KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM
COMMON ORDER IN APPEAL NOS.A.193/08 AND 194/08
JUDGMENT DATED: 28..01..2011
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
APPEAL. 193/2008
Lisamma Mathew, W/o Mathew.T.M., : APPELLANT
Thayyil House, Prathibha Cottage,
Kottacherry, Kanhangad-671315,
Presently residing at Thayil House,
No.47/XVI, Opposite Bhajan Mutt,
Krishna Pilla Nagar, Padnekad,
Kasargod – 671328.
(By Adv.Vinay Menon)
Vs.
1. Sri.Jose C.G., S/o Francis, : RESPONDENTS
Agriculturist,
Chakkuliyil House,
Vayathur Amsom Desom,
Ulickal.P.O.,
Kannur district.
(By Adv.C.S.Rajmohan)
2. The President,
P.T.Chacko Memorial
Co-operative Hospital, Iritty.
3. The Secretary, P.T.Chacko Memorial
Co-operative Hospital, Iritty.
4. Dr. Prasad Rao, Medical Officer,
P.T.Chacko Memorial
Co-operative Hospital, Iritty.
APPEAL. 194/2008
1. The President, P.T.Chacko Memorial : APPELLANTS
Co-operative Hospital, Iritty.
2. The Secretary, P.T.Chacko Memorial
Co-operative Hospital, Iritty.
(By Adv.Roy Varghese)
Vs.
1. Sri.Jose C.G., S/o Francis, : RESPONDENTS
Agriculturist,
Chakkuliyil House,
Vayathur Amsom Desom,
Ulickal.P.O., Kannur district.
(By Adv.C.S.Rajmohan)
2. Dr. Prasad Rao,
Medical Officer,
P.T.Chacko Memorial
Co-operative Hospital, Iritty.
3. Lisamma Mathew, W/o Mathew.T.M.,
Thayyil House,
Prathibha Cottage,
Kottacherry,
Kanhangad-671315.
(By Adv.Vinay Menon)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
The appellant in A.193/08 is the 3rd opposite party/Nurse and the appellants in A.194/08 are the opposite parties /authorities of opposite party hospital in OP.544/91 in the file of CDRF, Kannur. The appellants are under orders to pay a sum of Rs.95000/- as compensation and cost of Rs.2500/-
2. The complainant is an agriculturist aged 27 years. It is his case that on 6.6.91 he consulted the 2nd opposite party, doctor of the opposite party hospital and on the instruction of the doctor the 3rd opposite party nurse administered an intramuscular injection on his left shoulder. According to him after the injection the petitioner’s left shoulder could not be moved and had severe pain and swelling. These symptoms developed day by day after the injection and on 18..6..91 he was admitted as inpatient in the opposite party hospital for treatment to his left shoulder. The severe pain on the left shoulder was not cured during the treatment upto 21.6.91. He was referred to the orthopedic unit of AKG Memorial hospital wherein he was an inpatient from 21.6.91 to 26.6.91. And thereafter he was referred to Koily Hospital, Kannur and was an inpatient therein from 26.6.91 to 2.7.91. The condition of the complainant got worsened and he was admitted at Kasturba Medical College Hospital, Manipal from 11.7.91 to 10.8.91 . Even now the petitioner is undergoing treatment at the Kasturba hospital. The petitioner cannot lift his left hand properly and still there is pain and he is unable to do any physical work. It is alleged that the injection at the opposite party hospital was administered in a rash and negligent manner and without disclosing the identity of the injected medicine. It is alleged that 3rd opposite party/nurse is an unqualified person and when injecting the needle had pierced into the bone. In the reply notice sent jointly by R1 to R3 the administration of injection is admitted but in the separate reply sent by 3rd opposite party she has denied that it was she who administered the injection. It is stated that petitioner has spent nearly Rs.35000/- for treatment to his shoulder. The complainant has sought for Rs.95000/- as compensation.
3. The opposite parties 1 and 4, the hospital authorities in the version filed has admitted that the complainant was treated at the above hospital for fever and body pain by the 2nd opposite party doctor. Paracetamol injection was administered to the complainant by 3rd opposite party a qualified staff nurse. It is denied that the shoulder pain is due to the injection administered. It is pointed out that the petitioner would not have waited for 12 days to come to the hospital if he had pain and swelling after the administration of the injection. It is denied that the needle pierced the bone. It is contended that Osteomyeletis will not cause due to the administration of injection on the shoulder. It is stated that the petitioner was aged 25 years and was susceptible to Osteomyeletis . It is evident that there was some infection spot or infection in the body of the petitioner during the period as there was fever and severe body pain on 6.6.91 the date on which he came to the hospital.
4. In the version filed by the 2nd opposite party doctor it is mentioned that he had examined the complainant and had given the prescription and the 3rd opposite party nurse administered the injection. A week after taking the injection complainant came to the hospital with the complaint of pain in the shoulder. He could not diagnose the reason for the shoulder pain. He referred the complainant for expert treatment at AKG Memorial Hospital, Kannur. He has sought to be exonerated.
5. The 3rd opposite party/nurse has pleaded total ignorance of the incident. According to her it was not she who administered the injection. She has stated that she was the only qualified nurse in the hospital. It is also mentioned she has not instructed Advocate K.A.Philip to sent a reply notice and that she has sent a reply through the lawyer Mr.Arun Peter on 23.9.91. It is specifically mentioned in the reply notice that she has not administered the injection and that she is an unnecessary party. It is alleged that the complainant and 1st opposite party has colluded in order to escape from liability in employing unqualified persons to treat the patients. It is alleged that the 1st opposite party hospital has employed many unqualified girls under the name and style of nursing assistants’ and they used to give injections and give medicines to the patients at the instructions of the doctor. The 3rd opposite party used to object to this. According to her the injection might have been administered by one of the unqualified girls and it is in order to escape from the liability it is stated that the injection was given by the 3rd opposite party and to show that it is administered by a qualified staff nurse.
6. The evidence adduced consisted of the trestimony of PW1; Exts.A1 to A74, OPWs 1 and 2.
7. It is seen that the matter was twice remanded; once for filing version by opposite parties 1 and 2 and to recall PW1and the second time again with direction to recall PW1 as PW1 was not available after the 1st remand. Thereafter the complainant was cross examined and the matter disposed of, which order is challenged herein.
8. The complainant has testified in proof of the averments in the complaint. He has also produced the treatment records, the bills of purchase of medicines and hospitalization charges of the hospitals wherein he underwent treatment including that of the 1st opposite party hospital. He underwent treatment at AKG Memoraial Hospital, Kannur, Koily Hospital Kannur and thereafter at Kasturba Hospital, Manipal. The complaint was filed on 19.12.91. The documents produced would show that after filing of the complaint also he was treated as inpatient at Kasturba Hospital, Manipal and underwent another surgery under general anesthesia. It is mentioned in Ext.A75 the copy of the treatment record at Kasturba Hospital that adhesions were cleared under general anesthesia with respect to the osteomyeletis at greater tuberosity (L) humerus In Ext.A75 certificate from Kasturba Hospital dated 30.11.95 it is mentioned that curettage was done in 1991 and release of soft tissue adhesions in 1993. It is further mentioned therein that at present there is no signs of osteomyeletis. It is also mentioned that at present he has pain in the left shoulder radiating to the whole upper limb. On 27.5.93 it is mentioned as the date of admission, 2.6.93 as date of operation, 8.6.93 as the date of discharge at the second instance. In the treatment records shortening of the left upper limb is also mentioned and decompression of abscess done on 2.7.91 is mentioned in the outpatient record dated 24.10.92. On 12th September, 1991, 27th February 1992 and 9th April 92, 27th April 92 also he has attended Kasturba Hospital, Manipal. The discharge summary ie, Ext.A41 the certificate of the Professor and Head of the Orthopaedic Unit of Kasturab Hospital dated 17.8.91 mentions that when he was admitted on 4.7.91 he had complained of pain in the left shoulder and inability to lift the shoulder since 4 weeks. It is also mentioned that the symptoms allegedly started after an intramuscular injection. He has mild wasting of the left deltoid, supra spinatus and infra spinatus muscles There was tenderness over anterior joint line of the shoulder. Abduction of the shoulder was extremely painful. X-ray of the shoulder revealed periosteal reaction near the greater tuberosity. His haemogram revealed a raised ESR level. Although put on antibiotics and pain relieving physiotheraphy as his symptoms did not subside X-ray were repeated and the same revealed a break in the cortex of the upper humerus near the greater tuberosity. His shoulder was operated upon. Pus was obtained from the lesion near greater tuberosity. A biopsy from the lesion revealed osteomyeletis.
9. As evident from Ext.A41 there was periosteal reaction near the greater tuberosity and there was break in the cortex of the upper humerus near the greater tuberosity. Pus was removed from the lesion near greater tuberosity. The above support the case set up by the complainant that it was in consequence of the injection administered that the complainant started the pain and swelling. The case of the complainant is that it was intramuscular injection given at the left shoulder that resulted in the above complications. It is the case of the complainant that periosteal the outer layer of the bone pierced by the injection needle that resulted in the infection. The counsel for the complainant/respondent has produced literature downloaded from the net to contend that a recent surgery or injection around a bone can also expose the bone to bacteria and lead to osteomyeletis. The contention of the opposite parties/appellants/hospital authorities that osteomyeletis will never result from the administration of the injection stands not supported by any expert evidence or literature. The literature produced by the appellant itself mentions that the infection spreads to the bone after several days or weeks. (Osteomyeletis, bone joint infections; Merck Manual Home Edition downloaded). It is the contention of the appellants that the complainant was already having the infection and that fever he was having was the symptom of the same and for which he availed outpatient treatment from the opposite parties hospital on 6.9.91. The contention is that the infection was a hematogenous one resulting from bacteremia; but the fact that the patient developed pain in the left shoulder and swelling soon after the administration of the injection supports that it was a exogenous one. Pain and local tenderness are the common symptoms.
10. The authorities also indicate that hematogenous osteomyeletis cases are mainly in the childhood. Osteomyeletis can be chronic and end up even in amputation. Nowhere in the treatment records it is mentioned that the source of infection was hematogenous bacteremia or fungal spores already existing. Osteomyeletis may result from an infection in an adjacent soft tissue and it spreads to the bone after several days or weeks.
11. PW1 the complainant was examined twice. When he was examined on 20.4.94 he had asserted that it was the 3rd opposite party who administered the injection. The doctor issued him a slip and the same was shown to the nurse. Subsequently after injection pain developed and he was admitted at the 1st opposite party hospital and it was at the time that he enquired as to the name of the nurse. PW1 was examined subsequently on 10.6.08 and cross examined by opposite parties 1 and 4. He has reiterated the case that he contacted the illness after the administration of the injection. It is suggested in the cross examination that it was paracetamol injection that was administered. At the 1st opposite party hospital, AKG Memorial hospital, Kannur, Koily hospital, Kannur the illness was not diagnosed and it was at Kasturba Hospital, Manipal that the problem was diagnosed as Osteomyeletis. He has stated that the doctor at Kasturba Hospital told him that it was on account of the injection needle touching the bone that has resulted in infection of the layer over the bone. He has stated that during a certain period subsequently he was employed in Dubai.
12. OPW1 the 3rd opposite party has stated that the card issued by the doctor will be returned after administering the injection(PW1 has stated that the slip given by the doctor and he handed over it to the nurse and that was not returned). OPW1 has denied that she had instructed Advocate Philip to sent reply notice on her behalf she has left the hospital in 1992. OPW2 the Orthopaedic Surgeon attached to the 1st opposite party hospital has joined at the hospital only in 1996 which is much subsequent to the date of the incident. He has only testified as to treatment administered to the complainant at the 1st opposite party, hospital based on the treatment records. He has explained as to what is meant by functional overlay diagnosed at AKG hospital, Kannur vide Ext.A3 discharge summary. The word meant as a condition which affects the function of particular limb. He has stated that if needle of a syringe pierced the periosteal the person will feel intense pain. Periosteal is a sensitive part in the bone just like the skin. He has stated in the cross examination by the counsel for the complainant that if at the time of injection the unsterilised needle enters the periosteum it may cause infection and such infection can develop into osteomyeletis. He has further stated in the reexamination that injury of the bone need not in all cases necessary for the cause of osteomyeletis. We find that the evidence of OPW2 is not helpful to support the case of the opposite parties. As noted above at the AKG Hospital the source to pain to the shoulder was not diagnosed as Osteomyeletis. It is diagnosed as shoulder girdle syndrome. It is at Kasturba Medical College Hospital that it was diagnosed as osteomyeletis and the history noted as alleged to be subsequent to intramascular injection. Although no expert evidence as such has been adduced to support the case of the complainant we find that the literature produced would indicate that consequent on an injection osteomyeletis can develop in case to entry of bacteria into bone and surrounding soft tissue. Traumatic or surgical inoculation of bacteria into bone and surrounding soft tissue subsequently results in exogenous osteomyeletis (Robert . B.Duthie and George Bentley, Mercer’s Orthopaedic Surgery page 561 9th edition). We find that in the cross examination of PW1 by the counsel for the hospital authorities or by the counsel for the 3rd opposite party nothing has been suggested or brought out to the effect that the complainant contacted the illness after any other incident. In the circumstances we find that the finding of the Forum that the complainant developed pain at the shoulder and thereafter Osteomyeletis consequent to the administration of the injection at the opposite party hospital is not to be interfered with. The same is confirmed.
13. As to the contention of the 3rd opposite party nurse that it was not she who administered injection is disputed by the complainant as well as by her employers ie, hospital. Further in the reply notice sent by on behalf of all the opposite parties the administration of injection by the 3rd opposite party admitted although the 3rd opposite party has denied that she instructed the particular counsel to sent the reply notice. She has sent another reply notice through another counsel but no steps were taken to examine the counsel who sent the notice on her behalf and also without her instruction. Further as pointed out by the counsel for the appellants it is quite unlikely that the complainant would have pointed out at the 3rd opposite party as the person. There is no suggestion that he nursed any grudge against the 3rd opposite party. The allegation of the third opposite party that the particular hospital employed a number of unqualified nurses and that she was the only qualified nurse is a disturbing fact as to the state of affairs of the 1st opposite party hospital. The case of 3rd opposite party that it was not she who administered the injection appears not true in the circumstances. We find that the finding of the Forum that it was 3rd opposite party nurse who administered the injection also do not call for interference.
14. The Forum has allowed Rs.95000/- as compensation to be paid jointly and severally by all the opposite parties except the 2nd opposite party doctor. The Forum has noted that the complainant had to pursue litigation for more than 16 years. We find that the delay was also on account of the fact that the complainant was not available when the matter was remanded as he was employed abroad. There is systemic delay as well. The order of the Forum is dated 21.7.08. The complaint was filed on 1.12.91. Of course Rs.95000/- awarded takes care of the interest portion as well. In the circumstances we find that it would be reasonable to award Rs.65000/- as compensation inclusive of interest up to the date of order of the Forum ie.21.7.08. The complainant will be entitled for interest at 6% per annum on the above amount from 21.7.08. The complainant would also be entitled for cost of Rs.2500/- as ordered by the Forum. The amounts are to be paid within three months from the date of this order failing which the complainant will be entitled for interest at 12% per annum from 28.1.2011 the date of this order.
Office will forward the LCR alongwith the copy of this order to the Forum urgently.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
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