COMPLAINT FILED: 31.07.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 03rd NOVEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1701/2008<br /> <br /> <br /> COMPLAINANT Sri. V. Lakshmisha,<br /> S/o. V. Venkata Rao,<br /> Aged about 48 years,<br /> # Bavani Nilaya,<br /> 10th Cross, Subash Nagar,<br /> Nelamangala Town,<br /> Bangalore Rural District.<br /> <br /> <br /> Advocate (S.K. Manjunath)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. M/s. Sahana Hospital,<br /> (a unit of Sahana Hospitals Pvt. Ltd.,)<br /> Represented by Dr. Arvind. G,<br /> Surgeon.<br /> <br /> <br /> 2. Dr. Roshan Kumar,<br /> <br /> <br /> 3. Dr. C. Manjunath,<br /> Orthopaedic Surgeons,<br /> <br /> No. 143, 2nd Main, 7th Cross,<br /> Kengeri Satellite Town,<br /> Bangalore - 60.<br /> <br /> <br /> Advocate (H.S. Chandramouli)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.10,00,000/- jointly and severally on an allegations of medical negligence and deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> The complainant met with a road traffic accident while driving his motor cycle on 21.01.2008 at 10.25 a.m. near Hemmigepura Village, it was a hit and run case. Due to the said accident complainant sustained severe injuries over his left leg and chest. In that regard he went to the OP.1 hospital in an ambulance for treatment. On examination it was revealed that there is a displaced comminuted fracture trochantier-left femur, comminuted displaced fracture shaft femur M/3rd left femur limb and contusion cervical spine. In the meantime complainant brother-in-law Dr. Ramnath visited the said hospital and enquired about the facilities available therein with the Managing Director of the said hospital Dr. Aravind. In fact Dr. Ramnath wanted to shift the complainant to the higher hospital, where better facilities are available. But somehow Dr. Aravind managed to get complainant admitted at his hospital by giving some false assurances. Then the Doctors of the OP hospital like OP.2 and 3 the Orthopaedic Surgeons and Dr. N. Chandrashekar, Neuro Surgeon, Dr. Mahesh, Physician, Dr. Ramesh Anaesthetist and Dr. Kashyap, Medico-Legal Consultant performed the operation and told that the operation is successful and they have inserted the rod in support of the broken bones. They have also promised to give him the C.D. of the operation, x-ray and other connected documents. Though complainant was discharged on 25.01.2008, they did not give the discharge summary and other documents. In postoperative days complainant experiencing lot of pain and was unable to bend his knee. The request made by the complainant to OP to reduce the pain, went in futile. Thereafter he was forced to approach one Dr. C.V. Kumar of Nelamangala Town. He subjected him for the x-ray, then told the complainant that no rod is fixed in support of the broken bones, instead of rod two plates with screws are fixed and there is an inadequate and improper fixation of the bone, which has caused damage to the blood supply. Thus he is experiencing the pain and ailment. Then he was advised to undergo Reosteosynthesis with Recon nail and bone grafting. The said procedure was done at J.P Hospital, Nelamangala, thereafter he got the relief. Thus complainant felt that there is a carelessness and medical negligence on the part of OP.2 and 3 as well as the OP.1 hospital. For no fault of his, he was made to undergo second operation and to bear the extra expenses. He contacted the OP to compensate him, but it went in vain. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version. The defence set out by the OP.1 to 3 is one and the same. The brief averments as could be seen from the contents of the version are that. The brother-in-law of the complainant Dr. Ramanath was all along present when the complainant was admitted at OP hospital and underwent the surgery. Of course OP.1 has association with Hosmat Hospital also. So the allegations of the complainant that OP.1 did not have the infrastructure and qualified experienced doctors to conduct the said surgery are false. Before the surgery it was explained to the complainant what is the methods of treatment that is going to be given. Dr. Ramanath was all along present during the surgery. OP provided the best nursing facility, having sufficient infrastructure as per the norms. The allegation of the complainant that OP promised to take care of him at his house postoperatively is baseless. At the time of the discharge only complainant collected the discharge summary and signed the documents. Before discharge he was postoperatively subjected to x-ray. X-ray clearly revealed that the fixation of the fractures were good and stable. The implants were seen in acceptable position. The other allegations of complainant that there is an inadequate and improper fixation of bone is baseless. Under the said surgery ideal choice of fixation of both fractures was done with recon nail by implantation of the plates under C-Arm control, which is the accepted procedure and standard approved mode of treatment with respect to the fractures sustained by the complainant. Complainant was advised to come for follow up check up and given certain instructions about the healing. What made the complainant to approach Dr. C.V. Kumar for the second operation is not known. There is a negligence and carelessness on the part of the complainant in not following instructions issued by the OP. If he has suffered some kind of ailment and pain postoperatively, it is all because of his own carelessness. For that OP cannot be blamed. The other allegations of the complainant are baseless. The complaint is devoid of merits. Neither there is any deficiency in service on the part of the OP nor medical negligence, hence they are not liable to pay any compensation as claimed. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence along with affidavit of Dr. C.V. Kumar who conducted the second surgery and produced some documents. On behalf of the OP 3 witnesses are examined as DW.1 to 3 including that of OP.2 and 3 one Radiologist and produced hospital records, case sheets and other connecting documents. OP served the interrogatories on the complainant, complainant gave reply to the same. The complainant has not chosen to cross-examine the OP or served the interrogatories. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service and medical negligence<br /> on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant while riding his motorcycle met with an accident near Hemmigepura Village, wherein one speedy Toyota Qualis dashed against his motor cycle and went away. It is a hit and run case. Unfortunately complainant has not mentioned the date of the accident in his complaint. Then complainant was brought to the OP.1 hospital in an ambulance. The fact that the complainant brother-in-law Dr. Ramnath was all along present with the complainant when he was taken to OP.1 hospital is not in dispute. It is alleged by the complainant that though OP.1 did not possess the infrastructure and modern facilities to treat the fractures, but somehow Dr. Aravind of OP.1 hospital induced complainant and Dr. Ramnath in admitting the complainant in their hospital for the needful treatment. For this allegation basically there is no proof. The fact that Dr. Ramnath was present even during the course of surgery and before going to the surgery the pros and cons of the operation, mode of treatment, procedure that is to be followed in refixing of the said fractures is explained to the complainant as well as to Dr. Ramnath. There is a transparency on the part of OP.1, 2 and 3.<br /> <br /> 7. It is further contended by the OP that after the surgery Dr. Ramanath visited the said hospital, examined the complainant, collected his professional charges from OP.1 hospital is also not at dispute. With all that unfortunately complainant has not examined Dr. Ramnath to substantiate his allegations of medical negligence, deficiency in service caused by the OP. The non-examination of Dr. Ramnath is fatal to the case of the complainant. It is alleged in the complaint that apart from OP.2 and 3 Dr. Chandrashekar, Dr. Mahesh, Dr. Kashyap were also involved in the said surgery. Even the legal notice issued by the complainant contains their names wherein compensation is sought. What made the complainant to arrive only OP.2 and 3 along with OP.1 as the OP's in this complaint leaving the above said doctors is not known.<br /> <br /> 8. The fact that OP.1 hospital had the facilities of experienced qualified doctors in various field including that of Orthopedic, Neuro, Physicians, Medico-Legal Consultant is also not at dispute. The fact that OP.2 and 3 are the qualified surgeons in the field of Orthopaedic having lot of experience and conducted such kind of surgeries many more times is also not at dispute. With all that complainant wants to make some allegations alleging the deficiency in service on the part of OP.2 and 3. It is also not at dispute that on 25.01.2008 complainant was discharged before that post-operative, x-ray was taken which clearly revealed the fixation of the fractures were good, stable and the impant were seen in acceptable position, the postoperative period was uneventful. There is a proof that complainant collected the discharge summary on the date of discharge itself. With all that he wants to make some allegations against the OP, it is unfortunate.<br /> <br /> 9. It is contended by the OP that during the course of discharge complainant was advised to come up for the follow up check up and the healing of the wound and settlement of the bones may take nearly 4 to 6 months. The complainant has not followed the said medical instructions, on the other hand chosen to go to Dr. C.V. Kumar DW.2 and underwent the second operation. When that second operation was conducted is not mentioned in the complaint. So complainant is not very much sure about the treatment extended by Dr. C.V. Kumar. The fact that Dr. Ramnath, brother-in-law of the complainant chosen the treatment and the procedure which was adopted by OP's is one of the standard and approved methods of treatment is not at dispute. The texts produced by the OP substantiate the said defence. <br /> <br /> 10. As per the medical literature procedure which is performed on the complainant is called as DHS with plate fixation for fracture and DCP with screws fixation for fracture of shaft of femur. That is what is done by OP.2 and 3. The reunion of the bone depends on the condition of individual, they have to wait atleast for 4 to 6 months and follow strictly the medical advise and instructions. But here in this case, it appears before healing period second surgery was conducted and the ailment if any suffered by the complainant is may be due to his own negligence. The fact that complainant has already availed the medi claim insurance facility with regard to the expenses incurred by him is also not at dispute. Now it is contended by the OP that as the complainant insisted for second set of original bills to claim compensation under M.V. Act and when they refused to heed to his demand this false complaint is filed, there appears to be some substance in the said contention. Anyhow the burden of proof rests with complainant to prove his case.<br /> <br /> 11. We have gone through the number of documents produced by both the litigating parties as well as the evidence that is lead, we are of the view that OP's have followed the procedure which is universally accepted and approved and it is standard treatment that could be provided with respect to the fractures sustained by the complainant. Before discharge postoperative x-ray was taken which shows the satisfactory result. The concerned Radiologist Dr. Ramalingaiah has also filed the affidavit supporting the OP's defence. The evidence on behalf of OP, which finds full corroboration with the contents of the undisputed documents appears to be very much natural, cogent and consistent. There is nothing to discard their evidence. As against the defence set out by the OP, the allegations of the complainant appears to be baseless and frivolous. The evidence of the complainant himself is self-contradictory on good number of material facts so also that of his witness CW.2 Dr. Kumar as could be seen from the contents of his affidavit. Both complainant and his witness breathe hot and cold to the reasons best known to them. The fact that complainant, his wife and his brother-in-law have approved the procedure and the standard of treatment is not at dispute. <br /> <br /> 12. If the complainant has visited the CW.2 within that stipulated period of healing, on the day one itself he would have been subjected to x-ray, but CW.2 took his own sweat time of 27 days to take the x-ray. The possibility that complainant having floated the medical directions or weight bearing aspect, fall, traveling, could not be ruled out. Due to the said carelessness there is a possibility of screw implanted moving, for that OP cannot be blamed. It appears there aroused some kind of mis-understanding between the complainant, his brother-in-law and CW.2 with OP.2 and 3 including OP.1 probably that may be the root cause for this complaint. Anyway viewed from any angle, in absence of some expert's evidence in the field on behalf of the complainant to speak and establish to the fact that the procedure, adopted, treatment given, surgery conducted by OP.2 and 3 is opposed to the normal medical practice, the bare and vague allegations of complainant and his witness cannot be believed. CW.2 cannot be treated as independent expert witness, because he is a party to the second operation. So he is an interested witness.<br /> <br /> 13. OP Doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field. The evidence has come that OP has acted in accordance with the practice regularly accepted and adopted. Medical negligence is to be established, it can't be presumed. <br /> <br /> 14. The fact and circumstances of the case before us, show that OP has attended the patient with due care, skill and diligence. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. <br /> <br /> 15. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. A surgeon performing surgery is not gifted with an extra-ordinary skill nor he is expected to perform miracles. What is expected of him is whether the procedure followed by him is generally acceptable to the medical profession. The law does not require of a professional man that he be a paragon combining qualities of polymath and prophet. A complaint regarding medical negligence should allege and support with expert evidence as to what was done which should not have been done or what was not done which should have been done. But it is missing in this complaint.<br /> <br /> 16. In view of the discussions made by us, we find the complainant has utterly failed to establish the deficiency in service as well as medical negligence on the part of the OP. Under such circumstances he is not entitled for the relief claimed. The complaint appears to be devoid of merits. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 03rd day of November 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> p.n.g. <br />