used to assess the compartment pressure. The evidence of Dr. V. Sunil shows that it is by manometer compartment pressure is assured. He has stated that “Compartment pressure assess sN¿p-¶Xv Manometer BWv. Swelling Dff ka-b¯v hnc-ep-IÄ move sN¿m-\p-ff km[-yX Ipd-hm-Wv.” He has also stated that pulse oximeter is the crude way of assessing compartment syndrome. On 05.06.04 when child patient was brought to him he examined and found mild swelling of the left fingers. But he contended that finger movements were found good. Ext.B1 case sheet does not show Manometer or any other instruments had been used so as to form clinical impression. 2nd opposite party recorded in I.P. sheet that finger movement was good. But he did not record any of his suggestion. Nothing was diagnosed. Complainant has adduced evidence by way of affidavit that “03.06.04-mw Xo¿Xn Fsâ aIs\ H¶mw FXr-I-£n-bpsS Bip-]-{Xn-bn sIm-t]mbn cmw FXr-I-£nsb ImWn-¨p. cmw FXr-I£n aIs\ ]cn-tim-[n¨v ]vfmÌ-dn-«-Xn\v Ipg-¸-sam-¶p-anà F¶v ]dªv Ip«n-I-fpsS tUmIvSsd ImWn-¡m³ \nÀt±-in-¨p. AXp-Iq-SmsX aIsâ ico-c-¯n Npa¶v XSn-¨Xv dmjkv h¶Xv AeÀPn aqe-am-sW¶v ]d-ªn-cp-¶p. AXp-{]-Imcw aIs\ AtX Bip-]-{Xn-bn-ep-ff tUm. kn²n-Jns\ ImWn¨p At±lw Ipd¨v acp-¶p-IÄ Ipdn¨v X¶v ho«n-te¡v t]mIm³ \nÀt±-in-¨n-cp-¶p. F¶m A¶s¯ Znhkw cm{Xn aIsâ CSXv ssI¡v Ie-i-emb thZ\ h¶Xv ImcWw cm{Xn 11 aWn¡v hopw H¶mw FXr-I-£n-bpsS Bip-]-{Xn-bn-se-¯n-¨p. Uyq-«n-bn-ep-m-bn-cp¶ kp\nÂIp-amÀ F¶ tUmIvSÀ aIs\ cmw FXr-I-£n-bp-ambn _Ô-s¸-«-Xn\p tijw ]cn-tim-[n¨p acp-¶p-IÄ sImSp-¯p. AXn\p tijw cmw FXr-I£n H¶v cv Znh-k-¯n-\Iw Fsâ aI\v kpJ-am-hp-sa¶v And-bn-¨p. tUmIvSÀ ]d-ªXv hni-z-kn¨p Rm\pw aI\pw ho«n-te¡v Xncn¨p t]mbn. F¶m ]nsä¶v 04.06.04-þ\v aI\p ]\nbpw ssI¡v ac-hn¸pw thZ-\bpw ho¡hpw ImW-s¸-«-Xn-\m tUmIvSsd cmw FXr-I-£nsb t^mWn hnfn¨p kwkm-cn-¨-t¸mÄ ]\n amdn-bn-sÃ-¦n ]nsä¶v Bip-]-{Xn-bn sN¶v ImWm³ ]d-ªp. 05.06.04-þ\pw aI\v ]\nbpw thZ-\bpw ho¡hpw Df-f-Xn-\m cmw FXr-I-£nsb ImWn¨p Bip-]-{Xn-bn AUvanäv sNbvXv. ” The version filed by 2nd opposite party after two months of filing of the affidavit evidence by the complainant. Hence by additional affidavit complainant adduced evidence taking into account the pleadings of opposite party. Complainant stated that “Fsâ aIsâ ico-c-¯n h¶ Nph¶ ]mSp-IÄ URTIC ARIA F¶-Xm-sW¶ ]{Xn-I-bn {]kvXm-hn-¨Xv hmkvX-h-a-Ã. ]n¶oSv “Compartment Syndrome” hcp-¶-sXm-gn-hm-¡m³ thn ]vfmÌÀ Ab-¨n-«p-m-bn-cp-¶p-sh¶ {]kvXm-h-\bpw hmkvX-h-a-Ã. ”
It is an admitted fact that the child patient was brought to opposite party’s hospital on 03.06.04. Since the patient was brought to hospital on 03.06.04 it can be believed the evidence of complainant that the complaint of the child was started on the previous night 02.06.04. Anyhow Dr.Siddeek attended the patient. The case of the complainant is that at the same day night, the child patient was brought to the hospital again at 11.00 pm due to severe and unbearable pain on the left hand. On this occasion Dr.Sunil Kumar examined and prescribed medicine in consultation with 2nd opposite party. Herein also the mode of approach of the doctor reveals that even if the child was brought again that too in the midnight, the matter was not taken seriously. If the child was again brought to hospital on the same day that too in the night, there is no doubt that the patient might have suffered an intolerable situation that compelled them to seek the shelter of treating doctor. But opposite parties responded in a quite irresponsible manner. Truly speaking, prescribed certain medicine and sent back pacifying that everything will be alright within days in the usual course. It cannot be ignored that the occasion warranted an active interference of treating doctor, since the patient was brought second time on the same day. Complainant has also case that 2nd opposite party was contacted on 04.06.2004 since the child was developed fever, pain and swelling with mumbness on the left arm. PW1 adduced evidence that “F¶m ]ntä¶v 04.06.2004-þ\v aI\v ]\nbpw ssI¡v ac-hn¸pw thZ-\bpw ho¡hpw ImW-s¸-«-Xn-\m tUmIvSÀ 2þmw {]Xnsb t^mWn hnfn¨p kwkm-cn-¨-t¸mÄ ]\n amdn-bn-sÃ-¦n ]ntä¶v Bip-]-{Xn-bn sN¶v ImWm³ ]d-ªp. 05.06.04-þ\pw aI\v ]\nbpw thZ-\bpw ho¡hpw Df-f-Xn-\m 2þmw FXr-I-£nsb ImWn¨p Bip-]-{Xn-bn AUvanäv sNbvXp.” There is nothing to disbelieve this evidence of PW1. The child was sent back from the hospital on the midnight of 03.06.04. If there was no relief, there is nothing unusual in saying that they had contacted 2nd opposite party. The nature of treatment presented on 03.06.04 and the nature of approach of the doctors, on both occasions of the same day leads to presume that the 2nd opposite party might have been given the above answer. The version of 2nd opposite party denied the same and stated it as false. But it is a fact that the child was admitted in the hospital on 05.06.04. If that be so, it is quite evident that the condition of the patient after returning from the hospital on 03.06.04 midnight had again been deteriorated on 04.06.04. There is nothing to disbelieve PW1 if she has stated that 2nd opposite party was contacted by her on 04.06.04. With this background, the entry in the case sheet Ext.B1 if examined it does not show, on 05.06.04 any earnest attempt had been done by 2nd opposite party so as to diagnosis the cause of ailment of the patient. The I.P. sheet on 05.06.2011 and case record sheet on 05.06.04 of case sheet does not show recorded the cast was slit to the skin. If 2nd opposite part slit the east to the skin and loosened it that should have been recorded in case sheet. But the cast sheet produced here Ext.B1 consist of 11 pages did not carry any entry to that effect. Under such a situation the evidence of the complainant that, it is false to say that the plaster cast was slit and loosened on 05.06.2004, cannot be disbelieved until such fact is proved otherwise. 2nd opposite party has the burden to prove the same because there is medical evidence that, if there is delay in plaster slit to release the pressure it would cause for occurring compartment syndrome. PW2 in his oral evidence stated that “Plaster slit sN¿p-¶Xv delay Bbm Compartment Syndrome hcpw.” So if such an entry has not been found place in case sheet it can only presume that on 05.06.04 the plaster cast had not been slit and loosened. This is a case where patient was referred since there was features of compartmental syndrome. Ext.A5 referring letter itself shows this was a case of compartment syndrome. The negligence shown by 2nd opposite party in the treatment of the patient different from the expected line of diligence from 03.06.04 to 05.06.04 plays the crucial role of entire misfortunes that had been crept up. It is pertinent to note the evidence of medical expert Dr. V.Sunil that “5 Znhkw sImv Compartment Syndrome h¶n-sÃ-¦n ]ns¶ AXn\v km[-yX Ipd-hm-Wv.” So compartment syndrome developed in this case after getting the patient in the hands of treating doctor. The available facts shows that from the night 02.06.2006 the patient child was in touch with 2nd opposite party till he was discharged on 08.06.2006 after referring him to KMC. 2nd opposite party, if shown, sufficient and expected attention right from 03.06.04, the entire picture should have been different. The close analysis of the evidence makes clear that upto 06.06.04, the role of the treating doctor 2nd opposite party remained inactive with flow of negligence which is nothing other than deficiency in service. The facts of the case proves that this is a case wherein all possible care on the part of opposite parties had not been provided in treating the child patient. Opposite party contended that the movement of fingers were not restricted or reduced with good radial pulsation. But the laboratory data of KMC shows that – ‘Active movements of finger and wrist absent, so also sensation over finger hand and distal forearm absent. Eventhough, opposite parties produced the case sheet Ext.B1, the entries made therein is quite insufficient to prove that the patient was given a scientific treatment. The opposite parties were even failed to diagnose the complication arosed on the patients hand. The facts of the case warranted the opposite party to prove that he has taken enough care and discharged his duty to the extend possible, which the opposite parties failed. The child actually required emergent effective treatment from 03.06.04 to 08.06.04. But unfortunately he did not get the required treatment on those days. The omission on the part of opposite party in this case is a clear negligence. This is an omission which a reasonable and prudent man would not expected to do in the ordinary course.
The counsel of the opposite party lodged a vehement argument relied upon the decision in Nirmal Kapoor Vs Nehru Hospital & Post Graduate Institute of Medical Education & Research & others reported in 1(2006) CPJ 594 that there is no evidence to hold opposite parties liable for the development of compartment syndrome. It is not proved that the opposite parties were not competent. There is no evidence that they have not exercised reasonable competence in the case of the above complainant. Learned Counsel argued that it is not possible for every professional to possess the highest level of expertise or skill in that branch which he practice. The question is whether he was possessed of the requisite skill which he professed to have possessed and did he exercise the same with reasonable competence or not. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
Counsel for the opposite parties who contended further relying upon Malka Taranum Vs. Dr.C.P. Gupta & Another that in a case of medical negligence what is required to be seen is whether the doctor concerned charged with negligence has acted in accordance with the general and approved practice and if it is proved that he has followed such practice then it is enough to clear him of any charge of negligence. The opposite party doctor who treated the child and applied plaster on the fracture are fully qualified and experienced. The complainant was not able to produce any evidence to prove that the opposite party did not exercise reasonable degree of skill, knowledge and care. Hence no charge of negligence can be attributed on the shoulders of opposite parties. He has further argued that the opposite party administered treatment and adopted universally accepted procedure for the management of the fracture of the boy and at the right time, the case was referred to higher centre. There is no evidence to prove the treating doctor was not competent negligently acted resulting in compartment syndrome complainant is not entitled for any relief.
However it is difficult for us to digest that the opposite party has deligently dealt with treatment of child. This is a case wherein opposite party himself found features of compartmental syndrome. Ext.A5 would prove it. Compartment syndrome if admitted there is no doubt it might have developed within five days. So it is a question of common sense to understand that the child had been suffering unbearable pain from the very outset. Thus it is quiet natural that complainant might have met the treating daughter as an inevitable necessity so as to get relief from the unbear pain within 5 days of fracture. The fall of patient was reported on 31.05.2004. Complainant has the case that on 03.06.04 the child was brought to 2nd opposite party. He was again brought back to hospital on the same day due to severe pain. On 04.06.04 he was developed fever, mumbness, pain and swetting. On 05.06.09 admitted in the hospital. If compartment syndrome developed, no doubt there would be severe pain. Complainant cannot keep idle without contacting the treated doctor because the pain out of compartment syndrome would be unbearable. Hence there is no scope for any contention that complainant did not approach the opposite party before 5 days. No parents could keep silence under such situation except taking shelter before the treating doctor. So it is sure and certain that the compartment syndrome developed when patient was in the hands of treating doctor. It is pertinent to note that opposite party suspected compartment syndrome but he did not properly assessed whether there was compartment pressure or not. The evidence of medical expert Dr. V.S.Sunil goes to show that compartment pressure is measured/assessed by “Manometer”. Opposite party did not challenge this evidence. But it can be seen that opposite party did not use “Manometer”. That means he did not properly assess compartment syndrome. It shows treatment given to the patient in the case in hand was not reasonable or responsible. Opposite party’s case is that he has used pulse oximeter for assessing compartment syndrome. Evidence of Dr.Sunil reveals that pulse oximeter is the crude way of assessing compartment syndrome. This is not challenged by opposite parties. The omission to use Manometer to assess compartment syndrome is a breach of duty and thus a clear negligence. It is not expected from a prudent reasonable doctor to adopt the crude way of using Pulse oximeter. There is no justification on the part of opposite party for avoiding this acceptable practice that is expected to be followed by a prudent doctor. The clean reading of the facts with clubbing evidence quite clearly reveals that there is breach of duty resulting in damage on the part of opposite parties.
Having applied our mind to the available documents and other evidences, in our opinion, there is negligence on the part of opposite parties. We are fully under the impression that if the required treatment, which we expect from a reasonable and prudent doctor had been provided to child patient from the day first reported from 03.06.04 onwards the unfortunate event could be avoided. Opposite parties are not able to claim that their case sheet should prove that there was no negligence on their part. There is burden on the part of hospital and the treating doctor to show that there was no negligence involved in the treatment. Hon’ble Supreme Court in Savita Garg (Smt) V. Director National Heart Institute, VI(2004) CPJ 40(SC) stressed the burden of hospital and the doctor concerned.
In Babu Rao Vithal Lohakpure and others Vs. Sunithi Devi Singaria Hospital and Medical Research Centre and opposite parties 11(2008) CPJ 31 (NC) held : “In a medical negligence case the doctor and the concerned hospital have a responsibility to correctly explain their conduct and their records should prove that there was no negligence on their part”.
There is no iota of doubt that the hospital in this case is equally responsible. In Spring Meadows Hospital Vs. Harjot Ahluwalia, reported in 1998 CTJ (SC) (CP) the Hon’ble S.C. held that, the hospitals can in no way disdown their responsibility for any mishap due to the fault or negligence of their doctors.
Taking the case in its entirety we have no hesitation to find that there is negligence on the part of 1st and 2nd opposite party in the treatment of the child patient Master, Nikhil Vinod.
PW2 in cross examination deposed that Ext.A10 is the proceedings of the Medical Board with respect to the complainants. Assessment was done with residual deformity and assessed 27% deformity. Ext.A9 discharge summary of Kasthurba Hospital, Manipal goes to show the course of treatment in the hospital as follows :
Emergency fasciotomy and debridement was done on 08.06.2004 thereafter child was taken up for debridement twice. Then daily saline wash and sofratulle dressing from the ward was done. Split skin grafting was done on 18.06.04 under GA graft was taken from left thigh. Patient was initially put on Inj. Magramycin which was changed to Inj.Magnex.
Treatment : 4 years old Nikhil who sustained fracture of both bone left forearm on May 31st was brought here with features suggestive of compartment syndrome. Emergency fasciotomy and debridement was done on 08.06.04 Daily dressing were done with sofratelle and once the tissue bed was looking healthy and granulating split skin grafting was done. Post operative period was uneventful. Wound inspection was done on 8th post operative day graft appears to have taken up well.
The facts and circumstances of the case clearly reveals that the patient child was greatly suffered with pain and sufferings. The mental agony of the family members are also a considerable aspect. The disability occurred would remain life long. The actual loss suffered by parents and patient cannot be measured in terms of money. A life long disability is a life long agony which very difficult to compensate with money. Taking into consideration the entirety of facts and circumstances we are of opinion that opposite parties are liable to pay ` 2 lakhs together with a sum of ` 1500 as cost of this proceedings. Thus issues 1 to 3 are answered in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing 1st and 2nd opposite party to pay an amount of ` 2,00,000 (Rupees Two Lakhs only) together with a sum of ` 1500 (Rupees One thousand five hundred only) as cost of these proceedings within 30 days, failing which complainant is entitled for 12% interest from the date of order till realization. Complainant is also at liberty to execute the order after 30 days as per the provisions of Consumer Protection Act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the Complainant
A1. Copy of lawyer notice dated 30.07.04.
A2. Postal receipt dated 30.07.04.
A3 series. Acknowledgement cards.
A4 series. Prescription.
A5. Letter.
A6 series. Bills (41 in number)
A7 series. Impatient bills (2 in number).
A8 series. Photos and receipts.
A9. Discharge summary
A10. Medical Certificate dated 06.05.09.
Exhibits for the opposite party
B1. Case sheet (contains 9 sheets).
Witness examined for the complainant
PW1. Chithralekha V.K.
PW2. V. Sunil
PW3. Complainant
Witness examined for opposite party
DW1. M.P. Dhanapalan
/forwarded by order/
SENIOR SUPERINTENDENT
