By Smt. C.S. Sulekha Beevi, President,

1. It is the say of complainant that she sustained injury to her elbow on 08-11-2001 and was taken to the private consultation place of opposite party doctor. Opposite party advised her to take X-ray and after examining the X-ray opposite party opined that there was fracture. On the same day opposite party applied bandage, prescribed medicines and instructed her to come after 4 days to his residence for applying plaster. That she paid Rs.100/- as consultation fees and incurred expenses of Rs.600/- for bandage and necessary items. On 13-11-2001 she approached opposite party doctor at his residence from where plaster cast was applied. She again paid consultation fees of Rs.100/- and also incurred expenses of Rs.650/- towards plaster and other items. It is her case that after applying plaster she experienced severe pain and swelling on the hand. She consulted opposite party the next day itself and opposite party prescribed medicines. Due to pain and swelling she consulted opposite party several times for which opposite party prescribed medicines. On 07-12-2001 again when she consulted opposite party she was told that there was no problem and that she need come again only for removal of plaster. On 18-12-2001 she approached opposite party who cut and removed the plaster. Even at that time there was pain and swelling and that the hand was bend at the site of fracture. Opposite party advised to do work by moving the hand well and that everything would be cured gradually. She paid fees of Rs.100/-. X-ray was taken again on advise of opposite party when she approached opposite party with complaint of pain. After examining the X-ray opposite party said that there was no problem at all. She did not have any relief of pain and so went to Baby Memorial Hospital. She was told from this hospital that the complication was due to the defect in applying plaster earlier. Though she got admitted for surgery at this hospital on 20-12-2001, she was discharged on 21-12-2001 itself without doing surgery due to the delay in remitting charges. On 22-12-2001 she consulted Dr. Sathyapal of Tirur who referred her to Al-shifa Hospital, Perintalmanna. Two operations were conducted from this hospital for which she incurred expenses of Rs.20,000/- in the hospital and Rs.22,000/- by way of other expenses. She had to be admitted for 11 days. Hence this complaint alleging deficiency in service against opposite party. Complainant claims (i) refund of the fees paid to opposite party (ii) Rs.50,000/- towards expenses incurred for treatment and (iii) Rs.1,00,000/- as compensation.

2. Opposite party filed version disputing the complainant to be a consumer. It is stated that opposite party is an orthopaedician and was working as Assistant Surgeon and Resident Medical Officer (R.M.O) at Taluk Government Hospital, Tirur. That being Resident Medical Officer he used to stay in the R.M.O. Quarters from morning till night. It is submitted that on 08-11-2001 complainant came to the casualty department of the said Government hospital in the afternoon. She was registered as out patient No.13890 in the casualty register. She was examined by the duty doctor in the casualty and then referred to opposite party. That complainant was first examined by opposite party at the R.M.O. Quarters, as part of his official duty because he was on 24 hours on call duty. After examining her opposite party advised to take X-ray. That on seeing the x-ray opposite party diagonized it as galeazzil fracture. It is further submitted that no fees was collected from complainant for the treatment. It is the case of opposite party that he explained to complainant that the modern treatment for the type of fracture sustained by the complainant is open reduction and fixation with plate and screw. That she also informed her that such treatment is not available in the Taluk Government Hospital, Tirur and that it can be done free of cost at the Government Medical College, Kozhikkode. That he gave the complainant a reference letter to this Medical College. That on the same day opposite party put slab on her hand from the casualty of government Hospital. It is the case of opposite party that on 13-11-2001 complainant approached him saying that it is not possible for her to go to Medical College and requested to give her whatever treatment is available at the government Hospital, Tirur. It is stated that opposite party explained to her the pros and cons of the conservative treatment. That on such request by complainant opposite party applied plaster cast upon her hand from the Government Hospital. That she was advised to maintain the plaster for 8 weeks. Opposite party states that no fees was collected by him and that the allegation that opposite party applied the plaster from his residence is denied as false. Opposite party contends that it is impossible to apply POP by an orthopaedecian all by himself without the help of a experienced nursing assistant. Opposite party denies that complainant had approached him on several dates thereafter with complaint of pain and swelling. That it is totally impossible to have the hand in plaster for five weeks as averred if there was pain and swelling as alleged by the complainant. Opposite party submits that complainant had come only after five weeks requesting to cut and remove the plaster. Opposite party advised that POP has to be maintained for 8 weeks for proper result for the treatment. That complainant has not approached opposite party for removal of plaster after 18-12-2001. Opposite party alleges that complainant has cut and removed the plaster from elsewhere before 8 weeks and has not followed his advice. That malunion/non-union if any was only due to the act of complainant herself. That there was no medical deficiency on the part of opposite party and that complainant is not entitled to any reliefs.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and another witness on the side of complainant who was examined as PW2. Exts.A1 to A6 marked on the side of complainant. Opposite party was examined as DW1. No documents marked for opposite party.

4. At the outset it has to be stated that the complainant herein has submitted her complaint before the “Malappuram Jilla Upaboktru Samrakshana Samithi' who has forwarded the said complaint to this Forum along with their covering letter. As such the complaint is addressed in it's cause title tot he above Samithi and not to this Forum. However, we do not consider to deprive the complainant a chance to agitate her grievance by merely holding on to technicalities. Therefore we proceed to analyse the case before us.

5. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite party has committed any medical deficiency in service.

(iii) If so, reliefs and costs.

6. Point (i):-

To avoid repetition the facts are not narrated again. Opposite party has vehemently disputed the complainant to be a consumer. It is his case that the entire consultation and treatment was done at Taluk Government hospital, Tirur while he was working as Assistant Surgeon cum Resident Medical Officer in the said hospital and that he has not collected any fees from the complainant. He has specifically pleaded and affirmed that complainant had registered herself as out patient No.13890 as per the casualty register maintained in the said hospital.

7. According to complainant she consulted opposite party at his private consultation room first and later at his residence. It is also her case that she paid consultation fees on these occasions. Complainant relied on Ext.A5 which is a prescription issued to one Bushara. Ext.A5 bears the private consultation address of opposite party. But on perusal of Ext.A1 which is the prescription issued by opposite party to complainant this address is not seen stated. Apart from her own evidence no other evidence has been tendered by complainant to support her contention though she has stated that she was accompanied by her husband and brother. On application filed by the complainant the casualty register of Tirur Taluk Government Hospital for the period 21-9-2001 to 12-12-2001 was called for and produced before the Forum. In page 80 of this register which is Ext.A6 (a) it is seen entered as follows:

'Sl.No.13890 – Sainaba - 46 years – Orthoconsultation – Out patient'

This register therefore corroborates the consistent case put forward by opposite party. It was submitted by the counsel for complainant Sri.Sadik Naduthodi that there is overwriting upon t he entry of age of the patient noted in Ext.A6(a) and that for this reason Ext.A6 cannot be relied at all. We have perused the whole register carefully. This register is a note book maintained in the form of a register. The pages are serially numbered. The serial number of patients registered are entered in correct order. The register is definitely maintained in proper order. We see a very slight over writing in the entry of the age of the patient (13890) in Ext.A6(a). On examination of the whole register there are corrections and over writings in the register in some places which appear to be only ordinary. There is nothing which arouses suspicion. In our view the very slight overwriting in the entry of age in Ext.A6(a) does not call for any doubt and we hold that this register which is maintained in the office of a government hospital as part of it's functions is reliable. From Ext.A6 it is very clear that complainant had consulted opposite party on 08-11-2001 at Government hospital as out patient. So the case put forward by opposite party that treatment was rendered to her at the Government hospital and that no fees was collected from her is more probable and true. When the service is availed free of charges the complainant does not fall within the ambit of the definition of consumer. Counsel for opposite party relied upon the decision rendered in 2007(1) CPR 512 (NC) Smt. Bitoni Vs. Dr. Satya Narian Chawhan where it is held that when treatment was given free of charge in government hospital the doctor cannot be held liable. This decision is squarely applicable to the facts of this case. From the above discussions we hold that the complainant is not a consumer. Point found against complainant.

8. Point (ii):-

Even then proceeding to analyse the merits of the case, the allegation of medical negligence levelled against opposite party is as follows:-

(i) That opposite party did not render proper treatment and due to his negligence in treating the fracture it resulted in malunion.

(ii) That due to this complainant had to undergo further surgeries at Al-Shifa hospital for which she incurred additional expenses and had to undergo much pain and inconveniences.

Against this opposite party has submitted that complainant was sufficiently advised that the best and modern method for treating galeazzi fracture is by internal fixation of plate and screw by conduct of surgery and that he had also given her a reference letter to Government Medical College, Kozhikkdoe from where such treatment could be done free of cost. It is his say that after 4 days complainant approached him requesting to do whatever treatment that was available at Taluk Government Hospital. That therefore on 13-11-2001 he applied plaster on her hand at the Government Hospital which is treatment by conservative method. That he had advised her to maintain the plaster for 8 weeks. It is vehemently contended by opposite party that complainant did not follow his advice and has had the plaster cut and removed from elsewhere before 8 weeks.

9. It is the case of complainant that opposite party cut and removed her plaster on 18-12-2001. A bare perusal of Ext.A1 would show that this contention is totally false. In Ext.A1 on 18-12-2001 opposite party has prescribed a medicine and has written ROP-23/12/2001. This means opposite party had advised complainant to come for removal of plaster on 23-12-2001. Opposite party has stated that complainant did not approach him after 18-12-2001. So the case of opposite party that complainant did not follow his advice and abandoned his treatment is totally true. According to complainant on 20-12-2001 she went to Baby Memorial Hospital and later on 22-12-2001 she consulted Dr. Sathyapal. It is not unusual that some patients who are impatient do not take the advice of doctors seriously and act against his advice expecting instantaneous relief. We consider that the decision in Munni Devi Vs. Dr. R.P. Tandon 2007 CTJ 23 (CP) NCDRC decided on 06-9-2006 is significant and applicable to this case. There it was held,

“If a patient does not adhere to the advice of the doctor, does not appear for timely check up and voluntarily abandons his services, he cannot turn around and say that the doctor was deficient.”

10. In the present case opposite party has applied the conservative method of treatment. Later by undergoing modern method of treatment under the care of PW2 she was cured. The evidence of PW2 who is an orthopaedician and the doctor who has subsequently treated and cured the complainant is noteworthy. PW2 has deposed in cross as under:

“I would agree that conservative method of treatment was also opted for the management of Galeazis fracture earlier. There are certainly possibilities of complication even during careful management of fracture. I would agree that not only in conservative treatment but in Surgical treatment also complications are possible. I agree that delayed union, non-union and malunion are the main complication expected in the fracture management. Ortho-medical text books mention complications in fracture management. Even if treatment modalities are under stringent control complications may happen. I agree that doctors' managing fractures are not in a position to prevent all complications in fracture.”

Further there has been very less challenge on the issue of medical negligence/treatment rendered while cross examining opposite party (DW1). Nothing material reflecting allegation of negligence is brought out in the evidence tendered by DW1.

11. It may be mentioned that the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab 2005 CTJ 1085 (SC)(CP) has held,

“A Simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”

It is also observed by the Apex Court in 2009 CTJ 472 SC(CP) Ms. Ins. Malhotra Vs. Dr. A. Kriplani & Others decided on 24-3-2009 as under:

“For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Therefore, the actual blame for the outcome has to be attributed with great caution.”

12. In the light of the propositions of law settled in the above cited judgments, in our view both on facts and in law no case is made out by the complainant against the opposite party. Complainant has failed to prove that there was any medical deficiency on the part of opposite party.

13. From the foregoing discussions we dismiss the complaint. We make no order as to costs.

Dated this 10th day of June, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1, PW2

PW1 : Sainabha, Complainant.

PW2 : Dr. E.G. Mohankumar, Witness.

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Photo copy of the prescription dated, 08-11-2001 by opposite party

to complainant.

Ext.A2 series : Photo copy of the request for x-ray and bills (5 Nos.)

Ext.A3 : Photo copy of the receipts (19 Nos.) from Al-shifa Hospital (P) Ltd.

to complainant.

Ext.A4 : Photo copy of the case sheet in respect of complainant from Al-Shifa

Hospital Pvt. Ltd., Perintalmanna.

Ext.A5 : Prescription dated, 18-4-2003 by opposite party.

Ext.A6 : Photo copy of the casualty register of Govt. Taluk Hospital, Tirur

w.e.f. 21-9-2001 to 12-12-2001.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. P. Vijaya Gopal, Opposite party.

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER