IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 16th day of July, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) O.P.No.42/04 (Filed on 20.02.2004)Between: Nandakumar. N.R, S/o. Raghava Kurup, Nadumpaprampil, Bhagavathikkum Padinjaru, Keerukuzhy.P.O., Pathanamthitta Dist – 689 502. (By Adv. R. Gopikrishnan) ..... Complainant And: 1. Medical Superintendent, NSS Medical Mission Hospital, Pandalam – 689 501. (By Adv. K. Jyothikumar) 2. Dr. J. Sharma, Orthopedic Surgeon, NSS Mecical Mission Hospital, Pandalam – 689 501. (By Adv. P.K. Mathew) Addl.3. Branch Manager, Oriental Insurance Co. Ltd., Changanassery Branch. Addl.4. Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Thiruvalla. ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows:- On 12.7.03 the complainant met with an accident and he was admitted in 1st opposite party hospital as I.P.No.3088. On X-ray it was noticed that he had sustained a Supra Condyiar fracture on left elbow and 2nd opposite party advised him to undergo a major surgery. Accordingly open reduction and internal fixation of left elbow was done to the complainant. In the operation plates and screws were implanted and the fracture was internally joined. The complainant was discharged on 19.7.2003. On discharge he was advised for review after a week. An amount of Rs.25,000/- was paid to the 1st opposite party towards the treatment expenses of the complainant. On the next day itself the complainant developed severe pain to his left hand and he was taken to the hospital. After examination 2nd opposite party opinioned to administer a costly injection and directed to remit an amount of Rs.4,500/- for purchasing the medicine from Ernakulam. The complainant do the same but the administration of said injection does not deteriorate the pain. The ralatives of the complainant noticed the re-union of the bones from the X-ray after taken the surgery. Then the 2nd opposite party replied that certain portion of the bone was removed and hence the gap. 3. The pain on the right elbow was increased day by day then the relatives of the complainant felt that an expert consultation is required and the complainant was taken to S.P. Fort Hospital, Trivandrum and admitted there on 9.10.03. After the examination Dr. Cheriyan Thomas from the above hospital opined that there is a non-union of the fractured bones and this condition is allowed there is no scope for union. Further he observed that the 2nd opposite party ought not have removed the pieces of bones from the fractured portion or he should have fixed the bones only after proper grafting. The complainant had undergone another surgery at Fort Hospital where the fixation was unscrewed and a fresh fixation was done after proper bone grafting. The complainant was discharged from on 13.10.03 and he had incurred again an amount of Rs.50,000/- as treatment expenses. The 2nd opposite party confirmed the complainant before his operation that the operation could done successfully in the 1st opposite party hospital and a reference to major hospital is not necessary. If the 2nd opposite party had done the operation carefully and consciously to the complainant or referred him to a major hospital for better management the 2nd surgery and treatment of the complainant can be avoided. Now the complainant had a total permanant disability of left hand. Due to the negligent treatment given by the 2nd opposite party in 1st opposite party hospital the complainant had suffered mental agony, financial loss and other inconveniences. For that the opposite parties are liable to compensate the same. Hence he filed this complaint for getting an order for directing the opposite parties to pay an amount of Rs.5,00,000/- as compensation along with cost to the complainant. The complainant prays for granting the reliefs. 4. The 1st opposite party has filed a version stating the following contentions: The complainant was admitted in NSS Medical Mission Hospital on 12.7.03 at 9.30 a.m. for the treatment of injuries sustained him in a road accident. He was seen and treated by the 2nd opposite party, an Orthopaedic surgeon attached to this hospital X-ray of the complainant was taken and it was diagnosed that he had a lower Supra Condylar fracture on the left elbow. After getting the consent of the complainant an operation was conducted on him under General Anesthesia. Bone grafting was also done properly by the 2nd opposite party. After surgery the complainant was treated with IV fluids, blood Transfusion, Injection Magnamycin 1 gm.IV, 12th hourly Injection Tramadol I.V , 8th hourly and Inj.Ketanov 505. On 14.7.03 it was found that the wound was clear. Check X-ray showed that there was a snall gap at fracture site and that was only a normal gap, it would take several months for a complete re-union of the bone in the case of a fracture like the complainant was sustained. On 19.7.03 the patient was discharged with the advice of continuing treatment as outpatient. At the time of discharge the complainant has no pain and his health condition was stable and better. The hospital is fully equipped to conduct operation as the one conducted on the complainant. The operation was done successfully hence no reference to any other hospital was not done. As the treatment charges they have received only an amount of Rs.16,987/- from the complainant. The 1st opposite party has no knowledge with regard to the various treatments to be taken by the complainant at S.P. Fort Hospital, Thiruvananthapuram and the expenses incurred to him. 5. The complainant is entitled to claims Tribunal, thus if any compensation is granted as claimed the complainant will be benefited twice in one and the same accident. He cannot be permitted to reap such an advantage. The pain and the like complaints would persist for some more days as the operation conducted on the complainant was of such a nature. A complete re-union of the bone would take place only after a period of about one year. If any operation as stated was conducted at S.P. Fort Hospital, it was done in haste without properly considering the nature of the treatment given to the complainant. The complainant was approached S.P. Fort Hospital without taking an opinion or direction from the opposite parties. The 2nd opposite party was careful in treating the complainant therefore he cannot in any way accuse the opposite parties for the alleged disability of his hand. There is no deficiency of service on the part of opposite parties in treating the complainant. Therefore the opposite parties are not liable to pay any compensation to the complainant. There was a valid insurance cover for the hospital with the Oriental Insurance Company, the period when the complainant was treated in the NSS Medical Mission Hospital. If the complainant is entitled to get any amount, the company is liable to pay the same. From the above circumstances, this opposite party is prayed for the dismissal of the complaint with their cost. 6. The 2nd opposite party has filed a version stating the following contentions: The complaint is not maintainable either in law or on facts. The complainant was admitted the 1st opposite party hospital on 12.7.2010 with an alleged history of sustaining injury to his left elbow following a road traffic accident. The 2nd opposite party attended the complainant with due care and his examination revealed swelling and tenderness of left elbow without any neuro vasular deficit X-ray investigation result revealed comminuted displaced supra condylar fracture of left elbow. On the basis of the clinical and investigation findings, the complainant and his bystanders were duly informed that he required surgery by open reduction and internal fixation of the fracture under general anesthesia. After fully conversant with the pros and cons of surgical treatment and its inherent complications the complainant voluntarily agreed and gave written consent. 7. Under all aseptic care and precaution, the 2nd opposite party had conducted the open reduction and internal fixation of fracture under general anesthesia. During the surgery the fracture was found to be unstable and a large cancellous third fragment devoid of any soft tissue attachment was noted. The fragment was fixed with a screw and the remaining fracture was fixed with plate and screws with good bony contact. No portion of bone was removed from the area as allegedly stated to have been observed by the doctor at S.P. Fort Hospital, Thiruvananthapuram as there was only one large piece of loose cancellous bone devoid of any blood supply which was fixed back as a graft. Postoperative period was uneventful and there was no neuro vascular deficit. Following surgery, the 2nd opposite party informed the patient and his relatives about the intra operative finding regarding the position of the fragments and cautioned them about the possibility of delay likely to ensue in the union of fracture and the need for bone grafting at a later stage if the union is not in progress as desired. Hence with proper advice for review the complainant was discharged on 19.7.03. The complainant reviewed on 23.7.03 and on that date sutures were removed under short general anesthesia. After suture removal the complainant was advised to take Inj.Biobon (injectable bone grafting substitute) in order to enhance the chances of union and to obviate the need for grafting at a later stage. The Inj. Bibbon was administered with the complainant’s consonance and informing him and his relatives about its need and purpose. On the review on 23.7.03 the complainant did not have any complaint of pain nor he reported that he was suffering from pain previously. 8. The complainant came for review on 11.8.03 and on 14.8.03 X-rays were taken and it was found that position was well maintained hence with utmost care a protective above elbow plaster cast was applied to protect the implants. During these visits, the complainant had no pain and he had full range of painless motion. The complainant came for review again on 15.9.03 and sign of progress of union was advancing as desired and after proper examination he was advised further check up on 29.9.03, on that date plaster cast were removed and check X-ray was taken. The X-ray indication was no progress in union and in the nature of fracture. It became obvious that union may take more time than expected. This fact was taken to the notice of the complainant. The complainant was advised to undergo bone grafting to aid and speed up the process of union. This was the appropriate procedure to be followed in the circumstance. The complainant was advised to come for bone grafting under the treatment of the 2nd opposite party at the earliest, but in utter disregard he never turned up for bone frafting and was lost to further follow up treatment. The complainant came after 1 ½ months i.e. on 4.11.03 for getting signature in reimbursement form and this time also the 2nd opposite party had sincerely cautioned him about the need for bone grafting but the complainant without any interest and seriousness exhibited his limb before the 2nd opposite party and claimed that he has no pain, no problem and that he is perfectly alright by suppressing the fact of his treatment by bone grafting at S.P. Fort Hospital. The delay in union is entirely due to the nature of injury and the gravity of fracture being a comminuted fracture with low vascularity of a large fragment, and which is a medically accepted fact. The 2nd opposite party had followed standard and medically accepted procedure in the management of the complainant and there was no negligence or carelessness on his part in the administration of the procedure. Hence the 2nd opposite party is not liable to pay any amount to the complainant by way of compensation. 9. The decision of the 2nd opposite party for surgical treatment by open reduction and internal fixation was apt and proper being the scientifically accepted treatment for comminuted supra condylar fracture. The complainant was operated on the date of admission itself since the 1st opposite party hospital was having full fledged facilities to undertake said surgery even emergently. The 2nd opposite party is not aware of the treatment expenses incurred by the complainant. It is false that the complainant developed intolerable pain on his left hand. The statement that being unable to bear the pain he was taken to 2nd opposite party, after examination he opined to administer costly injection and required to remit Rs.4,500/- for purchasing the same is false and stated with an intention to mis lead and hence denied by this opposite party. Inj. Bibbon was not administered in relief of pain as alleged in the complainant. It was administered solely for the purpose of enhancing the chances of union and this fact was made known to the complainant. This opposite party is not aware of the alleged admission in S.P. Fort Hospital on 9.10.03. The statement of alleged opinion expressed by Dr. Cherian Thomas regarding non-union of fracture bone is not a new finding and this fact was made known to the complainant by 2nd opposite party. On 29.9.03 itself and also advised its proper remedy through bone grafting. Small fracture gap seen anteriorly was due to mild angulation at the fracture site as that was the most stable position obtained during surgery and it ensured good bony contact posteriorily where there was no fracture gap. Bone grafting was not required initially as the large cancellous bone itself acted as a graft. The surgical treatment done at S.P. Fort Hospital was not necessitated by any fault or failure on the part of the 2nd opposite party. This opposite party is not liable to the treatment expenses incurred by the complainant at Fort Hospital. There was no circumstance to refer the complainant to higher centre since very good facilities were available in the 1st opposite party hospital. 10. There is no deficiency of service on the part of the 2nd opposite party since the 2nd opposite party adopted standard and medically accepted procedure in the treatment of the complaint. The facilities for such surgery existed in the hospital and many other patients have successfully undergone the same procedure at a much lower cost. It may be noted that a confirmed diagnosis of non-union can be made only after a period of nine months as per US-FDA. So at the end of 3 months only a diagnosis of non-union cannot be made definitely. Union across an avascular fragment may take more time than expected as in this case which is well described in Campbells operative orthopaedics, 9th edition, vol-3 page-2580. The delay in union is entirely due to the nature of injury, that is, loss of vascularity of a large fragment over which the 2nd opposite party had no control. Hence the mental agony and pecuniary loss stated to have suffered by the complainant has no rationale and sagacious backing and hence denied. The 2nd opposite party is not liable to compensate the complainant. 11. This opposite party is a qualified and experienced in the management of identical cases who had acted with due diligence and care throughout the treatment of the complainant. During the course of treatment of the complainant the 2nd opposite party had been working as a paid employee of 1st opposite party hence principle of vicarious liability is applicable to this case. There is no negligence or deficiency in service on the part of the 2nd opposite party as alleged by the complainant. The complainant is not entitled to get any amount as compensation from the 2nd opposite party. The complainant is frivolous and vexatious and to harass the 2nd opposite party. Therefore, 2nd opposite party prayed for the dismissal of the complaint with his cost. 12. The 3rd and 4th opposite parties have filed a common version raising the contentions stated by the 1st opposite party as well as 2nd opposite party. In addition to that contentions this opposite parties contended that the insured is duty bound to give written notice to the insurer regarding the claim made against the insured. In this case the insured failed to comply with the conditions in the policy, which is a violation of the policy conditions, which will disentitle the insured to claim indemnification. The amount claimed in the complaint is highly exaggerated and inflated. The complainant is not entitled to get any amount as compensation in this case. Therefore this opposite parties prayed for the dismissal of the complaint with their cost. 13. The points for consideration in this complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Reliefs & Costs? 14. The evidence in this case consists of the oral evidence of the complainant as PW1 and Ext.A1 to A7 were marked. One witness for the complainant who treated the complainant at S.P. Fort Hospital has been examined as PW2. For the opposite parties, 2nd opposite party has been adduced oral evidence as DW1 and Ext.B1 and B2 marked. One witness for the opposite parties as an expert has been examined as DW2. After closure of the evidence, both sides heard. 15. The complainant’s case is that he was admitted in the 1st opposite party hospital on 12.7.03 due to the injury sustained in his left elbow following a road accident. After investigation 2nd opposite party diagnosed that he had a lower Supra Condylar fracture of the left elbow. The 2nd opposite party had conducted the open reduction and internal fixation of fracture to the complainant and he was discharged on 19.7.03. On the next day itself the complainant severe pain of his left hand and he was taken to 2nd opposite party. After examination 2nd opposite party suggested to administer a costly injection and it was administered to him. Even after there is no relief of pain. Then the complainant was taken to S.P. Fort Hospital, Thiruvananthapuram. After examination the doctor opined that there is non-union of the fracture and if the condition exist there is no scope for re-union. The complainant had undergone another major surgery at S.P. Fort Hospital where the fixation is unscrewed and a fresh fixation was done after proper bone grafting. The complainant had again incurred a sum of Rs.50,000/- for his treatment. According to him, there is a negligence and deficiency in treatment done by the 2nd opposite party in 1st opposite party’s hospital hence he suffered mental agony, financial loss and other inconveniences. Therefore he filed this complaint for getting the reliefs as sought for in the complaint. 16. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Exts.A1 to A7 were marked. Ext.A1 is the X-rays of the complainant’s left elbow taken by the 1st opposite party hospital and S.P. Fort Hospital, Thiruvananthapuram. Ext.A2 series are the medical bills in 7 numbers for Rs.17,703/- issued by the 1st opposite party to the complainant. Ext.A3 series are the other medical bills (7 Nos.) for the purchase of medicine on the direction of the 2nd opposite party. Ext.A4 is the medical bill for the purchase of the medicine from Ernakulam on the direction of the 2nd opposite party. Ext.A5 is the medical bills (17 Nos.) for Rs.36,262/- issued from S.P. Fort Hospital to the complainant. Ext.A6 is the treatment records from S.P. Fort Hospital for the treatment of the complainant. Ext.A7 is the treatment records of the complainant for the treatment done by PW2 in his private clinic. The opposite party’s counsel has been cross-examined PW1. 17. One witness, the doctor who treated the complainant at S.P. Fort Hospital has been examined as PW2 and Ext.A6 and Ext.A7 were marked through him for the complainant. 18. The 1st opposite party contended that this hospital is fully equipped to conduct operation as the one conducted on the complainant. The 2nd opposite party was done the operation successfully check X-ray showed that there was a small gap at fracture site and that was only a normal gap at that time as it would take several months for a complete reunion of the bone in the case of fracture like the one sustained to the complainant. The 2nd opposite party was careful in treating the complainant there is no deficiency of service on the part of the opposite parties in treating the complainant. Therefore they are not liable to pay any amount to the complainant. 19. The 2nd opposite party contended that the complainant is frivolous, vexatious and devoid of truth or bonafides. There is no negligence or deficiency in service from the part of him for treating the complainant. The 2nd opposite party attended the complainant with due care and under all aseptic care and precaution conducted the open reduction and in turned fixation to the complainant. After the operation the complainant came for review on 29.9.03 the X-ray indicated no progress in union and in the nature of fracture. Then the complainant was advised to undergo bone grafting to aid and speed up the process of union. But he never turned up for bone grafting. This opposite party had followed standard and medically accepted procedure in the management of the complainant. The bone grafting subsequently done in S.P. Fort Hospital necessitated by any fault or failure on the part of the 2nd opposite party. Hence he is not liable for any payment to the complainant. 20. The 3rd and 4th opposite party raised the same contentions raised by the 1st and 2nd opposite party. According to him, the insured failed to comply with the conditions of the policy. They have not given any notice to the insurer regarding the claim. 21. In order to prove the contentions of opposite parties, 2nd opposite party adduced oral evidence as DW1 and Ext.B1 and B2 were marked. Ext.B1 is the treatment records for the treatment of the complainant as O.P. from 12.7.03 to 19.2.03 at 1st opposite party hospital. Ext.B2 is the treatment records for the treatment of the complainant as I.P. in 1st opposite party hospital. 22. For proving their contentions one witness, as an expert in Orthopeadic from Pushpagiri Hospital has examined as DW2. 23. On going through the evidences in this case, Ext.B1 shows that the complainant had admitted in the 1st opposite party hospital on 12.7.03 and he was discharged on 19.7.03. According to the complainant after the discharge the complainant developed severe pain in left elbow and noticed the non-union of the bones from X-ray taken after the surgery. Due to the severe pain and non-union of the bones he was admitted in S.P. Fort Hospital. From there he undergone another surgery, fresh fixation was done after proper bone grafting. The complainant had incurred again financial expenses due to the negligent treatment done in the 1st opposite party hospital by 2nd opposite party and he had permanent disability of left hand. 24. According to 2nd opposite party he contended that at the time of reviewing the patient on 29.9.03 the complainant was advised to undergo bone grafting to aid and speed up the process of union and asked him to come for the same early as for as possible. But the complainant did not turn up with his advice. The delay of re-union is entirely due to the nature of the injury and gravity of fracture being a comminuted fracture with a low vascularity of large fragment and which is medically accepted fact. Standard, proper and universally accepted procedure was followed to the complainant in his treatment. On a perusal of the special ticket enclosed in Ext.B2 it was recorded on 4.11.03 as “Not interested in bone grafting even after being explained everything”. The complainant admitted that in S.P. Fort Hospital new fixation had done after proper bone grafting. 25. On going through the depositions of PW2, an expert who treated the complainant at S.P. Fort Hospital stated as follows in chief examination. “Ext.A1 X-rayn ImWp¶ Fracture Comminuted fracture of the left lower end of Humerous BWv C¯cw tIkpIfn Open Reduction and Internal Fixation with or without bone grafting NnIn coXnbmWv sN¿p¶Xv. At the time of cross by 1st opposite party, after the perusal of Ext.B1 he stated that “case sheet {]Imcw 12.7.03#194; Open reduction and Internal Fixation BWv sNbvXncn¡p¶Xv. C¯cw tIkpIfn standard treatment BWv AhnsSbpw \ÂInbncn¡p¶Xv”. At the time of cross-examination by 2nd opposite party, PW2 stated that “C¯cw fracturefn delayed union DmImw. Further he stated “grafting DSs\ sN¿msX bone pieces refix sN¿p¶Xpw standard treatment BWv. Cu tIkn 2nd operation \S¯nbXv 1st operationptijw th{X healing DmIm¯Ip sImmWv and he adds “it can happen”. 26. From the deposition of DW2, an expert in Orthopaedic Surgery at the time of cross-examination by the first opposite party he opinioned that there is no negligent treatment from the part of 2nd opposite party in treating the complainant. At the time of cross-examination by the complainant he stated that “Internal Fixation icnbmbn \S¯nbm B `mK¯v bend DmInà F¶p ]dbp¶Xv icnbÃ. Nne kµ§fn (Unavoidable circumstances) Aev]w bend \ÂIn icnbmt¡n hcpw. By answering a question put by the Forum he stated that Cu patient Fsâ ASp¡Â BWv h¶ncp¶sX¦nepw Snbm#161;v \ÂInbn«pÅ NnInXs¶ \n±in¡pambncp¶p”. From the available evidences the materials on records and expert opinions does not brought out any deficiency or negligence from the part of 2nd opposite party in treating the complainant. Experts from both sides categorically expressed their opinion that the 2nd opposite party had followed the procedures universally accepted in such complications and standard treatments were given to the complainant. Further, in such a fracture, sustained to the complainant, delayed Union may happen. Moreover by seeing the non-union of the bones the 2nd opposite party advised the complainant for bone grafting. The materials on records and expert opinions clearly reveals that the line of treatment followed by the second opposite party was as per the accepted practice and was not contradicted with any materials on record. In the circumstances, we cannot find any deficiency or negligence from the part of 2nd opposite party in treating the complainant at 1st opposite party’s hospital. The complainant failed to prove the alleged deficiency and negligence in the treatment given to the complainant by the 2nd opposite party. In view of the above discussion, we cannot allow the complainant’s prayer. 27. In the result, this complaint is dismissed. No cost. Declared in the Open Forum on this the 16th day of July, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. JacobStephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Nandakumar. N.RPW2 : Cherian. M. Thomas Exhibits marked on the side of the complainant: A1 : X-rays of the complainant’s left elbow taken by NSS Medical Mission Hospital, Pandalam and S.P. Fort Hospital, Thiruvananthapuram. A2 to A2(f) : Medical Bills (7 Nos.) for Rs.17,703/- issued by 1st opposite party to the complainant. A3 to A3(f) } Medical Bills (7 Nos.) issued by Thushara Medicals, M.M. Junction, Pandalam to the complainant. A4 : Medical bill dated 21.7.03 for Rs.4,500/- issued by Sun Ensign Surgi Care to the complainant. A5 to A5(h) : Medical bills (17 Nos.) for Rs.36,262/- issued from S.P. Fort Hospital to the complainant. A6 : Treatment records issued by S.P. Fort Hospital for the treatment of the complainant. A7 : Prescription chit. Witness examined on the side of the opposite parties: DW1 : Dr. Jatindra Sharma DW2 : Dr. Abraham Jose Exhibits marked on the side of the opposite parties: B1 : Inpatient Case Record for the treatment of the complainant to NSS Medical Mission Hospital, Pandalam. B2 : Out-patient Record for the treatment of the complainant to NSS Medical Mission Hospital, Pandalam. (By Order) Senior Superintendent. Copy to: (1) Nandakumar. N.R, Nadumpaprampil, Bhagavathikkum Padinjaru, Keerukuzhy.P.O., Pathanamthitta Dist – 689 502. (2) The Medical Superintendent, NSS Mecial Mission Hospital, Pandalam – 689 501. (3) Dr. J. Sharma, Orthopedic Surgeon, NSS Mecical Mission Hospital, Pandalam – 689 501. (4) The Branch Manager, Oriental Insurance Co. Ltd., Changanassery Branch. (5) The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Thiruvalla. (6) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
