OF 2008 AGAINST C.D.NO.15 OF 1998 DISTRICT CONSUMER FORUM NIZAMABAD

Between

Dr.R.Bhupathi Reddy S/o late Raja Reddy
Aged about 47 years Occ: Orthopedic Surgeon
Sri Sai Tiruamala Orthopaedic Hospital, Khaleelwadi
Nizamabad-002

Appellant/opposite party

        A N D

Smt Shakuntala W/o narayana Reddy
Aged about 58 years, Occ: Housewife
R/o Konasamunder (V) Dist.Nizamabad

                                                        Respondent/complainant

Counsel for the Appellant             Sri T.L.K.Sharma

Counsel for the Respondent          Sri M.Devender Reddy

QUORUM:         SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                THURSDAY THE TWENTY FIFTH 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 the complainant admitted as in patient in the opposite party hospital on 27.3.1996 due to fracture to her right femur.  The opposite party on 30.3.1996 conducted surgery to the right femur of the complainant with plating and discharged her on 10.4.1996 by prescribing certain medicines and advised her to do some quadriceps exercises.  As per the advice of the opposite party the complainant regularly visited the opposite party for check up and complained of pain at fracture sites for several times which the opposite party did not care and asked her to use the prescribed medicines.  Later, the complainant took the X-ray that showed break of implant and non-union of bone.  The opposite party referred the complainant to a Orthopaedic Surgeon at Hyderabad where Dr.Madhusudhan Reddy, Orthopaedic Surgeon conducted second operation for implant failure and non-union of bones. Therefore, the complainant got issued a legal notice dated 3.11.1997 to the opposite party claiming damages to which the opposite party gave reply denying the allegations made in the notice.  Hence, the complainant filed the complaint seeking direction to the opposite party to pay `1,20,000/- as compensation and costs.

3.     The opposite party filed counter admitting the performance of surgery on 3.4.1996 for the right knee of the complainant with internal fixation with supra condyler plating and contended that after discharge on 10.4.1996,  the complainant visited the opposite party clinic few times and the X-ray reports taken from time to time had shown satisfactory improvement in the wound healing and relief of pain.  After a long time, the complainant visited the opposite party with a complaint that she slipped down and is having pain and not in a position to walk.  The X-ray taken at that time revealed supra condyler plate and its screws got broken and a gap at right femur bone.  On the advice of the opposite party to undergo second operation the complainant expressed her readiness for a second opinion and the opposite party referred the complainant to Dr.Sreenivas Rao, Hyderabad.  The complainant had undergone second operation.  The opposite party performed surgery according to the international standard and there is no deficiency and negligence in service.  Therefore, prayed for dismissal of the complaint.

4.     The complainant has filed her affidavit and documents Exs.A1 to A54. .

5.     The opposite party has filed his affidavit and documents Exs.B1 to B4. 

6.     The District forum has allowed the complaint on the premise that the opposite party had not substantiated his plea that the complainant did not complain of pain at the fracture site and awarded an amount of `50,000/- towards damages and costs of `2,000/-. 

7.     Feeling aggrieved by the order of the District Forum the opposite party has filed the appeal contending that the complainant had not complained of pain and not healing of bone during her initial medical check up.  It was contended that the opposite party performed surgery in scientific manner and as per international standard and that due to non-follow up instructions of the doctor and stress and strain on the implant even before union of the bones at femur may result in the breakage of implant and screws. 

8.     The point for consideration is whether the impugned order suffers from any infirmity of appreciation of fact or law?

9.     The complainant was admitted to the opposite party hospital with the complaint of pain in her right leg on 27.3.1996.  The opposite party suggested for X-ray which revealed that the complainant sustained commuted fracture supra condyler region of right femur.  The opposite party conducted surgery of open seduction and with internal fixation with supra condyler plate on 3.4.1996.  The complainant was discharged on 10.4.1996.  It is the contention of the opposite party that the complainant’s initial visits during postoperative stage, X-ray reports had shown improvement in the healing of pain.  The complainant has submitted that she had severe pain at fracture site at right knee and appellant did not care and advise by prescribing medicine.  The complainant has submitted that she was referred to another orthopedic surgeon by the opposite party at Hyderabad where Dr.Madhusudhan Reddy performed operation for implant failure and non-union of bones. 

10.    After the surgery, the complainant has visited the opposite party on 20.4.1996 and 7.6.1996.  On the first occasion the opposite party advised for review after one month and on the second occasion the opposite party has recorded “X-ray fixation satisfactory”.  Again on 6.7.1996 when the complainant visited the opposite party, she was advised to walk with partial weight bearing walker and on 1.8.1996 the complainant complained of pain at fracture site.  Ex.A44 shows the complainant suffers from edema foot.  Again on 18.9.1996 the complainant has visited the opposite party with the complaint of pain at right knee.  In the light of findings recorded by the opposite party in Exs.A37 and A44, the complainant has frequently complained of pain at fracture site belies the contention of the opposite party that the complainant has never complained of pain during her postoperative visit.  When the complainant complained of edema of foot as seen from Ex.A44 and even during her subsequent visit on 18.9.1996 and 30.10.1996, the opposite party has not advised for X-ray to rule out the possibility of any problem at fracture site. 

11.    The contention of the opposite party that implant failure and non-union of fracture was due to the negligence on the part of the complainant is not substantiated by any evidence either oral or documentary.  It is pertinent to note that the second surgery performed by Dr.Madhusudhan Reddy was successful and subsequent to that surgery there was union of bones and no complaint of any pain from the complainant. 

12.    The opposite party has got issued reply to the notice dated 3.11.1997 of the complainant that the complainant left his hospital against medical advice and even before the stitches were removed.  This contention does not find support from the discharge sheet.  Dr.Sreenivas Rao, advised for removal of implant and their refixation as seen from his prescription dated 28.4.2007.  Dr.Madhusudhan Reddy has issued prescription dated 10.5.1997 that it was a case of non-union with implant failure.  The complainant has for several times during postoperative stage visited the opposite party and the opposite party has neglected to advise for X-ray when she complained repeatedly of pain and edema of foot.    The contention of the opposite party that the complainant had turned up for check up for fewer times only and she had never complained of any pain is not proved and it is also not proved that the complainant had not observed the follow up instructions.  The opposite party has not proved that due to stress and strain on the implant, it had resulted in breakage.  A conspectus of the documentary evidence as also the affidavit of the complainant would establish the negligence on the part of the opposite party in rendering the treatment to the complainant.  Hence, we are inclined to confirm the findings recorded by the District Forum.

13.    In the result, the appeal is dismissed confirming the order of the District Forum.  No costs.  Time for compliance for four weeks.

                                                                                   Sd/-

                                                                                MEMBER

                                                                                    Sd/-

                                                                                MEMBER

                                                                           Dt.25.11.2010

KMK*