OF 2008 AGAINST C.D.NO.257 OF 1996 DISTRICT CONSUMER FORUM NIZAMABAD

Between

Anamulla Satyanarayana S/o Lingam
Aged about 52 years, occ: Medical Practitioner
Orthopedic Surgeon C/o Sathya Sri Orthopedic
Nursing Home, Nizamabad

Appellant/opposite party

        A N D

Aleti Linganna S/o Satyanna
Aged about 44 years, occ: Agriculture
R/o Bussapoor (V) of Balkonda Mandal
Nizamabad District     

                                                        Respondent/complainant

Counsel for the Appellant             Sri K.Visweswara Rao

Counsel for the Respondent          Sri Yerram Ganapathi

QUORUM:         SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                                TUESDAY THE SIXTEENTH DAY OF NOVEMBER

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                      ***

1.     The opposite party is the appellant.

2.     The factual matrix leading to filing of the appeal is that on 21.9.1992 the complainant with fractured leg was admitted to the opposite party hospital.  The opposite party after thorough check-up and having conducted tests advised the complainant to undergo an operation for fixing the steel rod in his leg.   The complainant underwent operation and was discharged from the hospital with the assurance that he can walk within a period of 2 to 3 months.  The complainant followed all the instructions given by the opposite party but as there was no improvement in his leg, he, again approached the opposite party for several times by spending the amount for to and fro charges and for medical expenses yet there was no improvement of his leg.   The opposite party on 9.7.1994 again operated and removed the steel rod from the leg of the complainant without fixing any other rod in its place.  As the condition of the leg of the complainant deteriorated he was admitted in Challa Nursing Home in Hyderabad where Dr.C.Jagan Mohan Reddy operated upon the complainant and fixed another steel rod in his leg and since then the position of leg of the complainant is improved.  The complainant through his relatives demanded the opposite party for refund of the amount spent towards compensation for improper treatment rendered by the opposite party but the opposite party refused to refund the amount.  The complainant had sent a letter but there was no reply from the opposite party. Hence the complainant filed the complaint seeking direction to the opposite party to pay `85,000/- towards medical expenses and other expenses with interest, compensation of `2 lakh and costs.

3.     Opposite party resisted the case contending that the complainant was admitted in their nursing home on 21.9.1992 for treatment of injuries sustained in a road accident.  The injuries were treated primarily at an unqualified doctor at his village.  The injuries received by the complainant are i) complicated, commuted fractures of left thigh bone, ii) avulusion of skin serotum and penis, iii) superficial abrasion foot right side and iv) superficial abrasion left fore arm.  At the time of admission the complainant was in severe shock and wounds were bleeding and all wounds debrided and toileted and the patient was made comfortable in a traction.  The patient was operated on 26.9.1992 successfully by passing an intramedullary nail and binding together the unsupported multiple fragments of bone by a wire.  The scrotal and other injuries were repaired.  All multiple soft tissues healed well within two weeks time and was discharged from the hospital with the advice of absolute bed rest to the patient.  The complainant was brought for follow up which shows early signs of fracture healing.  The doctor advised to come after three months. On 10.2.1993 the complainant visited the opposite party and the X-rays showed fracture consolidation (union) and the patient was advised to have protected partial weight bearing on the limb with the help of auxiliary crutches and also advised him not to go to agricultural fields, not to drive any vehicle and not to walk on stair case and he was advised to follow up every six weeks until bone becomes solidly united.  Contrary to it the complainant came on 18.9.1993 to the hospital on a scooter without even holding a hand stick and was attending agricultural works in his village at an earliest stage of seven months.  This type of fracture usually takes a minimum of six months to one year of period for total consolidation. 

4.     X-rays at that time showed bend at the fractured site and even the rod inside was also bend.  The complainant was warned of dangerous sequels of non-cooperation and rough attitude towards the management and healing of fracture.  Later, the complainant was seen after another gap of five months on 9.7.1994 complaining of pain at hip region and relief of pain at fracture site and insisted for removal of nail.  X-ray confirmed of strong and solid union of fracture site and hence doctor removed the nail through a very small operation on left hip region.  The complainant was seen in the opposite party hospital on 28.7.1994 which was his last visit to the opposite party hospital.  The prescription of Challa Nursing Home does not reveal any rod fixation or nail fixation into the bone.  The prescription reveals fracture of right femer shaft non-union corrected under general anesthesia.  Any fracture non-union would not be corrected momentarily under general anesthesia.  The patient’s fracture was on left side but not on right side.  All the information made the opposite party suspicious that the complainant might have sustained another injury with the consequences later on.  Hence, prayed for dismissal of the complaint.

5.     The complainant has filed his affidavit and documents Exs.A1 to A23.  Dr.Jaganmohan Reddy, was examined as PW2.

6.     The opposite party has filed his affidavit but no documents

7.     The District forum has allowed the complaint on the premise that the opposite party had not substantiated his plea that the complainant was negligent during the post operative stage in regard to following the instructions and awarded an amount of `1,00,000/-with a rider that default on the part of the opposite party would attract interest @ 9% per annum on the amount awarded from the date of filing of the complaint.

8.     Feeling aggrieved by the order of the District Forum the opposite party has filed the appeal contending that the complainant has not established any negligence and that the report of Principal, Osmania Medical College Hyderabad would show that hypertrophy non-union i.e., an attempt of fracture union by the body which was not allowed to consolidate properly due to non-compliance on the part of the individual or systemic diseases. 

9.     The point for consideration is whether there was any medical negligence rendered in the treatment by the opposite party?

10.    The contention of the learned counsel for the  appellant is that the non union of the bone was because of the negligence on the part of the complainant in not properly following the instructions of the doctor. The learned counsel has contended that the principal Osmania Medical College, Hyderabad for whose opinion the matter was referred has not stated in his report that the opposite party has not rendered proper treatment and that even after the second operation was performed in Challa Nursing Home, the non union of the bone indicates the non compliance of instructions on the part of the complainant and because of lack of attempt of fracture union by the body. The Principal of the Osmania Medical College has opined that “the X-ray had shown hypertrophy non union i.e., an attempt of fracture union by the body which was not allowed to consolidation properly due to non-compliance on the part of the individual or systemic diseases”. The  doctor has not stated the basis or source to come to the conclusion that the non union of the fracture was either due to non compliance on the part of the individual or due to systemic diseases. The report is ambiguous and does not help the case of opposite party. The doctor was not sure as to the exact cause for the non union of the fracture.

11.    The opposite party had not advised the complainant to come for follow up at a specified time. The prescription dated 13-04-1992 shows that the opposite party has advised for review after 30-12-1992. The complainant attended for review on 10-02-1993. The complainant visited the opposite party regularly   on 10-02-1993,18-09-1993,21-12-1993, 9-07-1994,16-07-1994 and 28-07-1994.In the light of the findings on the overleaf of the prescription dated 13-04-1992 where the opposite party had prescribed three tablets and Deca Kanty injection, and the pleading in the statement of the opposite party in paragraph 6(b) of the counter affidavit of the opposite party that the complainant visited him on 10-02-1993,  the contention of the learned counsel that the complainant was negligent in attending for review and he turned up only on 18-09-1993 does not hold water and devoid of any merit.

12.    The opposite party has not filed the case sheet and not explained any reason for not filing the same. The case sheet is in possession of the opposite party. A mere allegation in the counter does not take place of proof. The opposite party has failed to bring on the record even the operation notes. The District Forum has rightly held that the allegation of the opposite party that the complainant remained an allegation as there is no document on the record nor any endorsement to the effect in the prescriptions issued by the opposite party as also absence of any cross examination of the complainant. The onus of proof shifted on to the opposite  party in the light of his statement that owing to the negligence of the complainant, non union of fracture happened and that he had exercised due diligence in revering treatment to the complainant. The opposite party has failed to state “whether any alternative method was attempted for achieving fracture union and consolidation of fracture” as opined by the professor and head of department of orthopedics, Osmania Medical College.

13.    The opposite party has raised mutually contradictory pleas that the complainant visited him on 9-07-2004 with relief of pain at fracture site and hip region and insisted on removal of the nail as it was causing pain at hip region and superstition does not permit the nail which is a foreign body to remain in his body for long. Projecting these pleas, the opposite party proceeded to remove the nail on the basis of his conclusion that the X-ray confirmed of strong and solid union of the fracture site and riding on the customary belief that nail if left for one or two years causing pain at buttock region of the patient need be removed. In the backdrop of this scenario, it is pertinent to note the observation made by the opposite party in paragraph 7(c) of his counter that “Here the nail is removed on 9-07-1994 nearly after two years of period the patient stayed in the hospital for one week and went home happily with the proper advice of taking bed rest for six weeks and using hand stick for later period of development. He was seen in our nursing home on 28-07-1994. This was his last visit to the hospital of opposite party. He was perfectly alright even at the last visit and was not advised any surgery or expressed any doubt about the fracture union”.  Request for removal of the nail on the premise of superstition is antithesis of the request made for removal of the nail owing to the pain at buttock region of the complainant.

14.    The evidence of PW2 introduces the theory of refracture in contradistinction to his diagnosis and treatment of the complainant. In his cross examination PW2 has stated that the complainant approached him on 25-01-2005 and after going through the X-ray taken on the same day, he found that the nail was removed and the fracture was non –union and at this stage he introduces the theory of refracture by stating as “ After removal of the nail to the fracture after union of the bone, there is possibility of refracture due to minimum valance by walking or other wise to the leg”. In contradistinction to the refracture theory, PW2 stated that the nail has to be removed if it is bent causing pain to the patient. Such inconsistency and variation in the statements of the opposite party and the doctors including PW2, apart form failure of the opposite party to prove his contention, would support the contention of the complainant that the opposite party rendered deficient service to him.

15.    The patient had undergone operation for two times in the hospital of the opposite party and subsequently in the Challa Hospital for the third time and he claimed for refund of `60,000/- and the expenditure of `20,000/- for traveling charges besides a sum of `.2 lakh towards compensation. The District Forum has awarded `50,000/- towards medicine and operation charges and `50,000/- towards compensation for suffering with a rider that in default to pay the amount the opposite party  was directed to pay interest @9%p.a. from the date of filing of the complaint. The learned counsel for the opposite party has contended that calculation made in ExA13 is incorrect since the amount paid towards advance `5,376/- was not deducted from the total bill of `13,876/- and in such case the amount comes to Rs.5,376/-and that the amount claimed towards medical charges is not supported by bills.ExA10 is the cash bill for Rs.155/- of the Residency Medical Hall, Hyderabad  and ExA11 and 12 are the receipts issued by Challa Nursing Home for `105/- and `100/- respectively and Ex.A13 is the particulars of expenditure prepared by the complainant for `14,660/-. The opposite party has not disputed the amount of `60,000/- stated to have been paid by the complainant. The amount of `25,000/- claimed as transportation charges is not supported by any evidence. Taking in to consideration of these facts, we are inclined to restrict the consolidated amount ofRs.1 lakh awarded by the district Forum  to `60,000/-. The rest of the relief in  the impugned order  does not require any interference.

16.    In the result, the appeal is allowed. The Order dated 25-01-2008 is modified. The opposite party directed to pay a sum of Rs.60,000/- together with costs of Rs.2,000/- to the complainant within four weeks from the date of receipt of the order and in default to comply the order, the opposite party shall pay interest @9%p.a. from the date of filing of the complaint till payment. No order as to costs in the appeal

                                                                                  Sd/-

                                                                                MEMBER    

                                                                                   Sd/-

                                                                                MEMBER

                                                                             Dt.16.11.2010

KMK*