IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 27th Day of February 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri.Stanly Harold, B.A.LLB, Member
CC.34/2015
Baiju : Complainant
S/o Late Vava Kannu Rauther
Melathil Puthen Veedu
Payyacode
Oyoor-691510
[By Adv.G.Prasanth]
V/s
- Managing Director : Opposite parties
Azeezia Medical College
Meeyannur P.O
Kollam-691537.
[By Adv.Y.Abdul Azeez]
- Dr.Vinod M.S
Orthopaedic Surgeon
Azeezia Medical College
Meeyannur P.O
Kollam-691537.
[By Adv.A.Sudheer Bose]
- Dr.Sundara Raj
Head of the Department
Orthopaedic Department
Azeezia Medical College
Kollam.
[By Adv.Abhijett Lessli]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant is a lawyer by profession practicing before the District court Centre Kollam and Kottarakkara. The 1st opposite party is the Managing Director of Azeezia Medical College, Meyannur. The 2nd opposite party is an Orthopedic Surgeon working at the 1st opposite party hospital and 3rd opposite party is the Head of the Orthopaedic Department of the above said Medical College. On 18.02.2014 at about 5.00 PM the complainant met with a road accident while he was riding his motor cycle. Immediately after the incident he was taken to the 1st opposite party hospital for traumatic treatment and was examined by the 2nd opposite party as OP No.H-21083. The said doctor conducted medical check-up and suggested to take an X-ray of the knee of the complainant. Accordingly he has taken X-ray and after perusing Ext.X2 X-ray the 2nd opposite party gave medical opinion that there is no bone as well as internal injury and hence complainant has go home and also advised that there is no need for review check up and as there was no relief of pain and swelling on the affected area. The complainant again visited on the same hospital on 28.02.14 and consulted the 2nd opposite party and explained the suffering which he undergone during that period. On the same day the 2nd opposite party referred the complainant to the 3rd opposite party who after examining the complainant and informed that there is a minor sprain and it will be cured with some tablets and also prescribed some tablets. Thereafter he sucked out some Sino vial fluid from the complainant’s right knee. He was also directed to use crepe bandage for covering the said sprain area and also informed that the swelling on the knee will be over within 2 days and there is no need of review check-up. In the wound certificate the investigation result is mentioned as “no bone injury”. The pain and swelling of the knee was not subside during the period, and the complainant could not even stand and walk. The complainant lost hope on the opposite parties and he came to know that the instructions/medical opinion and treatment given to the complainant by the 2nd and 3rd opposite parties were not proper and the conduct of the opposite parties fell below that of the standard of a reasonably competent practitioner in their filed. Thereafter the complainant was taken to Vijaya Hospital, Kottarakkara and had a consultation with Dr.Ramakrishnan and the said doctor informed the complainant on a casual chek up that the complainant’s case is of a suspicious fracture of lateral tibial condyle and features of antirior cruciate ligament injury to his right knee. The said doctor suggested an MRI Scan for confirming the same. Complainant took MRI scan which reveals that Moderate knee joint effusion, Communited displaced fracture of lateral tibial condyle and inter condylar region(Tibial Spine) involving tibial attachment of anterior cruciate ligament, Altered signal intensity areas in both femoral and tibial condoyle and inter condoyles region S/o. bone contusions/marrow oedema. After a detailed check up the complainant was put on plaster cast immobilization for one month by Dr.Ramakrishnanan. The complainant still suffering from those injury which aggravated by the treatment of opposite parties. Recently complainant consulted a doctor and he suggested that it would be better to undergone a surgery on the affected area, for which the doctor required the treatment certificate and other records from the hospitals which the complainant consulted earlier. To get those certificates the complainant approached the 1st opposite party’s hospital on 19.07.2014 and 1st opposite party’s hospital asked to remit a fee of Rs.500/- for getting the treatment certificate and informed the complainant to come and collect the records on 21.07.2014. On 21.07.2014 the complainant went to the hospital to collect the records. The hospital informed the complainant that only accident cum wound certificate is available and they handed over the same to the complainant. For a one page certificate, the 1st opposite party’s hospital charged Rs.500/- from the complainant. The complainant had suffered pain and mental agony due to the negligent act committed by the opposite parties are again tried to financially exploit the complainant by way of collecting an amount of Rs.500/- for getting one page medical record of his treatment. The 1st, 2nd and 3rd opposite parties are the management and officers of a medical college and when a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted a patient owes him certain duties viz, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment is to be give, or a duty of care in the administration of the treatment. A breach of any of those duties gives a right of action for negligence to the patient. Moreover the hospital titled as medical college are institutions, people expect better and efficient service. If the hospital fails to discharge their duties through their doctors, being employed on job basis it is the hospital which has to justify and not impleading a particular doctor well not absolve the hospital of its responsibilities hence the hospital is fairly, squarely and severally responsible for all what happens inside the hospital including act omission and commission of its employees. If the complainant received proper consultation at the initial stage of his treatment, there is no need of further treatment and sufferings which he is facing now. The conduct of the 2nd and 3rd opposite parties are far below that of the standards of a reasonable competent practitioners in their field. The complainant has not recovered from the injury and the complainant is partially disabled for walking and do other activities and is continuing various treatment because of negligent act committed by opposite parties. It could be said that it was not a personal injury only to the complainant. There is a fiduciary relationship also ie, a relationship of mutual trust between the parties and the doctor and public confidence and faith about the discharge of duties by the doctors sincerely and devotedly towards the patient/ public and more so because the opposite parties are managing director and doctors of a medical college.
The complainant sent a registered Legal notice on 19.08.14 to the opposite parties. Accordingly the 3rd opposite party sent his reply that opposite party had not committed any negligent act during the time of treatment of the complainant and denied all the allegations. Since there is no reply from 1st and 2nd opposite parties for the notice and the reply of 3rd opposite party is not satisfactory the complainant is constrained to file this complaint. This is a clear case of negligence and deficiency in service as defined in the Consumer Protection Act and the complainant is a consumer as well hence the opposite parties are liable to compensate for the pain, mental agony, cheating and sufferings caused to the complainant.
Opposite party 1 to 3 filed separate versions by admitting certain aspects and disputing the main allegations of deficiency in service or unfair trade practice on their part. Opposite party 1 to 3 uniformly admits the following facts. On 18.02.14 the complainant was brought to the causality for the 1st opposite party hospital with a history of causing injuries on a road traffic accident. The 2nd opposite party attended the complainant and on examination the complainant was noted to have sustained abrasion over front right knee abrasions right forearm and tenderness right thigh. The 2nd opposite party had suggested X-ray examination of right knee with thigh and X-ray did not reveal any bone injury. Hence the complainant was advised medicines and also advised review. On 28.02.2014 the complainant voluntarily consulted the 3rd opposite party who also verified the X-ray image and found no oblivious fracture as per X-ray image. However the 3rd opposite party done knee aspiration. But did not show blood trace in the joint. When the complainant approach the 2nd opposite party on 20th for review there was no acute pain or un easiness and swelling subsided. Hence on clinical examination there was no indication to advise further sophisticated advance method of examination like MRI scan etc.
It s further contended that the 2nd and 3rd opposite party had examined reasonable degree of skill and care in the diagnosis of treatment and based on clinical and radiological findings the X-rays were handed over to the patient after examination and the same was re-examined by the 3rd opposite party and confirmed diagnosis and the line of treatment advised by the 2nd opposite party. It is further contended that the 2nd and 3rd opposite party had treated the patient at the 1st opposite party hospital and there was no negligence or deficiency in service on the part of any of the opposite parties. Hence the complainant is not entitled to get any compensation.
The 1st opposite party would further contented that the complainant came to the 1st opposite party hospital with injury sustained on him due to motor accident. The injury found on his body were noted by the doctor concerned. However the complainant was not willing for ortho consultation and hence he was discharged on request. At the time of examination he was no having any grave injuries. He was having only tenderness along the right mid thigh. There is swelling of knee and there was no having any distal neuro vascular defect. X-ray examination was conducted and medicines were suggested. The consultation was done by Dr.Vinod on 28.02.2014. The doctors exercised reasonable skill and care and there is absolutely no negligence or deficiency in service on the part of the 1st opposite party. charging a fee of Rs.500/- for getting copy of the Accident Register Cum Wound certificate is only a usual practice and there is no financial exploitation on the side of the 1st opposite party.
The 3rd opposite party would further contend that the complaint against the 3rd opposite party is vexatious. The complainant has no cause of action against the 3rd opposite party. The standard norms followed by doctors who issued Annexure A6 Medical Certificate. The 3rd opposite party feel that the doctor who issued the certificate has taken clinical examination stand towards the 3rd opposite party. The 3rd opposite party has observed reasonable caution, care and skill in treating the complainant. The is no cause of action against the 3rd opposite party. Treating a patient does not make a cause of action to sue. The complainant is not entitled to get any relief from the 3rd opposite party.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party No.1 to 3 in treating the patient?
- Whether the complainant is entitled to get compensation from opposite party No.1 to3 as claimed.
- Relief and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.P1 to P15 documents. Evidence on the side of the opposite party consists of oral evidence of DW1 to 3, Ext.D1 series and D1 series (a).
Though the case was specifically posted for filing argument note and hearing, the counsel appearing for the complainant has not filed any notes of argument. Opposite party No.1 to 3 filed notes of argument. On 30.12.2020 the complainant himself was present and submitted that there is no oral argument and the matter is to be considered as heard. Advocates appearing for the opposite party No.1 to 3 have also not raised any oral argument. They also submitted that they have filed notes of argument and are having no oral argument. Hence the case is taken up for order.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. The following are the admitted facts in this case. On 18.02.2014 the complainant met with an accident while riding his motor cycle and sustained injury and he was taken to the 1st opposite party Azeezia Medical College Hospital, Kollam. The 2nd opposite party subjected the complainant to a medical check up and suggested to take an X-ray of the knee. Accordingly X-ray was taken. After perusing the X-ray the 2nd opposite party found that there was no bone as well as internal injury. Hence the complainant was directed to go home and also advised that no review check up is necessary. According to PW1 if he received proper consultation at the initial stage of treatment there was no need for further treatment and suffering which he has been now facing. In short the specific allegation of the complainant is that there was no proper diagnosis and treatment by the opposite parties. As per P5 X-ray right (R) knee no bone injury. It is further stated as item No.16 in P5, against the column date of discharge, not willing for admission. Above entries in P5 wound certificate shows that proper investigation was done, X-ray of the right knee was taken which reveals no bone injury. Even that the treated doctor has advised the patient for admission. But he was not willing for the same. In the light of the entries in Ext.P5 wound certificate it is clear that the complainant has nourishing a wrong impression that there was fracture on his right knee and the doctor had not given proper treatment. But Ext.P5 wound certificate which has been produced and got marked by the complainant would rule out the above possibility.
It is brought out in evidence that 2nd opposite party Dr.Vinod has directed to take X-ray and after verifying X-ray film it was stated in P13 document that there was no bone injury and thereafter X-ray film was given to him. But subsequently he would state that X-ray film was not given to him. The complainant would admit that in Ext.P13 document it is stated that no willing for admission. But according to him it was subsequently inserted by the doctor. But he has no such case in the complaint or in the proof affidavit. According to the opposite parties the complainant was not ready to undergo treatment by getting admission. They have sent with a direction to consume medicine for 10 days and thereafter appear for review. However after 10 days he went to the hospital and seen the doctor. According to him he was taking bed rest on those 10 days. But he has not stated that fact in the chief affidavit. According to PW1 himself and mother alone was in the residence and hence nobody was available to take him to the hospital and hence he has not gone to the hospital. However after 10 days when visited the 3rd opposite party at the 1st opposite party hospital and availed treatment. The 3rd opposite party has taken fluid from his knee. He also verified the X-ray film and stated that there was no bone fracture. He was given medicine for 5 days for curing swelling. Even then the disease was not cured. Therefore he has not gone to the hospital for treatment. However on 04.03.2014 he visited Dr.Ramakrishnan of Vijaya Hospital. According to the opposite parties though 2nd opposite party advised the complainant to take rest he has not taken any rest and gone for practice at the courts and there by pain and swelling has been developed. However when he met Dr.Ramakrishnan he verified the X-ray and suspected bone injury and also advised him to take MRI scan. Accordingly he has taken Ext.P6 MRI scan on 16.03.14 and found that mildly displaced fracture(hair lying fracture). There after the said Dr.Ramakrishnan has applied plaster on his right knee.
Though PW1 would claim that he is having some disability. Theer is nothing on record to prove the disability. No medical certificate or disability certificate issued by a competent medical board has been produced to indicate that the complainant has sustained any disability. Even if any disability has been sustained it was sustained due to the motor accident. There is absolutely nothing on record not even a whisper in Ext.P11 lawyer notice to the effect that as a result of the treatment made by the 2nd and 3rd opposite party at the 1st opposite party hospital the complainant has sustained any disability.
In view of the evidence available on record it is clear that the 1st visit of the complainant at the 1st opposite party hospital after the accident is on 18.02.2014. On that day he was attended by the 2nd opposite party. The complainant made a 2nd visit on 22.02.2014. On that day also he was examined and found nothing abnormal. On the next visit ie 28.02.2014 he was consulted by 3rd opposite party who also did not find any fracture. Subsequently after about 14 days the complainant went to Dr.Ramakrishnan at Vijaya Hospital and taken MRI of right knee. Even as per the MRI investigation there is only mildly displaced fracture of lateral tibial condoyle. In Ext.P8 medical certificate issued by the said Dr.Ramakrishnan it is opined that he had an associated tibial spine fracture. In view of the facts and circumstances of the case the chance of sustaining the said fracture occurring after the visit of the 1st opposite party hospital cannot be ruled out as the complainant has not taken proper rest and care as advised by PW2&3 which is evident from the admission of PW1 that he is an advocate having active practice at Kottarakara bar and used to attend the court. It is also brought out in evidence that though X-ray was given to the complainant but he denied having received the very same X-ray. He has also not produced X-ray given to him to convince the Commission that yet another X-ray was given to the complainant by 2nd opposite party. It is also brought out in evidence that the complainant was not even willing for admission and he has resumed his duty as an advocate before taking rest and before subsiding pain and swelling. Even as per Ext.P6 MRI scan he had only a hairline fracture. The said MRI was taken about 1 month after the accident. In the circumstances there is nothing on record to indicate that the said fracture occurred from the accident itself. The chance of sustaining such hairline fracture due to the subsequent activities of the complainant who continued his profession as a lawyer without taking bed rest as advised by 2nd opposite party cannot be ruled out at all. It is further to be pointed out that the presence of hairline fracture first noted by Dr.Ramakrishnan attached to Vijaya hospital on the basis of MRI scan advised by him. But the doctor was not examined by the complainant to prove the presence of above fracture and its age. There is absolutely no reliable medical evidence except the interested testimony of PW1 to prove that there is deficiency in service on the part of the opposite parties. Admittedly the complainant sustained injury from a fall from bike. Complainant has no case that he was not treated by any doctor or he was not consulted by any doctor. All the time he was properly attended by 2nd opposite party followed by 3rd opposite party. Thereafter the patient did not turn up to the 1st opposite party hospital. Hence it cannot be said that the opposite parties have not given the service of the hospital and doctor. At the most it is a case of mistaken diagnosis or absence of diagnosis, both are not culpable negligence. Since the 2nd and 3rd opposite party exercised reasonable skill and care in the treatment of the patient, there is nothing to blame the doctor for the outcome of the treatment. The outcome of treatment would greatly depend on a variety of facts such as the severity of the condition treated, co-existence of other disease, immunological status of the individual, limitation of the treatment involved, sensitivity of the individual to the drugs, resistance of the organism to the drugs, patient’s compliance etc., many of which are not under the control of the treating doctors or the hospital. Hence merely because a patient is not relieved from pain or has not received the relief, one cannot say that no proper treatment was given. When the doctor exercised reasonable standard of care and caution in handling a case and acted in accordance with the accepted medical practice and ethics, there is no negligence on the part of the treating doctor. The 2nd opposite party is a qualified Orthopaedic surgeon having 31 years of unblemished professional experience to his credit. After retiring from Health Service under the Kerala Government in the year 2010, opposite party is working as consultant orthopaedic surgeon in the 1st opposite party hospital. Simply because something went wrong or some misfortune has occurred, it cannot be said that the treatment given was negligently or the doctor was negligent. Similarly if there is no cure or success out of the treatment, that doesn’t mean there is some negligence on the part of the treating doctor as held by Hon’ble National Commission in the decision of Dr.M.Kochar Vs.Ispita seal and another(2018(1)CPR 507-NC).
Admittedly the complainant is still a practicing lawyer. No disability certificate or any documentary evidence is produced to prove that he sustained any permanent damage or disability due to the wrong treatment meted out by the opposite parties. Not even subsequently treated doctor is examined on the side of the complainant to prove any medical negligence or deficiency in service. There is only vague allegation in the complaint about the alleged disability of the complainant. In Ext.P11 notice sent on behalf of the complainant shows allegation of pain and sufferings only. There is no whisper about the disability, if any caused to the complainant. It goes without saying that complainant is still a practicing lawyer without any difficulties or sufferings.
On evaluating the entire materials available on record we hold that the complainant has failed to prove deficiency in service or any unfair trade practice on the part of the opposite parties No.1 to 3 in treating the complainant and therefore he is not entitled to get any compensation from the opposite parties as claimed in the complaint. The point answered accordingly.
Point No.3
In the result complaint stands dismissed. Parties are directed to suffer their respective costs.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 27th day of February 2021.
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Baiju.V
Documents marked for the complainant
Ext.P1 : Op Registration card
Ext.P2 : Bill dated 18.02.2014
Ext.P3&P4 : Pharmacy cash bill(2 Nos)
Ext.P5 : Bill dated 28.02.2014
Ext.P6 : Copy of MRI report
Ext.P7 : X-ray
Ext.P8 : Treatment certificate dated 10.12.2014
Ext.P9 : Bill dated 19.07.2014
Ext.P10 : Advertisement
Ext.P11 : Legal notice
Ext.P12 : Registered with acknowledgement due
Ext.P13 : Accident Register cum wound certificate
Witnesses Examined for the opposite party:-
DW1 : Dr.Vinod .V.S
DW2 : Dr.Sundararaj.P.k
DW3 : Dr.Sajid Hussain
Documents marked for opposite party:-
Ext.D1 Series&D1(a) : Op Record
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
