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

This is a complaint alleging medical negligence.

Facts:

1. Complainant is a businessman residing at Doha for his business purpose. While at Doha he had severe tooth ache and noticed problems to 7^th and 8^th lower molars. It is stated that opposite party hospital had good reputation, especially in Gulf countries and so desiring to get better treatment and speedy recovery he decided to come to Kerala and take treatment at opposite party hospital. He wanted to return to Doha after treatment, as early as possible, as his absence was likely to affect his business at Doha. On 18-8-2008 he came by flight to Kerala for the sole purpose of availing treatment at opposite party hospital. He was examined by doctors at opposite party hospital and was then directed to O.F.M.S. Department of the hospital. He was admitted as inpatient on 19-8-2008, and was examined by second opposite party doctor. After investigations second opposite party doctor told him that his lower 7^th molar was decayed and 8^th molar was impacted. That both teeth were beyond repair and have to be removed. That second opposite party doctor told him it was a simple case of tooth extraction and that he will be able to leave the hospital the next day itself. Doctor assured that complainant would recover within a week and would be able to return to Doha. On 19-8-2008 he was taken to operation theatre and 7^th and 8^th molars were extracted. It is stated that after surgery second opposite party doctor told him that the surgery was successful and that he will be discharged the next day itself. But that, contrary to this, the complainant experienced severe pain on his jaw. When he informed this to second opposite party, the complainant was told that it was nothing unusual and that the pain will subside within one or two days. On 20-8-2008, the complainant was discharged and he was issued a discharge card. It is stated that at the time of discharge also he told second opposite party doctor about the pain in the mouth that had aggravated and also that he was feeling numbness on his face. Second opposite party doctor then told him that there was nothing to worry. Complainant spend Rs.3,422/- for medicines and treatment. At the time of discharge he paid Rs.3,000/- at the counter towards treatment charges but no receipt was issued to him. After reaching home the complainant experienced severe pain. His face was swollen and there was numbness on the face. There was crackling sound while closing the mouth. He contacted second opposite party through phone who told that there is nothing abnormal and that it would be alright within a few days. Though the complainant enquired whether it is necessary to come and meet the doctor again, he was told that it was not necessary. As the pain and swelling aggravated, complainant decided to postpone his return to Doha. He decided to consult doctors at MIMS (Malabar Institute of Medical Sciences) hospital, Kozhikkode. On 25-9-2008 he approached MIMS hospital and was admitted as inpatient on 26-9-2008. The doctors at MIMS hospital told him that the mandible had been fractured at the left angle while extracting the tooth. That this has happened at opposite party hospital while extraction was done by second opposite party doctor. That second opposite party doctor and doctors at opposite party hospital failed to notice the fracture and have deliberately not told the complainant about the fracture to mandible. A corrective surgery was done at MIMS hospital on 29-9-2008 and he was discharged on 03-10-2008. Complainant spend Rs.64,337/- for treatment at MIMS hospital. He also had to incur expenses for food, conveyance, bystanders etc. At the time of discharge he was advised not to exert pressure to mandible or teeth for the next six months. He still experiences numbness on the face. That the findings of doctors at MIMS hospital reveal that second opposite party doctor was aware of the fracture that occurred to the mandible at the left angle. But that second opposite party doctor kept it as a secret without disclosing it to the complainant. That second opposite party doctor did not mention it in the discharge card also. Complainant requested first opposite party hospital to supply the treatment records. But first opposite party refused to supply the same. On 20-10-2008 the complainant caused a notice through his lawyer. Only after receiving this notice, the case sheet was supplied by the hospital. It is alleged that the entries in the case sheet that complainant left hospital without consent are false. That he had left hospital only after discharge and issuing the discharge card. The original plan of the complainant was to leave for Oman at the end of August, 2008, after completing treatment. But due to deficiency and negligence committed by opposite parties, the complainant had to remain in India till the completion of treatment at MIMS hospital. Complainant had to spend huge amount for the corrective surgery and for hi to and fro travel to Oman and India. That he had come to India only for the purpose of undergoing treatment to his affected teeth. That opposite parties are responsible for the loss and sufferings undergone by him. Hence this complaint. The complainant prays for Rs.3,422/- towards expenses for the treatment at opposite party hospital, Rs.64,337/- towards expenses for the treatment at MIMS hospital, Rs.10,000/- towards conveyance expenses, Rs.32,000/- as expenses for to and fro travel from Doha to Calicut, and Rs.2,50,000/- towards loss incurred in business due to his absence at Doha, along with compensation of Rs.50,000/- towards deficiency.

2. First and second opposite parties have filed separate versions. Opposite parties admit that complainant was admitted as inpatient at opposite party hospital and was treated by second opposite party doctor. It is submitted that opposite parties were never negligent in rendering treatment to the complainant. Reasonable skill and care in diagnosing the disease and administering the treatment was taken by opposite parties to the best of ability, utilising all facilities at opposite party hospital. The treatment was given in accordance with well established procedure by qualified doctors and there was no deficiency. That complainant was never put to physical pain, mental agony or other injuries. That opposite parties are not liable to compensate the complainant jointly or severally.

3. Second opposite party filed version submitting that he is a consultant in maxillofacial surgery working in first opposite party hospital. Complainant was referred to second opposite party doctor on 18-8-2008 from the Endodontics department at first opposite party hospital for extraction of a grossly decayed lower left second and impacted third molar teeth with history of recurrent pain and welling to that region. He was a known case of hypertension, diabetes mellitus with peripheral neuropathy, gallstones and cervical spondylosis. He had also undergone CABG (bye pass surgery of the heart) twice (in 1987 and 2001). Clinical examination revealed, grossly decayed lower left second and impacted third molar teeth with submandibular lymphadenitis. Intra-oral X-ray (IOPA) revealed unfavourable deeply impacted third molar tooth with surrounding sclerotic bone. The tooth was close to the lower border of the mandible and there was loss of alveolar height. Keeping in mind the poor medical history of the patient, extraction of both 2^nd and 3^rd molar teeth were planned under local anesthesia after taking high risk consent. All the possible post-operative complications were explained to the patient. The surgery was done on 19-8-2008 with all necessary precautions in the operation theatre with monitoring of the vital signs. Under adequate antibiotic coverage Intra-oral incision given, mucoperiosteal flap elevated. Since the tooth was deeply impacted, bone surrounding the 3^rd molar tooth was extensively removed along with the sectioning of the tooth. Moreover since one of the root was ankylosed (solid fixation of a tooth) to the bone and the distal bone was sclerotic probably due to the old age and chronic impaction, it resulted in pathologic fracture of the angle of the mandible while elevating the teeth, and both the crowns and root were removed separately. The fracture was immediately managed by transosseous wiring with 26 gauge s-s wiring and a stable occlusion was achieved per-operatively. Decayed 2^nd molar was also extracted by open method. Curettage and irrigation of the socket was done and the flap sutured using 3-0 mersilk. Following surgery patient was advised Inj Ampiclox 500mg 6^th hourly Inj. Diclor 75mg twice daily, Inj Ranitidine 150mg twice daily. His vital parameters were closely monitored. He was advised cold liquid diet. The patient was informed that there was a fracture of the angle of the mandible, which has been immediately corrected and hence advised not to exert pressure on the mandible or teeth. In the evening the patient, complained of slight pain and swelling and hence advised intramuscular Inj. Tremadol 100mg and ice pack. Since hartal was declared in Kerala state on 20-8-2008, the Second opposite party had written the discharge card on 19-8-2008 itself. The second opposite party informed the duty nurse that the discharge card should be handed over to the patient only if the second opposite party is unable to come tot he hospital the next day. Unfortunately the second opposite party could not reach the hospital on time on 20-8-2008 due to the hartal and by the time the second opposite party reached the hospital the patient had left without consent and did not come for further review.

4. The averment in the complaint that opposite party told the complainant that the extraction of tooth is a simple procedure is denied by opposite party. It is stated that Intra-oral X-ray (IOPA) revealed an unfavourable deeply impacted third molar tooth with surrounding sclerotic bone. The tooth was close to the lower border of the mandible and there was loss of alveolar height. Keeping in mind the poor medical history of the patient, extraction of both 2^nd and 3^rd molar teeth were planned under local anesthesia after taking high risk consent. The averment that second opposite party doctor told that the surgery was successful and that he would be discharged the second day is only partially true and hence not admitted. Complainant was explained that the procedure was difficult and that in the course of extraction a fracture to the angle of mandible had occurred. This was immediately corrected by transosseous wiring with 26 gauge s-s wiring and a stable occlusion was achieved per-operatively. As the condition was stable it was planned to discharge him the next day. But complainant left the hospital before second opposite party doctor reached the hospital. He had left without consent and had not met opposite party doctor with aggravated pain, welling or numbness the next day. He did not come for review though he was advised to come for review after a week. It is the responsibility of the patient to come for proper follow up after a surgery. If the complainant had difficulties as alleged in the complaint he would have approached second opposite party doctor or any other doctor much earlier. But the complainant has gone for treatment to MIMS hospital only after 5 weeks. That most probably the complainant had not followed the advice of opposite party not to exert pressure on the mandible and teeth. The averments that opposite party doctor failed to notice the fracture is denied. That fracture was noticed, informed to complainant and managed. He was advised to take cold liquid diet and not to exert pressure. The averments regarding that receipt was not issued for the payment of Rs.3,000/- is not within the purview of second opposite party. That first opposite party hospital always issues receipts for the payments made. The allegation that treatment records were supplied only after receiving lawyer notice is not within the knowledge of second opposite party and hence denied. The other averments regarding the plans of the complainant to immediately return to Doha and about loss of business etc., are specifically denied by opposite party. It is further stated that if the complainant had come for review, the alleged complications could have been managed at first opposite party hospital itself, that too at lower expense. The compensation claimed is exaggerated and without basis. That there is no negligence or deficiency on the part of second opposite party. Being a paid employee under first opposite party principle of vicarious liability is applicable. That complainant is not entitled to any reliefs and that complaint has to be dismissed with compensatory costs.

5. Evidence consists of oral evidence of complainant who was examined as PW1 and Exts.A1 to A9 marked for him. Second opposite party was examined as DW1. No documents marked for second opposite party. In this case the complainant had filed proof affidavit on 06-8-2009. Later a second affidavit with the very same affirmations was filed by him on 26-8-2009, along with I.A.413/2009. He prayed to receive the second affidavit in lieu of chief examination and to discard the proof affidavit filed earlier. It was submitted on his behalf that the affidavit filed earlier was erroneously attested by the counsel and that the complainant on the date of attestation was at Doha. The petition was allowed vide separate order and the second affidavit was received.

6. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

7. The allegations of negligence culled out from the averments, submissions and records placed on behalf of the complainant are as under:

(i) That while extracting the tooth, fracture occurred to the left angle of mandible. That this happened due to negligence on the part of second opposite party doctor in not taking precaution and care while doing extraction. There after complainant had to undergo corrective surgery at MIMS hospital, Kozhikode. Complainant thus had to suffer much pain and hardships. He had to incur huge expenses.

(ii) That second opposite party doctor did not notice the fracture to mandible. The fracture was not disclosed to the complainant and it was not mentioned in the discharge card issued to the complainant. Not disclosing the fracture and non mention of the fracture in the discharge card is deficiency.

(iii) That opposite parties did not supply the treatment records to the complainant when he requested for the same. That opposite parties supplied the treatment records only when complainant issued notice through his lawyer requesting to supply the case sheet. That non supply of treatment records is deficiency in service.

8. Denying the allegations of negligence the sum of the defense submitted on behalf of opposite parties is as under:

(i) The complainant's 2^nd molar was grossly decayed and 3^rd molar was impacted with mandibular lymphadenitis. X-ray revealed unfavourably deeply impacted third molar with sceloritic bone. The tooth was close to the lower border of the mandible and there was loss of alveolar height. Extraction was done in the operation theatre on 19-8-2008 as the complainant was a high risk patient as he had other ailments. As one of the root was ankylosed to the bone, it resulted in pathologic fracture to the left angle of mandible while elevating the teeth. That fracture to mandible in a situation as presented by the complainant's tooth is an accepted and documented complication. That opposite party doctor immediately managed the fracture by trans-osseous wiring with 26 gauge s-s wiring achieving a stable occlusion. That the management of the complication was done as per medical protocol.

(ii) That opposite party doctor had explained the risk to the complainant before surgery and proper consent was taken. The occurrence of the fracture was informed to the patient then and there itself as the complainant was conscious and was under local anesthesia only. He was also explained about the management done. In the evening he complained of pain for which injection was given. That complainant left the hospital without consent. Second opposite party could not examine the complainant on 20-8-2008, as the complainant had left the hospital. Though he was advised to come for review after a week he did not turn up at all. That complainant had approached for further treatment at MIMS only after 34 days. That a patient having severe pain and swelling as alleged in the complaint will not be able to wait for 34 days without treatment. That this would itself show that his allegations that he suffered much pain, swelling and numbness after the surgery is false. Complainant might not have adhered to the advice of opposite party doctor to take cold liquid diet and not to exert pressure on the mandible and teeth.

(iii) That the fracture to mandible and it's management was not noted in the discharge card because second opposite party had not completed the discharge card. That second opposite party did not get an opportunity for final checkup of the complainant and to complete the discharge card accordingly. That treatment records were supplied to the complainant on request made by him through a lawyer. That there is no deficiency.

9. The qualification and experience professed to have been possessed by second opposite party doctor is not disputed by the complainant. Hence this issue does not arise for analysation.

10. The main allegation of negligence assailed against opposite party is that opposite party doctor caused fracture to the mandible while extracting the tooth. It is the case of complainant that opposite party doctor failed to take necessary precaution and has thus caused the fracture. Complainant has not disputed or challenged the method adopted by opposite party doctor for extraction or the treatment administered. There is no evidence adduced before us to show what was the particular precaution that should have been taken by opposite party doctor to prevent the happening of fracture to mandible.

11. According to opposite party the ailment/situation presented by the tooth was such that fracture to mandible can occur while extracting it. Operative findings in Ext.A6 along with a diagram, by the doctor shows the unfavourable, impacted nature of the tooth. Relying upon medical literature it was submitted by opposite party that fracture to mandible while extracting an impacted tooth is accepted complication. The relevant portion in page 71 of 'Killey and Kay's Outline of Oral Surgery' Part one – Indian Edition – 1992 published by Varghese Publishing house, which was relied by opposite party is quoted as under:

“Fracture may occur during removal of a deeply buried tooth or later when the patient starts to chew again. In the former case immobilization is recommended, if necessary with the addition of a transosseous wire. With late undisplaced fractures a soft diet, antibiotics and careful supervision may be sufficient.”

12. The above medical literature establishes the contention of opposite party that occurrence of fracture to mandible is an accepted risk while removing deeply impacted tooth. As there is no expert evidence to rebut this we have to hold that mandible fracture that happened while extraction is not negligence amounting to breach of duty to care.

13. The allegation of the complainant that the doctors at opposite party hospital and second opposite party doctor failed to notice the fracture is per se unsustainable as the treatment records of MIMS hospital reveal that the fracture is seen managed by trans-osseous wiring.

14. The case put forward by the complainant is that after surgery second opposite party doctor assured him that surgery was successful and that the pain after surgery was normal. He alleges that there was severe pain, welling and numbness on the face from the very next day onwards. Admittedly the complainant has approached another doctor, ie., MIMS hospital only after 34 days. No plausible explanation is offered by the complainant why he did not consult any doctor during these days though he had such aggravated pain, welling and numbness as narrated in the complaint and affidavit. Ext.A7 which are the treatment records from MIMS hospital show that the complainant has approached MIMS hospital only on 25-9-2008. It is his case that the fracture was not disclosed to him by second opposite party doctor and that he came to know about it only when the doctors of MIMS hospital told him. This is denied by opposite party doctor who contends that the fracture was disclosed to the complainant at the time of doing the procedure itself as the complainant was conscious and was only under local anesthesia. Operative notes in Ext.A6 case sheet shows that opposite party has entered the occurrence of fracture and it's management by upper border wiring in the case sheet. This was supplied to complainant as reply to the lawyer notice. The deposition of complainant (PW1) in this regard is as under:

“എനിക്ക് നാട്ടില്‍ വരുന്നതിന്ന് ഒരു മാസത്തിനുളളില്‍ ആണ് പല്ലു വേദന തുടങ്ങിയത്. എന്‍െറ വായിലെ 2^nd and 3^rd molar പല്ലിനായിരുന്നു തകരാറ്. (3/7, 3/8 molar) അതില്‍ ഒരു പല്ല് വളരെ ദ്രവിച്ചു നാശമായിരുന്നു എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. മറ്റെ പല്ല് പുറത്തുകാണാതെ മോണയുടെ അകത്തായിരുന്നു എന്നു പറഞ്ഞാല്‍ എനിക്കറിയില്ല. ഞാന്‍ എതൃകക്ഷി ആശുപത്രിയില്‍ വരുന്നതിന്നു മുമ്പ് പല്ലുവേദനക്ക് വേറെ ആശുപത്രിയില്‍ ചികിത്സിച്ചിട്ടില്ല.”

“2- എതൃകക്ഷി എന്‍െറ രോഗം എന്താണെന്നും അതിന്നുളള ചികിത്സ എന്താണെന്നും വിശദീകരിച്ചു തന്നു എന്നു പറഞ്ഞാല്‍ പല്ല് theatre കൊണ്ടു പോയി എടുക്കണം എന്നു പറഞ്ഞു തന്നു. മറ്റു പല രോഗങ്ങളും ഉളള ആളായതിനാലാണ് theatre പോകണം എന്നു പറഞ്ഞത് എന്നു പറഞ്ഞാല്‍ എനിക്ക് വേറെ രോഗങ്ങളുണ്ട്. “

"എന്‍െറ പല്ല് നീക്കം ചെയ്യുന്ന surgery നടത്തിയത് 19-8-2008-ന്ന് ആണ്. ഒരാഴ്ച കഴിഞ്ഞ് വരാന്‍ പറഞ്ഞിരുന്നു എന്നു പറഞ്ഞാല്‍ തുന്ന് എടുക്കുവാന്‍ വരാമെന്നും അല്ലെങ്കില്‍ നാട്ടില്‍ നിന്നും തന്നെ തുന്ന് എടുക്കാമെന്നും ആണ് പറഞ്ഞത്. ആ കാര്യം affidavit-ല്‍ പറയാതിരിക്കാന്‍ പ്രത്യേകിച്ച് കാരണമില്ല. ഞാന്‍ discharge ചെയ്യുന്ന സമയത്ത് doctor ഇല്ലായിരുന്നു. അന്നേ ദിവസം hartal ഉണ്ടായിരുന്നു എന്നു പറഞ്ഞാല്‍ 20-8-2008-ന്ന് hartal ആയിരുന്നു. Hartal ആയത് കൊണ്ട് അന്നേ ദിവസം doctor വൈകിയാണ് ആശുപത്രിയില്‍ വന്നത് എന്നു പറഞ്ഞാല്‍ അറിയില്ല. Doctor-റുടെ സമ്മതം കൂടാതെയാണ് ആശുപത്രിയില്‍ നിന്നും പോയത് എന്നു പറഞ്ഞാല്‍ nurse പറഞ്ഞിട്ടാണ് പോയത്. Discharge card പോലും പൂര്‍ണ്ണമായി എഴുതി തയ്യാറാക്കി എഴുതുന്നതിന്നു മുമ്പ് doctor-റുടെ സമ്മതം കൂടാതെയാണ് പോയത് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. എതൃകക്ഷി doctor-റെ ഞാന്‍ പിന്നീട് കണ്ടിട്ടില്ല. ഞാന്‍ എതൃകക്ഷി doctor-റെ phone ചെയ്തു സംസാരിച്ചു എന്ന് affidavit-ല്‍ പറഞ്ഞിട്ടുളളത് കളവാണ് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. ഞാന്‍ രണ്ടാമത് ആശുപത്രിയില്‍ പരിശോധനക്ക് ചെല്ലാത്തതുകൊണ്ടും എന്‍െറ അനാസ്ഥകൊണ്ടും ആണ് ഇപ്രകാരം ഉണ്ടായത് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. പിന്നീട് എനിക്ക് വളരെ വേദനയുണ്ടായി എന്ന് affidavit-ല്‍ പറഞ്ഞിട്ടുളളത് കളവാണ് എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. MIMS ആശുപത്രിയില്‍ ഞാന്‍ ചികിത്സക്ക് പോയത് ഏകദേശം 34 ദിവസം കഴിഞ്ഞിട്ട് ആണ് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്.”

15. The complainant did not go for review after one week though he admits that opposite party had advised to come after one week to remove the stiches. He also admits that he left the hospital next day without seeing the doctor. He did not take a single follow up with second opposite party doctor or consult any other doctor for 34 days. It is highly strange and against normal human conduct that if he had such pain and difficulties as narrated in the complaint he did not see opposite party doctor before leaving the hospital or at least after discharge. He deposed that he did not go for review because he lost confidence in second opposite party doctor. If his contention that the fracture was not disclosed to him and that he came to know about it only when he approached MIMS hospital, is to be believed then he reason for losing confidence in second opposite party doctor can only be the severe pain. But the complainant has waited for 34 days enduring the pain without taking any consultation. Even a minor tooth ache is unbearable and no person would be able to withstand such pain, welling and numbness for such long duration without taking any treatment. If the complainant had no knowledge about the fracture, his experience would definitely have been more than ordinary and he would certainly have approached second opposite party doctor or any other doctor within a week. The conduct of the complainant does snot harmonize with the case put forward by him.

16. The seventh molar of the complainant was grossly decayed. He deposed that he had pain while at Doha. But he denies having treated for tooth problem elsewhere. He has come for surgery and removal of teeth for a short leave and intended to return immediately after surgery. If the tooth was grossly decayed it is most likely that the complainant had taken treatment for pain of tooth elsewhere prior to it's extraction. He had come planning to undergo extraction/surgery and return immediately. It is not known why the complainant has denied having taken treatments for his tooth ailment previously such statements together with the unexplained delay of 34 days to take subsequent treatment casts a shadow of doubt on the case put forward by the complainant. Further the complainant pleads and affirms in para 4 of the complaint and affidavit that on 20-8-2008 at the time of discharge he told second opposite party doctor that the pain has aggravated and that he has feeling of numbness on the face. But in cross examination the complainant deposed that on 20-8-2008 it was hartal and that he had not seen second opposite party doctor at the time of discharge. These inconsistencies do not inspire confidence in us to believe the contention put forward by him that the fracture to mandible was not disclosed to him and that he came to know of it only 34 days later.

17. Another allegation of deficiency raised by the complainant is that opposite party did not mention the occurrence of fracture in the discharge card. On perusal of Ext.A1 which is the discharge card it is seen stated as under:

“X tracted – impacted 8^th molar under L.A.”

It is correct that opposite party has not mentioned anything about the fracture to mandible and it's management. Opposite party has also not mentioned in Ext.A1 the removal of 7^th molar by open method. It is the case of opposite party that Ext.A1 discharge card is not a final/complete discharge card. That complainant had left hospital on 20-8-2008 before second opposite party doctor could reach the hospital. That the complainant had left without consent. According to opposite party doctor 20-8-2008 was hartal and he had started writing the discharge card on 19-8-2008 night itself and handed over to the nurse to give it to the complainant if opposite party doctor does not reach the hospital, so that the complainant could complete discharges formalities at the counter. The discharge card was not complete and opposite party was anticipating to examine the complainant on 20-8-2008 after he reached the hospital. That second opposite party doctor did not foresee that complainant would leave without seeing him. The evidence of DW1 in this regard is as under:

“The discharge card cannot be fully relied for further follow up treatment because it may not contain the full details. To some extend it can be used. The complainant herein was issued with discharge card. Ext.A1 shown to witness. It is correct to say that usually discharge card is issued when the patient is discharged. In Ext.A1 the mandible injury is not mentioned. Witness adds: Ext.A1 was not a complete discharge card. I have not issued a complete discharge to the complainant because the patient did not wait for me. Ext.A1 was handed over the ward nurse. Ext.A1 bears my handwriting. On the relevant date due to hartal I could not reach hospital for the morning rounds. On the previous day I had written Ext.A1. 20-8-2008 was a hartal. The nurse had handed over the incomplete discharge card to the patient, so that the patient can complete the discharge formalities and go home earlier. I agree that the discharge card should reflect the condition of the patient at the time of discharge. I do not agree to the suggestion that writing the discharge card of a patient on the previous day itself is deficiency on my part. It is correct that I had handedover Ext.A1 to the ward nurse to be handed over to the complainant in case I am not able to reach the hospital on 20-8-2008 due to hartal. I do not say that ward nurse acted against my directions. Witness adds: Patient acted against my directions. It is correct that the complainant has left the hospital only after getting discharge card from the ward nurse. The patient was advised to bring bystanders. But there was no bystanders. The nurse and I had advised him to wait till I come. I never expected he would leave before I reach the hospital.”

“I deny to the suggestion that the patient had left the hospital only after seeing me. I deny to the suggestion that I handed over Ext.A1 discharge card to the patient.”

18. Complainant agrees that he left the hospital without seeing the doctor and that the nurse had handedover the discharge card to him. So the case of opposite party that the discharge card is not complete and that opposite party did not get opportunity to check the patient prior to discharge and complete the discharge card is probable and acceptable. Moreover there is no prescribed format or law for writing details in a discharge card. In practice, the discharge cards issued from government hospitals rarely contain any details of treatment. The case sheet was supplied to the complainant when he made request through his lawyer. In case sheet the fracture and management and extraction is noted. The complainant has not offered an opportunity to opposite party doctor to examine him the next day after the surgery. He did not go for review and second opposite party doctor was not able to know about the outcome of his surgery. Complainant then cannot turn around and blame the doctor that the doctor is negligent. A patient is bound to follow the doctor's advice.

19. It is also alleged that the hospital did not supply the treatment records even though complainant requested for the same. There is no evidence to show that the complainant had applied for the treatment records directly. When he requested through his lawyer as per Ext.A4 notice, the hospital has supplied copy of the treatment records. On this count we therefore cannot find any deficiency.

20. Counsel for complainant placed reliance on the decisions in 2010 (2) CPJ 491 Kerala State Consumer Disputes Redressal Commission in Charles K. Thomas Vs. Mercy Jose and 2007 CPJ 125 (NC) Paramjit Singh Gewal (Dr) Vs. Charnjit Singh Chawla. The above decisions and have no application to the facts of this case as the complainant herein has left the hospital without seeing the doctor and even did not go for review. Moreover opposite party hospital had mentioned the details of fracture in treatment records and it was furnished to the complainant when he requested for the same through his lawyer.

21. It is settled principle of law that as long as a doctor exercises due care, skill and diligence he cannot be held negligent. Neither the very highest care nor the very low degree of care and competence is what the law requires. There is no expert evidence to establish that the second opposite party doctor committed any breach in the duty to care and render treatment to the complainant. From the above discussions we hold that complainant has failed to establish any medical deficiency on the part of opposite parties.

22. In the result, we dismiss the complaint. No order as to costs.

Dated this 29th day of September, 2010.

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

PW1 : Abdulla.P.M., Complainant.

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Discharge card dated, 20-8-2008 from opposite party to complainant.

Ext.A2 : Out patient card dated, 18-8-2008 from opposite party to complainant.

Ext.A3(series) : Pharmacy Bill (6 Nos.) from opposite party to complainant.

Ext.A4 : Photo copy of the lawyer notice (Regd. Post with A/D) dated, 20-10-2008

by complainant's counsel to first opposite party.

Ext.A5 : Photo copy of the reply notice (Regd. Post with A/D) dated, 27-10-2008

by first opposite party's counsel to complainant's counsel.

Ext.A6 : Photo copy of the case sheet from opposite party to complainant.

Ext.A7 : Discharge summary dated, 03-10-2008 from MIMS hospital to complainant.

Ext.A8 : Cash bill dated, 25-9-2008 for Rs.360/-.

Ext.A9(series) : Out patient bills (32 Nos.) from MIMS hospital to complainant.

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. Abdul Gafoor, second 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