Kerala

Malappuram

CC/164/2018

ABDUL RAZAK - Complainant(s)

Versus

MANAGING PARTNER/CHAIRMAN - Opp.Party(s)

26 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL
MALAPPURAM
 
Complaint Case No. CC/164/2018
( Date of Filing : 04 Jun 2018 )
 
1. ABDUL RAZAK
S/O MOOSAKUTTY M K MACHINGAL HOUSE PANAMBRA THENHIPALAM POST TIRURANGADI TALUK 673636
...........Complainant(s)
Versus
1. MANAGING PARTNER/CHAIRMAN
DR HYDER RELIEF HOSPITAL AND TRAUMA CENTRE BYPASS ROAD KONDOTTY 673638
2. DR SAIBIN AHAMMED SAHEER
RELIEF HOSPITAL AND TRAUMA CENTRE BYPASS ROAD KONDOTTY 673638
MALAPPURAM
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. MOHANDASAN K PRESIDENT
 
PRESENT:
 
Dated : 26 Jun 2023
Final Order / Judgement

By Sri. MOHANDASAN.K, PRESIDENT

 

The complaint in short is as follows: -

1.         The complainant sustained fracture on his right little finger on 29/11/2017 after hitting his vehicle against government Transport Vehicle.  Complainant was taken by local people to opposite party hospital and first opposite party verified and forwarded to orthopedic surgeon, the second opposite party. The complainant was aware of this sort of injuries and who is in charge of a school for disabled and therefore suggested to implant nail (steel foreign body) for his little finger because change in shape of the finger would be noticed upfront.  On and after verification of the X-ray by second opposite party, he was reluctant for application of nail implantation and refused the request of complainant.  Thus, the complainant met the first opposite party and suggested for implantation but both denied and taken decision for different treatment by way of applying plaster cast along with tying the little finger and ring finger together.  Circum to the pressure of opposite parties, complainant underwent alleged conservative mode of treatment without proper application of mind and conscious of opposite parties.  Thereby plaster cast was applied upon the litter finger after toying with ring finger. The right hand was put in plaster till the joint of the right hand.

2.         On and after the application of the plaster cast on 29/11/2017, the complainant was feeling pain over the little finger though it was under plaster cast and went to the doctor several time but he was very reluctant to even verify the finger or to consider another X ray though complainant requested and there by complainant had to return all the time without proper diagnosis. At last complainant took OP ticket and visited the doctor and on that day second opposite party got annoyed and behaved harshly and instructed not to approach him before 29/12/2017 i.e after a month application of plaster cast.  The complainant went to the hospital and repeatedly stated regarding the severe pain, discomfort, humiliation, itching, and difficulties suffered in the little finger but nothing went to deaf ears and told everything is perfect and not even an X-ray is required and was only interested in telling his experience and directed to come on 06/01/2018 to remove the plaster cast. Though the complainant went to the first opposite party, he did not care but instructed   to comply with second opposite party. 

3.         The complainant had no other option and visited second opposite party on 06/01/2018 and plaster cast was removed at the instruction of second opposite party. While plaster cast removed, it was apparent that shape of little finger was changed. But the second opposite party not at all cared.  Annoyed by the indiscipline management and improper response of second opposite party, complainant given mandate to take X-ray and at last X ray was taken and found mal-union. While the same was discussed, it was told that there was no issues but only a mental feeling of complainant and told that everything is all right  and there is no need of any further management.  Therefore, complainant went home but the pain was persisting on the little finger and movements were also restricted. 

4.         The complainant contacted and consulted another doctor Mohammed Shafi, at Chelari and on simple verification of the little finger and just hold the finger and told and identified mal-union of fractured area and on verification of X ray, it was   told that it is very difficult to make in set right the mal-union.  He suggested for re-opening procedure, bone grafting and other serious methods because of the plight occasioned due to the carelessness and deficient management of the fracture.   The complainant several times visited both opposite parties for consultation due to pain, discomfort but the opposite parties callous attitude and irresponsible tendency came to fate of mal-union of little finger.

5.         Dr. Shafi advised for physiotherapy as an experiment in order to have improvement and for which advised to meet physiotherapist and met Rohith.K. Nair consultant physiotherapist and naturopathic physician on 29/01/2018. On ascertaining the X-ray, it was told that there is hardly very rare possibility of movement of little finger. But he suggested for 21 days physiotherapy for improvement. But there was no improvement after 21 days, thereby stopped physiotherapy and went another specialty orthopedic hospital at Calicut on 30/02/2018.  On and after verification detailed inspection and investigation it is finally held and stated that in order to justify the defect at least sum of Rs.1,00,000/ and above  to be met  in addition to that  he instructed  that  the bone mal united with additional growth  should be cut and removed either by bone grafting or  by any some other methods and which would take at least  2 to 4 months. On completion of treatment and management even then they are not sure about the 100% performance of the little finger. But only assurance of 50% of the satisfaction.

6.         It   is apparent from the X-ray taken on 06/01/2018 that there was mal union of the little finger and they committed gross medical negligence by not attending and not caring facts though the complainant went for consultation many times.  Moreover, they neglected in not re-analyzing after removing the plaster cast on 06/01/2018 and X ray was taken at the compulsion of complainant and thereafter also the opposite party did not care. There is gross mistake and violation of medical ethics in addition to total deficiency of service and dereliction on duty.  On going through the X ray, it is apparent and obvious there is total deficiency in service and professional misconduct upon the opposite parties.  The application of plaster cast was without any proper care and caution and therefore mal-union was occasioned. It can be seen in X-ray that additional bone growth was seen because of improper correction done just prior to the application of plaster cast. There by additional bone growth was occasioned, which obstructed the movement of the finger.  The complainant was having almost good hand writing, which was lost due to the deformity of the finger and was caused due to the deficiency of service of opposite parties.  Complainant cannot hold or give shake hand or use the little finger in any manner and is highly painful moreover the hand writing is also lost its beauty.

7.         The complainant submitted that he suffered mental agony apart from the physical disability and is caused only due to the deficient attitude of the opposite parties.  It is obvious that if the steel nail was implanted, the corrective measures would have been avoided.  It is life time damage caused to the complainant and there is negligence upon the opposite parties coupled with deficiency of service and the compensation to be assessed cannot be computed in terms of money still the complainant pray that an amount of Rs.10,00,000/-as compensation for the deficiency of service  committed by the opposite parties.

8.         The complainant after discussions decided to approach Ganga Medical center & Hospitals private limited, Coimbatore and visited the hospital on 23/04/2018. It was told by them to the complainant the mal union was occasioned due to improper care done by the doctor and the fracture ought to have been managed by application of steel nail and the compound fracture seen in the first X-ray was not idle for conservative mode of treatment and the risk on conservative mode of treatment was risk and the mal union is quite common and therefore such treatment is not preferred for such kind of fractures. Therefore, it is apparent that the opposite parties committed gross deficiency of service from the very first moment and they did not care for more than one month though the complainant visited at least 7 times to the opposite parties.

9.         Subsequently the complainant got admitted for treatment at Ganga Medical center & Hospitals private limited, Coimbatore on 27/04/2018 and discharged after correct osteotomy of proximal phalanx of right little finger and fixation with 2 K wires on 30/04/2018 and an amount of Rs.60,435/- as hospital charges and an amount of Rs.35,000/- for other expenses including visit at Coimbatore Twice.  It is also necessary for going to Coimbatore for further management which would also cause more than 40,000/-and expected medical expenses of 15,000/- to the tune of minimum Rs.1.5 lakh.  All these additional expenses are met only because of opposite parties and still the treatment is not complete and the result is yet to be known. The complainant suffered severe pain and mental agony due to the deficient service of opposite parties and no assurance is given by Ganga Medical center & Hospitals private limited, Coimbatore.

10.       The complainant submit that he already met an amount of Rs.1,00,000/-and expected another some of Rs.50,000/-. The complainant spent Rs.28,000/- for physiotherapy, Rs.1,50,000/- for treatment at Ganga Medical center & Hospitals private limited, Coimbatore and expect other future expenses.  The complainant submit that he is entitled to get an amount of Rs.2,00,000/- on account of pain and suffering apart from aforesaid compensation of Rs.10,00,000/-. The complainant submit that the opposite party committed deficiency of service, neglected the complainant in totally, which attributed sever loss, hardship, pain, agony, deformity, and loss of proper hand writing utility and thereby the opposite parties are liable and responsible to compensate adequately and to be met by opposite parties jointly and severally.  The complainant also prays for the cost of Rs.25,000/-.

11.       On admission of the complaint notice was issued to opposite parties and on receipt of notice they entered appearance. Both the opposite parties filed version separately contending with similar facts and denying the entire averments and allegations in the complaint.  

12.       The   opposite parties submitted that the complaint is bad for misjoinder of party , arraying  doctor Hyder in representative capacity as the managing  partner / chairman of the hospital is mischievous  and  is not the person  having capacity to  represent the first  opposite party hospital .

13.       It is submitted the averment in the complaint are ill framed, ill-advised, and ill filed solely for the un due financial advantage of the complainant.   The opposite parties submitted the true facts according to them as follows. The complainant reported to the outpatient department in the relief hospital and trauma center, by pass road, Kondotty and consulted the second opposite party on 29/11/2017 with complaint of  pain  on right little finger followed by an alleged road traffic accident.   On examination there was swelling and deformity of right little finger without any wound.  There was no distal neurovascular deficit.  An X-ray was taken which showed simple fracture of proximal phalanx of right little finger.  The nature of fracture caused to the complainant as evident from X ray, finding was well explained to the complainant and as per accepted treatment protocol followed in cases of simple fracture phalanx, he was advised closed manual reduction and plaster splinting.  The pros and cons of the proposed closed reduction and fixation and risk factors like chance of infection, delayed union, mal union and non-union were also well explained to the complainant and he voluntarily agreed to undergo the procedure of closed manual reduction and splinting and consented for it.  The complainant never suggested any other alternative method of treatment rather  closed manual reduction  and immobilization  is the standard and medically  accepted treatment for the diagnosed  simple fracture of proximal phalanx nevertheless it carries a risk of mal union, delayed union or non-union etc .

14.       The opposite party submitted that under all aseptic care  and precautions  the second opposite party  conducted   closed manual reduction  and after clinically  confirming  stable and satisfactory  fracture reduction it was immobilized  with strapping of the finger  to the adjutant fourth finger.  For additional stability a below elbow plaster splint was also given.  The complainant was prescribed   analgesics and anti-inflammatory drugs for five days and advised review after five days for earlier if any complainant.   The first review of the complainant was on 06/12/2017 and on clinical examination there was no swelling or deformity and  pain was subsided and hence the complainant  was advised  to continue strapping and  slab and for review after two weeks.  The prescription dated 06/12/2017 containing the findings and advice to the complainant and which is not seen produced as per annexure in the complaint.

15.       The complainant again reported for review on 20/12/2017 and his splint was removed on that date but the strapping was continued. There was no pain or deformity and hence only calcium supplements were given to enrich bone healing and advised review on 29/12/2017 to remove strapping. The complainant came up for review on 06/01/2018 and strapping was removed on that day and X-ray was taken on that day to confirm radiological union.  The X ray shown evidence of slight mal union and it was explained to the complainant that function of fingers and hands determines further intervention for which he was advised physiotherapy to improve the post immobilization stiffness. Though the complainant was advised review for

reassessment he did not turn up and lost further follow-up.

16.       The complainant had sustained a simple fracture of proximal phalanx right little finger and there was no open wound and conservative management with closed manual reduction, buddy’s strapping and plaster splinting is the medically accepted standard and accepted   treatment procedure.  Post fracture stiffness  and mal union  are natural complications  associated with  treatment  and  every mal united fracture does not require intervention  and  post immobilization  stiffness could be managed with physiotherapy,  the second opposite party treated the complainant  with due diligence and care as per accepted medical practice  and protocol   and  mal union cannot attributed to be due  to any  negligence  or carelessness in  treatment  on the part of the   second opposite party . The second opposite party had exercised due skill expertise and care in the treatment of the complainant and there was no negligence or deficiency in service on his part at any point of time in the treatment of the complainant. Hence the second opposite party is not liable to compensate the complainant.

17.       The opposite party denied the averment that the complainant suggested to implant nail for his little finger because of change in shape of finger. But the opposite party after X-ray examination advised conservative managing as per accepted medical practice followed in the treatment of simple fracture of proximal phalanx.  Surgical fixation is indicated only case of open fracture or multiple fractures as per internationally accepted text book references as well as clinical practice.  A splint and adjacent digit strapping can also effectively maintain an existing and reasonable stable reduction.  The opposite party denied the allegation of the complainant that the complainant requested first and second opposite party for implantation but it was refused and taken decision for different treatment.  The decision for closed manual reduction with plaster splint was taken after discussion with the complainant and with his consent.  The allegation that circum to pressure of the opposite party’s complainant underwent conservative mode is not correct. The opposite party submitted that  chances of infection and  postoperative stiffness  and other complications are higher  in K wire fixation and  other operative techniques and it is the nature of fracture determines the modality of treatment  and  surgical fixation  is not  routine modality of management in all cases of fracture  unless otherwise  indicated. It is submitted that if the complainant had preference for any other modality of management   than what was advised by the second opposite party. The complainant could have very well refused treatment and so treatment else were and there is no merit in the contention that he was treated under pressure or duress of any form.

18.       The opposite party  specially denied the averment that the complainant felt pain after plaster application  and went to consult  the second opposite party several times  but he was reluctant  to verify the fingers or to consider X-ray and returned without proper diagnosis is ill motivated, that the second opposite party behaved harshly and instructed  not to visit   before 29/12/2017, that  he repeatedly visited the hospital and complained  severe pain , discomfort , humiliation,  itching  and difficulties etc. The opposite party submitted that after fracture fixation the complainant visited on three times for review as per advice.  On 06/12/2017 there was no deformity, swelling and pain subsided and advised to continue strapping.  On 20/12/2017 plaster splint was removed and prescribed calcium supplement and on 06/01/2018 strapping was also removed, X-ray evaluation done and advised mobilization, physio to treat post immobilization stiffness.  The patient required re assignment for further evaluation but he lost further follow-up.  The allegation of the complainant that  the second opposite party did not care  the condition  after plaster cast removal and the complainant given mandate to take X ray  is ill motivated   and so denied. It is admitted that second opposite party told everything but no need for further management is misleading and so denied.  It is submitted that post immobilization stiffness is an accepted problem seen after removal of strapping and he required mobilization physiotherapy and the reassessment   and given advice accordingly. The opposite party denied the statement that the complainant went home with persisting pain on little finger is not correct and so denied.  The opposite parties submitted that they are not aware of consultation with Dr. Muhammed Shafi and his treatment advice for surgery and bone grafting. The opposite party denied the allegation that callous attitude and irresponsible tendency from the part of the second opposite party resulted in mal union or little finger is highly ill motivated and hence denied. The opposite party submitted the procedure to correct mal union was not occasioned due to any carelessness or deficiency in the management of fracture of little finger. Mal union is an accepted complication Involved in fracture fixation irrespective of method and as per accepted treatment protocol non operative management is the preferred treatment for the type of fracture caused to the complainant.  The post immobilization stiffness is commonly seen after strapping and immobilization for which mobilization physiotherapy is the accepted treatment procedure.  Though the complainant was advised physiotherapy and review assessment he did not turn up for further consultation and lost follow-up. It is pertinent fact that the complainant was advised physiotherapy by doctor Shafi and the complainant’s case it was advised as an experiment is baseless.  

19.       The X ray taken on 06/01/2018 revealed mal union and thereafter the complainant lost follow-up with the second opposite party and rushed to consult other doctors and persuaded their advice. The allegation that the second opposite party committed negligence in not attending and caring despite consultation many times is baseless and hence denied. The allegation of the complainant that he was neglected after removing plaster cast and that X ray was taken at the compulsion of the complainant is ill motivated and there was no mistake, violation of medical ethics, deficiency in service or professional misconduct on the part of the second opposite party as alleged by the complainant.  It is further submitted that whether the patient required further intervention cannot be decided immediately after removal of strapping and every mal united fracture does not require surgical intervention. Based on radiographic appearance one cannot determine further management rather it can be decided later after physiotherapy and considering range of movement.  The allegation that mal union was occurred by the application of plaster cast without proper care and caution is not tenable or sustainable, the complainant lost his handwriting due to deformity of finger due to deficiency in service is baseless and so denied. The opposite party denied the averment that complainant suffered mental agony and physical disability etc. The case of complainant that corrective measures could have been avoided by nailing is based on wrong presumption regarding the accepted modality of treatment of fracture fixation of simple fracture of fracture of proximal phalanx. There is no damage has caused to the complainant by any act or omission on the part of the  second opposite party  and mal union of fracture was not caused due to any negligence or deficiency in service on his part . 

20.       The opposite party denied the averment that it was told from Ganga Medical Centre and hospitals private limited that mal union was occasioned due to improper care.  The allegation of the complainant that compound fracture is seen as per X ray and at least 7 times the complainant visited to consult the second opposite party is baseless and so denied.

21.       The opposite party further denied that treatment at Ganga medical center, expenses incurred for treatment etc. The complainant lost follow-up with the second opposite party after removal of strapping there was no chance for  re-assessment  and hence  whether  osteotomy was indispensable or not for  re gaining function of fingers  is a matter to be proved  with cogent evident. It is submitted that management through  osteotomy depends on various factors weigh the risk and benefits and  minor mal union deformities are usually accepted  when motion of surrounding  joints is satisfactory since osteotomy may lead to  complications like none union and difficulty to re-establish satisfactory  joint function .

22.       The opposite party submitted that the complainant filed this complaint   misrepresenting fact with view to extract money from the second opposite party without any just or sufficient cause. The amount shown as expended for treatment is highly exaggerated and the amount quantified on the head of pain and suffering and compensation is devoid of any substance or merit besides highly exorbitant, exaggerated and without any rationalize and so denied. In the light of the above-mentioned facts, the opposite party is not liable to compensate the complainant either jointly or severely, there is no cause of action against the opposite parties and the second opposite party is having qualification of MBBS D Ortho, M S Ortho with experience of 12 years as consultant orthopedic consultant surgeon and the complaint is liable to be dismissed with cost of the opposite parties.

23.       The complainant and opposite parties filed affidavit and documents. Subsequently the first opposite party filed application to withdraw the affidavit and which stands allowed. The documents on the side of complainant marked as Ext. A1 to A9.  Ext. A1 is copy of OP ticket issued from relief hospital and Trauma center, Kondotty dated 29/11/2017.  Ext. A2 is copy of OP ticket issued from relief hospital and Trauma center Kondotty dated 20/12/2017.  Ext. A3 is copy of OP ticket issued from relief hospital and trauma center Kondotty dated 05/01/2018.  Ext. A4 is copy of requisition form issued form relief hospital and trauma center Kondotty dated 06/01/2018.  Ext. A5 is copy of prescription issued by Dr. Muhammed Shafi dated 27/01/2018.  Ext. A6 is copy of   prescription issued by Mr. Rohith K. Nair BPT, DNYS, MIAP, dated 29/01/2018.  Ext. A7 is copy of prescription issued by Dr. Raghuram dated 13/02/2018 from ASTEN, specialty orthopedic hospital. Ext. A8 is prescription issued from ASTEN, specialty orthopedic hospital dated 21/03/2018. Ext. A9 is copy of discharge summary dated 27/04/2018.  No document for opposite parties.  The complainant was examined as PW1 and the second opposite party was examined as DW1.

24.       Heard complainant and opposite parties. Perused affidavit and documents. The opposite party filed notes of argument also. The following points arise for consideration.

  1. Whether there is negligence and thereby deficiency on the part of the opposite parties?
  2. Relief and cost?

25.       Point No.1

            The case of the complainant is that he sustained fracture to his right little finger on 29/11/2017 after hitting his vehicle against government transport vehicle. He was taken to the first opposite party hospital and he was consulted by the second opposite party. The complainant submit that he was aware of  this sort of injuries since he is in charge of a school for disabled   and therefore suggested to  implant nail  for his little finger because change in shape  of finger could be noticed  upfront. But the opposite party refused to apply nail implantation but applied plaster cast along with tying the litter finger and ring finger together. The complainant submitted that circum to the pressure of the opposite parties complainant underwent alleged conservative mode of treatment without proper application of mind and conscious of opposite parties. The complainant further submitted that after application of plaster cast on 29/11/2017, the complainant was feeling pain over the little finger though it was under plaster cast and went to the doctor several time but he was very reluctant to even verifying the fingers or to consider another X-ray though complainant requested and the complainant   had to return all the time without proper diagnose. The complainant alleges while he approached the opposite party, the opposite party got annoyed and behaved harshly and instructed not to approach him before 29/12/2017. The complainant submit that he approached the hospital and repeatedly stated regarding the severe pain , discomfort , humiliation , itching and difficulties suffered in the little finger but nothing went in to his deaf ears and told that everything is perfect  and not even  an X-ray is required .  On 06/01/2018 when the plaster cast was removed at the instruction of the second opposite party it was apparent that shape of little finger was changed but the second opposite party was not at all cared.  As a result of all this there was mal union of fractured area and found it was very difficult to make it set right the mal union.  Ultimately, he was taken to the Ganga Hospital Coimbatore and undergone treatment there.  The allegation of complainant is there was mal union of the little finger and the opposite parties committed gross medical negligence by not attending and not caring the facts though the complainant went for consultation many of times.  There is violation of medical ethics in addition to the total deficiency of service and dereliction of duty. The application of plaster cast was without any proper care or caution and there for mal union has occasioned.  It can be seen from X-ray that additional bone growth was seen because of improper correction done just prior to the application of plaster cast.   There was additional growth with obstructed movement of the finger.  The complainant was having almost good handwriting which was lost due to the deformity of the finger and was caused due to the deficiency of service of the opposite parties.  The complainant cannot even hold or give shake hand or use the little finger in any manner and   is highly painful.  Moreover, the handwriting is also lost its beauty.

26.       Now the issue is that whether there is negligence from the part of the second opposite party in treating the complainant.  The complainant produced Ext. A1 to A9 and filed affidavit in lieu of evidence.  The complainant was cross examined by the counsel for the opposite party.  It appears the complainant   suggested   to implant nail for his little finger because change in shape of the finger could be notice upfront.  But the opposite party opted conservative mode of treatment and applied plaster cast along with tying the little finger and ring finger together.

27.       The opposite party submitted that the complainant was treated in first opposite party hospital only as an outpatient.  The complainant was at liberty to approach to any other hospital or doctors for a second opinion.  The opposite party submitted that while he was brought to the hospital there was no blood or wound on the injury spot, but only pain and swelling.  After examining the X ray the doctor said that there is no issue and the doctor started conservative mode of treatment. The complainant   did not make any obstruction for the mode of treatment opted by the opposite party. If the complainant was not satisfied or doubtful about the treatment administered by the opposite parties, the complainant would have left the hospital or should have taken a second opinion since she was treated only as an outpatient.  The opposite party submitted that the complainant sustained injury to the proximal phalanx of the right little finger and treatment provided by the second opposite party was as per medical science.  It is specifically contended that the complainant had no external wound at the injury site and the injury was on phalanx of the right little finger. Hence in such situation no doctor would advise for any complicated surgery by cutting open the injury site.

28.       Now it is revealed that instead of fixing internal nail the second opposite party opted for a conservative mode of treatment which resulted all the complications, according to the complainant.  But the opposite party submitted that he duly examined the   nature of injuries and there were no external injuries. So, the opposite party opted for conservative mode of management instead of complicated surgery by cutting open the injury site. The procedure opted by the doctor was being a different one, that alone will not constitute negligence on the part of the treated doctor.  The complainant has got a case he suggested for internal nailing. But the doctor was reluctant to do so. The second opposite party explained why he is opted for conservative mode of treatment despite the internal nailing, If at all the complainant made such a suggestion.  The apex court and our National Disputes Consumer Disputes Commission held on various occasions that opting different mode of treatment alone cannot be treated as a medical negligence. In this complaint the complainant   filed affidavit and documents and he was examined before the Commission also.  But the complainant did not site any expert to establish the medical negligence on the part of the opposite party. The opposite party specifically contented that closed manual reduction and immobilization is the standard and medically accepted treatment for the diagnosed simple fracture of proximal phalanx nevertheless it carries a risk of mal-union, delayed union and non-union. The complainant could not produce any expert or documentary evidence against the contention of opposite parties. The alleged negligence on the part of second opposite party   cannot be treated as an apparent negligence to uphold the contention of complainant.

29.       The Commission can realize the miseries that the complainant faced due to the   complications during management of fracture injury to his right little finger.  It is learned that the complainant is a teacher handling the physically disabled students. The injury may result in the performance of the teacher as contended in the complaint.  At the same time a doctor who treated the complainant at his ability and competency cannot be penalized without substantial evidence including expert evidence. There is no expert evidence to establish the case of the complainant. It is already mentioned above that the apex court and National Commission has laid down certain guide lines while dealing the case of medical negligence. A doctor is expected to exercise the ordinary skill and care and not the skill of the highest degree. It is also held that while adopting a course of treatment the medical professional must ensure that it is not unreasonable.  A medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course treatment in preference to another which is held in “Jacob Mathew Vs State of Punjab (2005)6 SCC 1” A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant   can be said to be proved.  It is the obligation of the complainant to provide the “facta probanda” as well as the “facta probantia “.

30.       Considering the entire documents and facts before the Commission we cannot find medical negligence on the part of the second opposite party   in accordance with the principals laid down by the Apex court.

31.       Since we find the first point against the complainant, the consideration of second point regarding relief and cost does not arise and so the complaint stands dismissed.

            Dated this 26th  day of June , 2023.

Mohandasan . K, President

     Preethi Sivaraman.C, Member

     Mohamed Ismayil.C.V, Member

 

 

 

 

 

APPENDIX

Witness examined on the side of the complainant: PW1

PW1: Abdul Razak S/o  Moosakkuty.M.K (Complainant )

Documents marked on the side of the complainant: Ext.A1to A

Ext.A1: Copy of  OP ticket issued from relief hospital and  Trauma center , Kondotty

             dated 29/11/2017. 

Ext.A2: Copy of OP ticket issued from relief hospital land Trauma center Kondotty

             dated 20/12/2017.

Ext A3: Copy of OP ticket issued from relief hospital and trauma center Kondotty

              dated 05/01/2018. 

Ext A4: Copy of requisition form issued form relief hospital and trauma center

             Kondotty dated 06/01/2018.

Ext A5: Copy of prescription issued by Dr. Muhammed Shafi dated 27/01/2018.

Ext.A6: Copy of   prescription issued by Mr. Rohith K. Nair BPT, DNYS , MIAP ,

             dated 29/01/2018.

Ext A7: Copy of prescription issued by Dr. Raghuram dated 13/02/2018 from ASTEN,

             specialty orthopedic hospital.

Ext A8: Prescription issued from ASTEN, specialty orthopedic hospital dated

           21/03/2018.

Ext A9: discharge summary dated 27/04/2018.   

Witness examined on the side

 of the opposite party: DW1

DW1:  Dr. Saibin Ahammed Saheer (Second opposite party)

Documents marked on the side of the opposite party: Nil

 

Mohandasan . K, President

     Preethi Sivaraman.C, Member

     VPH                                                                            Mohamed Ismayil.C.V, Member

 
 
[HON'BLE MR. MOHANDASAN K]
PRESIDENT
 

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