IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTADated this the 16rd day of June, 2010.Present : Sri. Jacob Stephen (President)Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) O.P. No. 149/02 (Filed on 25.06.2002) Between: Chellappan Nair. N.C., @Omanakuttan Neelamplackal, Neelamplavil Parambil House, Poovathoor, Varayannoor P.O., Pullad. (By Adv. Rajendra Das) .... Complainant. And: 1. Poyanil Hospital, P.B. No.15, Kozhencherry, represented by its Managing Director, Dr. Joseph George. (By Adv.G.M. Idiculla) 2. Dr. Abraham. P. Sam, Orthopaedic Surgeon, Poyanil Hospital, P.B. No.15, Kozhencherry. (By Adv. P.K. Mathew) Addl.3.The Branch Manager, The National Insurance Co. Ltd., Branch Office, Kallumkathara- Buildings, Pathanamthitta. (By Adv. Sam Koshy) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant had filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case is that he is a Plumber by profession and he fell down from a stool on 14.08.2000 at about 1 p.m. while he was doing plumbing works. Immediately he was taken to the first opposite party hospital with complaints for severe pain and swelling at the elbow, forearm and wrist of left upper limb. Supportive treatments were given by the Casualty Medical Officer and he was admitted there. Fracture on left radius was diagnosed. The second opposite party examined the complainant and advised surgery for internal fixation of a metal implant to hold together the fractured bone and for re-union and the complainant consented for the surgery. Accordingly, the second opposite party done the surgery and internal fixation on 16.08.2000 and discharged on 21.08.2000. Outpatient treatments were continued as per the direction and advice of the second opposite party. The second opposite party always prescribed some antibiotics to the complainant who is suffering from severe pain and the second opposite party made the complainant to believe that he will be recovered within few months. But the condition of the complainant worsened progressively. The complainant consulted Dr. P. Asokan, Orthopaedic Surgeon of Medical College Hospital, Kottayam who opined that internal fixation done by the second opposite party was not proper and a fresh surgery is required as the operated portion was infected. 3. Thereafter the complainant consulted Dr. K.V. Menon of Amrita Institute of Medical Science & Research Centre, Kochi where X-ray was taken and found that the earlier internal fixation was not proper. The complainant was admitted there on 15.04.2001 and successfully treated there with surgery and he was discharged on 27.04.2001. Due to the delinquency, negligence and irresponsibility of the second opposite party, the life of the complainant become jeopardised and the opposite parties are liable to the complainant for their negligence and deficiency in service. Hence, this complaint for the realisation of Rs.3 lakhs from the opposite parties under different heads. 4. The first opposite party filed a version with the following main contentions. The first opposite party admitted that the second opposite party is an Orthopaedic Surgeon in their Orthopaedic Department. The first opposite party hospital is a Speciality Hospital with all modern facility for doing orthopaedic and other surgery. There is no latches in giving the treatment to the complainant on the part of the first opposite party and the first opposite party has no role in the treatment other than giving the best facility to the second opposite party for his treatment. The first opposite party hospital is insured with National Insurance Company Ltd. and the policy was valid during the period of the complainant’s treatment. The version of the second opposite party regarding treatment of the complainant may also be considered as the part of the first opposite party’s version. With the above contentions, they pray for exonerating them from the liability. 5. The second opposite party filed his version with the following contentions: The second opposite party admitted the treatment of the complainant. Clinical and radiological examination revealed fracture of left radius and left scaphoid and dislocation of radio humerical joint. Dislocation was attended immediately and the dislocation was reduced and the limb immobilized to alleviate pain and to reduce swelling. The fracture scaphoid needed only POP immobilization and the fracture of the radius needed open reduction and internal fixation (ORIF) and the complainant was informed accordingly. Risk of anaesthesia and surgery, the common complications of ORIF was explained to the complainant and other near relatives. All necessary investigations and pre-operative assessment by anaesthesia were done and prepared for the surgery after obtaining consent from the commplainant. Required medicines were given before surgery. On 16.08.2000, under all aseptic precautions with utmost care and caution, ORIF was done with D.C. plate under brachial block anaesthesia in Orthopaedic Operation Theatre. The intra operative period was uneventful. Post operatively POP immobilization was done. Antibiotic was continued and other supportive medicines were given. Check X-ray taken on 18.08.2000 showed good position. The post operative period was uneventful and the complainant was discharged on 21.08.2000 after proper examination of the operated site which was found to be clean and dry. 6. At the time of discharge, he was advised to come for review after 3 days. But he reported only after 10 days i.e.on 30.08.2000. Sutures were removed and dressing was done. The operated site was dry and clean. The complainant was advised for further review after 5 days. But he reported after a fortnight on 20.09.2000. The operated site was inspected and was found normal. On 22.09.2000, there was minimal sign of inflammation of the operated site, which was cleaned and dressed. Appropriate antibiotic was started immediately. Since the operated site did not show improvement, exploration and debridement under anaesthesia was advised on 09.10.2000, but he was not willing for the procedure. On 16.10.2000, collection of fluid at the operated site was let out and was taken for culture and sensitivity. The same antibiotic was continued. As this also did not show marked improvements, thorough debridement and further surgical procedures were advised repeatedly to the complainant. On 06.11.2000, a repeat X-ray was taken and again the complainant was advised to undergo debridement, which was refused by the complainant. The complainant wanted to consult elsewhere. So all the X-rays, ECG and a treatment summary were given to the complainant on 06.11.2000. Afterwards, the complainant did not consult the second opposite party. The complainant was given proper treatment and proper advice till 06.11.2000 warranted for the complainant’s ailments. But the complainant refused the bonafide advice given by the second opposite party. Hence there is no negligence or deficiency in service on the part of the second opposite party. Surgical intervention was also advised by Dr. Asokan also But the surgery was done only on 16.04.2001 at Amrita Institute of Medical Science and Research Centre, Kochi. 7. If the complainant was willing to accept the bonafide advice of the second opposite party, the delay in effective treatment could have been avoided. The complainant was not available and even not co-operated with the treatments and surgical interventions offered by the opposite parties. Hence, the complainant himself was rash and negligent in the treatment and careless in following the instructions given by the second opposite party. All procedures followed was strictly adhering the accepted medical practices. The second opposite party is possessing a good reputation in his carrier. The second opposite party can be held liable guilty only when he had found short of reasonable medical care and skill expected from a professional. The complainant has to prove that his complication was the direct result of an apparent negligent act of the second opposite party and also he has to prove that there is other procedures and normal practices which was applicable to the complainant’s case and the second opposite party has not opted that practice and the course taken by the opposite party was one which no professional man of ordinary skill would have taken. In short, the procedure followed by the second opposite party is only an accepted medical practice, which is accepted and followed by the medical fraternity. Above of all, the second opposite party is an employee of the first opposite party and the first opposite party is insured with the third additional opposite party and if at all any negligence is found against the opposite parties, the third additional opposite party is liable to compensate the complainant. With the above contentions, the second opposite party prays for the dismissal of the complaint with his cost. 8. The version of the additional 3rd opposite party is as follows: The additional third opposite party admitted the issuance of the policy and its validity. On getting the notice of this Forum, the additional third opposite party called upon the hospital management to furnish the details of the treatment given to the complainant and on scrutinisation, it is understood that the claim against the additional third opposite party is not tenable. It is also revealed that the complainant was not in the habit of following medical advice and he refused to co-operate with the advice of the second opposite party and he was bent upon to consult elsewhere. Ultimately, he was discharged and furnished with the treatment records and discharge summary. Afterwards, he was never treated at the opposite party’s hospital. The minimal sign of inflammation was properly diagnosed by the second opposite party and relative treatment was started immediately. The further treatment was disrupted since the complainant opted to undergo treatment elsewhere and as such any complications, which persisted after the discharge from the opposite party’s hospital cannot be mulcted upon them. No negligence or wrong diagnosis can be attributed against the opposite parties 1 and 2 . The averments in the complaint would reveal that the complainant is aiming at getting reimbursement of the entire medical expenses incurred in his treatment. In the absence of any negligence from the part of the first and second opposite parties, this opposite party is not liable to the complainant. With the above contentions, the additional third opposite party also prays for the dismissal of the complaint with their cost. 9. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not? 10. The evidence of this complaint consists of the oral testimony of PWs.1 and 2, DWs.1 to 3 and Exts.A1 to A9 and Exts.B1 and B2. After closure of evidence, both sides were heard. 11. The Point: The complainant’s allegation against the opposite parties is that due to the negligent treatment of the second opposite party, the complainant had developed complications to his injuries. The said complications were corrected by the treatment of Amrita Institute of Medical Science & Research, Kochi. As a result of the negligence of the second opposite party, the complainant had sustained mental agony and financial loss and the opposite parties are liable for the same. 12. In order to prove the complainant’s case, he filed a proof affidavit narrating his case and on the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A9. One witness (an Orthopaedic Consultant) who had treated the complainant at Amrita Institute of Medical Science & Research Centre from 15.04.2001 to 27.04.2001 was also examined as PW2 from the side of the complainant. PWs.1 and 2 were cross-examined by the learned counsel for the opposite parties. 13. Ext.A1 is the O.P. card issued by the opposite party in the name of the complainant. Ext.A2 series are the medical bills of the complainant in connection with the treatment at Poyanil Hospital and at Amrita Hospital. Ext.A3 is a prescription note dated 10.11.2000 issued by Dr. P. Asokan, Asst. Prof. of Orthopaedics, Medical College, Kottayam in the name of the complainant. Ext.A4 is a lab report dated 07.11.2000 issued from Modern Diagnostic Services, Kottayam in the name of the complainant. Ext.A5 is the Discharge Summary dated 27.04.2001 issued from Amrita Institute of Medical Science & Research Centre, Kochi in respect of the treatment of the complainant. Ext.A6 is the photocopy of the Advocate Notice dated nil issued to the first and second opposite parties by the complainant. Ext.A7 is the reply letter dated 20.10.2001 sent by the first opposite party to Ext.A6 notice. Ext.A8 is the reply letter dated 20.10.2001 sent by the second opposite party to Ext.A6 notice. Ext.A9 is a statement submitted by the counsel for the complainant showing the details of medical bills in connection with the treatment of the complainant. 14. On the other hand, the contention of the opposite parties is that they have not committed any negligence in the treatment of the complainant. What all treatments given to the complainant is accepted by the medical science and was given under all aseptic precautions with utmost care and caution and are warranted in the circumstances. On 16.08.2000, under all aseptic precautions with utmost care and caution, ORIF with D.C. plate was done under anaesthesia and both pre-operative and post operative period was uneventful and post operatively immobilisation was done. X-ray taken on 18.08.2000 so good position and he was discharged on 21.08.2000 after proper examination of operation which was found clean and dry. He was advised to come for review after three days, but he had reported only on 30.08.2000. Further review advised after 5 days. But he had reported only on 20.09.2000. The operated site was inspected and was found normal. But on 22.09.2000, when the complainant came for review, the operated site showed minimal sign of inflammation. It was cleaned and dressed. Antibiotic was started. The complainant had dressings in the Out Patient Department. The operated site did not show improvement. So he was advised for further exploration and debridement under anaesthesia. But he was not willing for the procedure. On 16.10.2000, collection of fluid at the operated site was taken for culture and sensitivity and on the basis of the report from the lab; thorough debridement and further surgical procedures were advised. But he refused and went for treatment elsewhere. So the discharge summary and other treatment records were given to the complainant on 06.11.2000 as per his request. 15. Though he had collected the medical records on 06.11.2000, he had attended at the Amrita Institute of Medical Science & Research Centre, Kochi only on 15.04.2001, which shows effective surgical intervention was on 16.04.2001. There is an inordinate delay for further surgical intervention and the said delay resulted in further complications to the complainant. If the complainant accepted the timely advice of the second opposite party, the delay caused for further surgical intervention could have been avoided. Before completing the treatment of the opposite parties, the complainant had neglected the advice of the second opposite party. The complainant opted further treatment elsewhere and again he started treatment after a laps of about 6 months. If the complainant had opted continuous treatment, he would not have caused such complications. Such complications are occurred solely due to the negligence of the complainant and he himself is responsible for the same and the opposite parties are not liable for the said complications. 16. In order to prove the contention of the opposite parties, the second opposite party filed a proof affidavit and on the basis of the proof affidavit, he was examined as DW1. The Managing Director of the first opposite party hospital and the Principal of Pushpagiri Medical College, Thiruvalla were also examined as DWs.2 and 3 for the opposite parties. The documents produced from the side of the opposite parties were marked as Exts.B1 and B2. Ext.B1 is the Patient’s Record File in respect of the treatment of the complainant at the first opposite party hospital. Ext.B1(a) is the relevant portion of Ext.B1 showing that the patient was not willing for the advice for exploration and debridement. Ext.B1(b) is the relevant portion of Ext.B1 showing that the X-ray and ECG etc. was given to the complainant as per his request. Ext.B1(c) is the relevant portion of Ext.B1 showing that the complainant had consulted the second opposite party on 06.11.2000. 17. The additional 3rd opposite party also filed a proof affidavit stating that the first opposite party hospital was insured with them. The relevant policy certificate produced is marked as Ext.B2 on the basis of the proof affidavit of the third additional opposite party. 18. On the basis of the contentions of the parties, we have gone through the entire materials on record. The materials on record shows that the complainant was treated by the second opposite party at the first opposite party’s hospital from 14.08.2000 to 06.11.2000 as inpatient and outpatient. The complainant’s allegation is that the complication caused to the complainant was due to the negligent and unwarranted treatment of the opposite parties. The contentions of the opposite parties is that till 06.11.2000, the last date on which the complainant came to the opposite party’s hospital for consulting; the complainant had no serious complications. What all complications developed to the complainant was not due to the negligence of the opposite parties, but due to the neglect of the advice given by the opposite parties and due to the absence of a continuous treatment for a long period. Ext.A5 discharge summary of Amrita Institute of Medical Science & Research Centre shows that the complainant was admitted at that hospital only on 15.04.2001 whereas Ext.B1 series shows that the complainant had left from the opposite party’s hospital on 06.11.2000. There is no evidence from the part of the complainant to show that he had undergone treatment in between 06.11.2000 to 15.04.2001. As per the deposition of complainant/PW1 and as per Ext.B1 documents, it is seen that the second opposite party had given advice for further surgery and treatment to the complainant. But he neglected the advice and discontinued the treatment for a long period till 15.04.2001. The aforesaid facts shows that the complainant had not undergone any treatment from anywhere in between 06.11.2000 and 15.04.2001. This is against the advice given by the second opposite party. So the argument of the opposite parties that any complications developed to the complainant’s injury was due to the neglect of the advice of the second opposite party and the complainant’s negligence in continuing the treatment and the treatment procedure adopted by the second opposite party is well accepted method of treatment cannot be discarded. The oral testimony of PW2 and DW3, experts in the field of orthopaedic also supports the contentions of the opposite parties. PW2 in cross-examination deposed as follows:- “BZyw NnIn¨ Bip]{Xn¡m/span> discharge sN¿p¶ kabw \ÂIp¶ \n±i§]men¡mXncp¶m PW1/span> I complications DmImw...............BZy NnIn\ÂInb Bip]{Xnbnse NnInv¡ptijw XpSNnInAhcpsS \n±i {]Imcw \S¯mXncp¶Xn\ptijamWv Fsâ ASp¡Â h¶ncp¶sX¦n Rm³ I complications DmImhp¶XmWv..................... PW1/span>\v DmbXmbn ]dbp¶ fracturev open reduction and internal fixationWv km[mcWbmbn \ÂIp¶ NnIn#8221;. 19. The relevant portion of the deposition of DW3 is as follows: “It is routine treatment for the fracture and I don’t think any negligence and reasonable care has been taken in the treatment of the patient”. The said statement was made by DW3 after verifying Ext.B1 treatment records. In cross-examination, he deposed as follows: “Procedure adopted by opposite party doctor for the said operation is a well accepted method of treatment. As per Ext.B1 second opposite party doctor conducted utmost care and caution in this case. I have conducted more than 10000 operations like this”. We find no reason to discard the opinions given by PW2 and DW3. The complainant also failed to prove that he had observed the direction and advice of second opposite party and had undergone treatment from 06.11.2000 to 15.04.2001. In the circumstance, we find no deficiency of service from the part of the first and second opposite parties. In view of the above findings, the additional third opposite party is also not liable to the complainant. Therefore, this complaint is not allowable and is liable to be dismissed. 20. In the result, this complaint is dismissed. No cost. Pronounced in the Open Forum on this the 16th day of June, 2010. (Sd/-) Jacob Stephen, (President) : (Sd/-) Sri. N. Premkumar(Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Chellappan Nair. PW2 : Dr. K. Venugopal Menon. Exhibits marked on the side of the complainant: A1 : O.P. card issued by the opposite party in the name of the complainant. A2 series: Medical bills of the complainant in connection with the treatment at Poyanil Hospital and Amrita Hospital. A3 : Prescription note dated 10.11.2000 issued by Dr. P. Asokan, Asst. Prof. of Orthopaedics, Medical College, Kottayam. A4 : Lab report dated 07.11.2000 issued from Modern Diagnostic Services, Kottayam to the complainant. A5 : Discharge Summary dated 27.04.2001 issued from Amrita Institute of Medical Science & Research Centre, Kochi in respect of the treatment of the complainant. A6 : Photocopy of the Advocate Notice dated nil issued to the first and second opposite parties by the complainant. A7 : Reply letter dated 20.10.2001 sent by the first opposite party to Ext.A6 Advocate Notice. A8 : Reply letter dated 20.10.2001 sent by the second opposite party to Ext.A6 notice. A9 : Statement submitted by the counsel for the complainant in connection with the treatment of the complainant. Witness examined on the side of the opposite parties: DW1 : Dr. Abraham.P.Sam. DW2 : Dr. Joseph George. DW3 : Dr. Abraham Jose. Exhibits marked on the side of the opposite parties: B1 : Patient’s Record File in respect of the treatment of the complainant at the first opposite party hospital. B1(a) : Relevant portion of Ext.B1 Patient’s Record File. B1(b) : Relevant portion of Ext.B1 Patient’s Record File. B1(c) : Relevant portion of Ext.B1 Patient’s Record File. B2 : Policy certificate issued by National Insurance Company Ltd. to the first opposite party hospital. (By Order) Senior Superintendent. Copy to:- (1) Chellappan Nair. N.C., @Omanakuttan Neelamplackal, Neelamplavil Parambil House, Poovathoor, Varayannoor P.O., Pullad. (2) Dr. Joseph George, Managing Director, Poyanil Hospital, P.B. No.15, Kozhencherry, (3) Dr. Abraham. P. Sam, Orthopaedic Surgeon, Poyanil Hospital, P.B. No.15, Kozhencherry. (4) The Branch Manager, The National Insurance Co. Ltd., Branch Office, Kallumkathara Buildings, Pathanamthitta. (5) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
