Sri. Jacob Stephen (President):
The petitioners’ case is in brief is as follows:- The 1st petitioner namely Binu is a minor aged 17 years and he is represented by his father the second petitioner. The 1st petitioner sustained cut injury on the achilles tendon of his right leg on 14.7.1997 and was immediately taken to the opposite parties hospital for treatment. Dr. Ganesh Babu, MS operated upon his injured portion and the son of opposite party who is a medical student assisted Dr. Ganesh Babu for conducting the operation. On 19.7.1997 the patient was discharged from the hospital. The patient continued out-patient treatment and on 4.8.1997 Dr. Ganesh Babu asked the patient to walk. The patient collapsed in the presence of the doctor and his condition became critical. On 5.8.1997 the patient was taken to the Govt. Hospital, Pathanamthitta for treatment. The treatment of Dr. Ganesh Babu was improper. The 1st petitioner has become lame in his right leg and is permanently diasbled. The opposite party is liable to pay a compensation of Rs. 3 lakhs to the petitioner. Hence the petition.
2. The 1st petitioner attained majority and his majority was recorded. The petitioner has impleaded addl. 2nd and 3rd opposite parties also in this case.
3. The 1st opposite party filed version and contended inter alia as follows: The above petition is not maintainable either in law or on facts. The allegations of the petitioner against this opposite party are false and hence denied. Opposite party’s St. Mary’s M & LS Hospital is now named as St. Mary’s Mission Hospital. The 1st petitioner Binu came to the hospital after sustaining a cut injury on the tendon of his right leg on 14.7.1997. The tendon was totally cut off. Dr. Ganesh Babu attended him and the doctor succeeded to join the tendon. The proprietor’s son is a medical student. But he never attended any patient directly. He never assisted the doctors in hospital. Dr. Ganesh Babu is a qualified doctor. On 19.7.1997 Binu was discharged on request. The patient visited the hospital several times and different dates of his visit to the hospital are furnished in the version. The doctor never advised the patient to walk. The patient dis-regarded the warning and walked in his house on 5.8.1997. On 5.8.1997 the patient did not visit the hospital nor Dr. Ganesh Babu. There is an ambulance van in the hospital. The patient is a nearby resident of the hospital. Now Dr. Ganesh Babu is working some-where else. It is a medically admitted fact that only in rarest cases a total broken tendon joint to earlier position. Now the patient is under the treatment of another doctor. Only an authorised Medical Board, consisting of a team of doctors can certify the percentage of disability and the reason behind the treatment failure, if any. The opposite parties are not liable to pay any compensation to the petitioner. Hence it is prayed for the dismissal of the above petition.
4. The addl. 2nd opposite party filed version and contended inter alia as follows: The 2nd opposite party is the Proprietor of the St.Mary’s M & LS Hospital, Edathitta. As the proprietor the 2nd opposite party already filed the version. So now in personal capacity, has nothing to state more than what is submitted earlier. Hence the 2nd opposite party prays that this Hon’ble Forum may be pleased to consider the version filed by the 1st opposite party as the version of the first and second opposite parties and for the reasons stated in that version. It is prayed for the dismissal of the above petition with a compensatory cost to opposite party.
5. In this case, the complainant and two witnesses were examined as PWs.1 to 3 and Exts.P1 to P6 were marked. Opposite party’s counsel cross-examined PWs.1 to 3. But they have not adduced any oral or documentary evidence in their favour. After the closure of evidence, both sides were heard. Thereafter, this Forum disposed the case on 20.3.01 in the following terms. “The Addl. 2nd opposite party is directed to pay a compensation of Rs.1,50,000/- with interest from order till realisation for mental agony and financial loss owing to the disability caused to the 1st petitioner and to pay a sum of Rs.5,000/- as cost of proceedings to the 1st petitioner within one month from the receipt of a copy of this order”.
6. Aggrieved by the order of this Forum, opposite parties preferred an appeal No.467/01 to the Hon’ble CDRC, Thiruvananthapuram. The Hon’ble CDRC, Thiruvananthapuram disposed of the appeal with the following observations:- “Hence the order passed by the Forum below is set aside and the matter is remitted to the Forum below. Forum Below is to give a direction to the Dist. Medical Officer, Pathanamthitta to constitute a Medical Board consisting of Orthopaedic Surgeon and other competent doctors to assess the percentage of disability, if any, suffered by the respondent/complainant as a result of operation performed on him. After getting the report of the medical board the Forum below is to give opportunity to the parties to adduce evidence in support of their respective cases, if they so choose (Forum below should also give opportunity to the parties to file objections to Medical Board’s Report). Forum below is to dispose of the matter in accordance with law as expeditiously as possible, preferably within three months from the date of receipt of medical board’s report” to the Forum.
7. The case records were received in this Forum. Both sides appeared before the Forum.
8. In compliance to the direction of the Hon’ble CDRC, this Forum directed the Dist. Medical Officer, Pathanamthitta to constitute a Medical Board for ascertaining the cause of the disability of the complainant. Accordingly, DMO constituted a Medical Board consists of 4 doctors and examined the complainant and submitted the disability certificate dated 23.12.03. The said disability certificate was without mentioning the cause of the disability of the complainant. The counsel for the opposite party filed an objection regarding the non-mention of the cause of disability in the certificate. Since the disability certificate dated 23.12.03 does not contain the cause of disability, this Forum again directed the D.M.O., Pathanamthitta for constituting a new Medical Board for ascertaining the cause of disability of the complainant in accordance with the directions of the Hon’ble C.D.R.C. Accordingly D.M.O had constituted a new Medical Board consisting of 4 doctors. The newly constituted Medical Board again examined the complainant and submitted a disability certificate dated 6.3.07.
9. After the remand, the 2nd and 3rd opposite parties were examined as DW1 and DW2. The Medical Superintendent, General Hospital, Pathanamthitta and the Chairman of the Dist. Medical Board was also examined as PW4 and Exts.P7 and B1 were marked. Ext.P7 is the disability certificate dated 6.3.07 and Ext.B1 is the disability certificate dated 23.12.03. After closure of evidence, both sides filed argument notes and the counsels were heard. After the hearing, the counsel for the complainant filed a written objection to Ext.P7 disability certificate.
10. The following points were raised for consideration.
- Whether the complainant’s disability is due to the negligence of the opposite parties?
- Reliefs and Costs?
11. Point Nos. 1 & 2:- We have gone through the complaint, versions, proof affidavits, depositions, objections, exhibits and argument notes. The complainant’s case is that he had sustained a cut injury on the Achilles tendon of his right leg on 14.7.97 and he had undergone treatment at the 1st opposite party’s hospital and he was discharged from the hospital on 19.7.07. He continued treatment as out patient. While so, on 4.8.97 Dr. Ganesh Babu who treated the complainant at 1st opposite party’s hospital compelled him to walk. While he tried to walk he collapsed in the presence of the doctor and his condition become critical. Doctor given him an injunction and told him that nothing to worry. But his condition become bad and as per the advice of another govt. doctor, PW3, the complainant was taken to the Govt. Hospital, Pathanamthitta on 5.08.2004 where he had admitted and undergone treatment for so many days from PW2 and he was recovered. But the complainant has become lame in his right leg as it shows disability. According to the complainant, his disability was due to the improper treatment at the 1st opposite party’s hospital and the opposite party is liable to compensate the complainant for his disability and he prays for allowing Rs.3 lakhs with 18% interest as compensation and cost of this proceedings.
12. Opposite parties denied the allegations of the complainant. They admitted the admission and the treatment of the complainant at the 1st opposite party’s hospital. According to them, they have given the best treatment to the complainant. They denied the allegation of the collapse of the complainant at the hospital on 4.8.97. They alleged that the complainant might have walked at his house against the advices and warning given by the doctors, which resulted in complications to the complainant’s injury. According to the opposite parties, the complications are not due to the negligence of the opposite party. But the complainant alone is responsible for it. They also contended that only an authorized medical board consisting of a team of doctors are competent to say about the disability and the treatment failures and in the circumstances they are not liable to compensate the complainant.
13. However, this Forum after considering the evidence passed an order allowing the complaint. But on appeal, the Hon’ble CDRC, Thiruvananthapuram set aside that order and remanded the case with a direction to dispose the case after obtaining a certificate from the Dist. Medical Board. As per the directions of the Hon’ble CDRC, Thiruvananthapuram, this Forum obtained a certificate of the Medical Board and opportunity were given to both sides for adducing further evidence. Accordingly, the 1st opposite party and one witness were examined as DWs.1 and 2 and the Chairman of the Medical Board was examined as PW4 and Exts.P7 and B1 were marked. Ext.P7 is the disability certificate issued by the Medical Board showing that the disability of the complainant is 4% and the said disability is due to the injury sustained and not due to the surgery (repair). Ext.B1 is the previous disability certificate dated 23.12.2003 issued by the earlier Medical Board and it was marked through PW4.
14. The main allegation of the complainant is that the treatment received by him at the opposite party’s hospital is improper and the doctor who had treated him at that hospital insisted him to walk. But he collapsed at that time. Due to the improper treatment and due to the collapse, his injury become complicated and he went for further treatment at Govt. General Hospital, Pathanamthitta. He was admitted there and undergone treatment for many days and he was recovered. But he cannot walk properly. The doctor who treated at Govt. General Hospital, Pathanamthitta certified that he is having 4% disability and that the disability was due to the improper treatment at the first stage at the first opposite party’s hospital and opposite parties are liable to the complainant.
15. The opposite parties’ contention is that they have given proper treatment to the complainant. They denied the allegation of the collapse. The complainant was never compelled to walk. The complainant might have exerted force to his injured leg at his home disregarding the advice of the doctor. The complainant never approached opposite parties with complaints of complications after 4.08.1997. During the treatment at opposite parties’ hospital as I.P. and O.P., the complainant’s injured tendon was joined. It is a medically admitted fact that only in rarest cases, a total broken tendon joins to earlier position. The complainant had undergone treatment at another hospital by another doctor. The complainant’s disability is not certified or ascertained by an authorized Medical Board. In the circumstances, they are not liable to the complainant.
16. This complaint was once allowed by this Forum. But that order was set aside by the Hon’ble CDRC and the case was remanded back with a direction for fresh disposal after obtaining a disability certificate from a competent Medical Board with special reference for ascertaining the cause of disability. It is clear from the observation seen in the order of the Hon’ble Appellate Authority. So we are not going into the minute details of the evidence collected prior to the remand.
17. The evidence after the remand consists of the Ext.P7 and Ext.B1 and the depositions of PW4, DW1 and DW2. Ext.P7 is the disability certificate dated 6.03.2007 issued by the Medical Board under the Chairmanship of PW4. Ext.B1 is another disability certificate dated 23.12.2003 issued by another Medical Board. Ext.P7 and Ext.B1 were marked through PW4. The finding in Ext.B1 is that the complainant is having permanent physical disability of 4% in total. But it does not contain the cause of disability. But in Ext.P7 it is clearly stated that the assessed 4% permanent disability of the complainant is due to the injury sustained and not due to the surgery (repair). Both certificates, Exts.P7 and B1 were issued after examination of the complainant by the concerned Medical Boards. Ext.P7 disability certificate is strongly opposed by the learned counsel for the complainant and he argued for accepting Ext.P5 disability certificate issued by PW2.
18. The main objections against Ext.P7 disability certificate raised by the learned counsel for the complainant is as follows: “The Medical Board has not perused the treatment records and not considered the history of treatment pertaining to the treatment of the complainant and no reasons is cited for their conclusion in Ext.P7 and it is issued under the influence of opposite parties”. On the other hand, the counsel for the opposite parties argued that the earlier order of this Forum was set aside and the matter remanded back by the Hon’ble CDRC with a direction to obtain a disability certificate from the Medical Board ascertaining the cause of the disability. Duly constitued Medical Board issued a certificate of disability after examining the complainant. Ext.P7 shows that the complainant’s disability was not due to the surgery. Ext.P5 disability certificate is in fact superceded by Ext.P7 disability certificate. The other points argued are that the complainant failed to produce the detailed treatment records/case sheet from the General Hospital, Pathanamthitta and also failed to implead the doctor who treated the complainant at the opposite parties’ hospital and that the complainant has failed to establish the negligence of the opposite parties. It is also argued that there is no reason to discard Ext.P7 as it is a properly issued certificate.
19. On the basis of the contentions and arguments put forward by the counsels, we have gone through the entire materials on record and our observations are as follows: There is no dispute regarding the treatment of the complainant at opposite parties’ hospital upto 4.08.1997 as I.P and O.P. But there is no evidence to show the alleged collapse of the complainant at opposite parties’ hospital on 4.08.1998. Dr. Ganesh Babu, who had admitted and treated the complainant at opposite parties’ hospital, is not impleaded as a party in this case. The detailed treatment records pertaining the treatment of the complainant at first opposite parties’ hospital is not seen marked in evidence and the marking of that record was also objected by the complainant. The complainant claimed that he had undergone treatment at General Hospital, Pathanamthitta from 5.08.1997 to 5.09.1997 as I.P. But the detailed treatment records from the General Hospital, Pathanamthitta is also not produced in this case. Ext.P4 is only the discharge card having no details of treatment. Ext.P5 issued by PW2 is prepared in his letter pad and it is seen issued only in his personal capacity after a lapse of one year after the treatment. It is also does not contains any details of treatment. Competent Medical Boards have issued 2 disability certificates in the place of Ext.P5 which are marked as Ext.P7 and Ext.B1.
20. In the aforesaid circumstances and in the absence of any detailed treatment records either from the opposite parties’ hospital or from the General Hospital, Pathanamthitta, we are compelled to rely Ext.P7 disability certificate. Then comes the question whether Ext.P7 disability certificate can be accepted or not. The complainant’s counsel objected Ext.P7 certificate by saying that the Medical Board has not perused the treatment records and their finding is not based on reasons. In this case, prior treatment records are not made available and it is an admitted fact that the patient was referred to Medical Board without any treatment records. In the absence of any treatment record, the only option to the Medical Board is to examine the patient in person. Accordingly, the Medical Board had examined the patient and issued Ext.P7. So we cannot find any fault with the Medical Board in this regard. Moreover, PW4 answered in the box “in almost all cases, there will be some amount of disability. We do not write all the details in the certificate. We examine the patient, assess the disability and write only the relevant points”. PW4 also deposed that Ext.A7 is the collective opinion of the constituting doctors having specialization in different branches and it was issued after examination of the complainant Binu and after verifying all the available documents regarding the treatment produced by the parties as well as forwarded by the Forum. It is pertinent to note that the treatment of the complainant was in the year 1997 and his examination by the Medical Board is in the year 2007. The opinion in Ext.P7 is the collective opinion of experts and it is based on their examination of the complainant in person.
21. In the circumstances and in the light of the direction of the Hon’ble CDRC, Ext.P7 is the only evidence available at this stage for the disposal of this complaint. From the facts and circumstances of this case, we find no reason to discard Ext.P7. On the basis of the above discussion, we are constrained to accept Ext.P7 in which it is clearly stated that the disability of the complainant is not due to the surgery at opposite parties’ hospital and hence point No.1 is found against the complainant.
22. Point No.2: This point is not considered in the light of the findings in point No.1.
23. In the result, this O.P. is dismissed. No cost.
Declared in the Open Forum on this the 8th day of April, 2009.
(Sd/-)
Jacob Stephen,
(President)
Smt. C. Lathika Bhai (Member) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Witness examined on the side of the complainant (after remand):
PW4 : Dr. Thomas Philip.
Exhibits marked on the side of the complainant (after remand):
P7 : Disability Certificate dated 6.03.2007 issued by the Chairman, District
Medical Board, General Hospital, Pathanamthitta.
Witness examined on the side of the opposite parties (after remand):
DW1 : George Varghese.
DW2 : Lenin John Varghese George.
Exhibits marked on the side of the opposite parties (after remand):
B1 : Disability Certificate dated 23.12.2003 issued by the Chairman, District
Medical Board, General Hospital, Pathanamthitta (through PW4).
(By Order)
Senior Superintendent.
Copy to:- (1) Binu, Binu Bhavan, Edathitta.
(2) N.A. Soman, -do. –do.
(3) The Proprietor, St. Mary’s MLS Hospital, Edathitta.
(4) George Varghese, Thayyil Lenin Villa, Edathitta, Kodumon.
(5) Lenin, -do. –do.
(6) The Stock File.
