GIANPAL ANAND Vs. YAMIN AND ORS.

JUDGEMENT

(1.) THE appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 5.1.2011 of District Consumer Disputes Redressal Forum, Ludhiana, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal. The complainant Gianpal Anand has filed the complaint under Section 12 of the Consumer Protection Act, 1986 on short, "the Act") against the OPs on the averments that his left leg was fractured on 10.4.2008, when he suddenly fell from the bed. He was undergoing unbearable pain in his lower left limb and could not put on any weight on it. He was taken to the OPs and admitted in DMC, Ludhiana, vide admission No. 2008 -12064 CR No. 2008 -34414 under Dr. Mohd. Yamin of Orthopaedic Department. OP No. 2 advised operation and diagnosed closed fracture subtrochanteric region femur left side. OP conducted open reduction and internal fixation of fracture with Recon (zimmer) (12 x 38) (2 cervical screws) (2D) on 11.4.2008. OP assured the complainant to perform the operation of his left leg and thereby he would be able to walk within a week therewith. The condition of the complainant rather worsened after, operation and his wound started bleeding. OPs and nursing staff did not pay any heed to the complainant, whenever, the complainant inquired from OP No. 1 about the cause of bleeding, it was taken in a casual manner only. The condition of the complainant started worsening as the zimmer came out of his operated left leg. The complainant later on came to know that said zimmer has not been properly fixed in the left leg. Instead of giving any conciliation to the complainant, the OP No. 1 showed rough behavior to the complainant. Bed rest was recorded on the OPD card of the complainant in a perfunctory manner by OP No. 1. The complainant eventually approached Mittal Nursing Home and Trauma Centre, Kithclu Nagar, Ludhiana on 27.4.2008, where Dr. Anil Mittal examined the complainant and conducted his x -ray and blood tests and found his HB level as 6 mg. Six blood bottles were transfused to the complainant to save his life thereat. After x -ray examination, it was revealed that zimmer has not been properly fixed by OP No. 2 in the broken leg of complainant at the time of operation. The blood kept on oozing on account of negligent act on the part of OP No. 2. Dr. Anil Mittal also informed the complainant that the fixed zimmer was not compatible for the said fracture and only plates could cure the said fracture and plates should have been fixed rather than the zimmer therein. The complainant has alleged medical negligence on the part of OPs, as they fixed the zimmer in stead of plates in a cursory manner on the complainant. The complainant alleged in the complaint that OPs failed to adopt the correct line of the treatment by fixing zimmer instead of plates in the left leg of the complainant. Zimmer was not properly stitched and it came out causing bleeding to the complainant. The complainant had to incur Rs. 2 lac on his treatment. The complainant has, thus, filed the complaint claiming compensation from the OPs of Rs. 5 lac along with interest @ 24% p.a. on account of medical negligence exhibited by the OPs in the above treatment of the complainant.

(2.) UPON notice, OP Nos. 1 and 2 filed their separate written reply and contested the complaint of the complainant by raising preliminary objections that the present complaint is not maintainable. The complex question of facts and law are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Forum. The complainant has failed to prove as to what ought to have been done and what has not been done by the OPs in this case. The claim of the complainant is based on exaggeration and lies only. No specific allegation of negligence has been levelled by the complainant against the OPs in the complaint. It was admitted by OPs that complainant was admitted in the Department of Orthopaedic through emergency, vide C.R. No. 2008 -34414 on 10.4.2008. Required investigations were got done and he was operated in the form of open reduction and internal fixation with recon nail made by zimmer on 11.4.2008. The patient became restless and was talking incoherently on 12.4.2008. After ruling out medical basis for this condition, psychiatric consultation was taken, which revealed that he was a chronic alcohol abuser and was suffering from alcohol dependence syndrome and was currently on with withdrawal delirium and was managed accordingly. It was denied that no care of the complainant was taken by OPs, while treating him. It was admitted by OPs that on 22.4.2008, the complainant visited Orthopaedic OPD for removal of sutures at DMC. On inquiry, it was found that complainant fell from the bed at home. The sutures were removed and wound was healed well. The x -ray report showed that the fracture had displaced and the complainant was advised readmission to adjust the fracture, but he refused for it. It was denied that Dr. Mittal intimated the complainant that the fixed nail (zimmer) was not compatible for the said fracture and only plates could cure the said fracture and plates should have been fixed in place of nail (zimmer). The OPs further averred that, as per Medical Standard Practice published in Journal of the American Academy of Orthopaedic Surgeons Vol. II, No. 2, March/April 2003, it is laid down as under:

(3.) THE complainant tendered in evidence the affidavit of Kaplesh Dubey (Clerk), Garg Medical Chemist and Druggist Ex. CW -1/A, affidavit of complainant Ex. CW -2, affidavit of Dr. Anil Mittal Ex. CW -3 along with copies of documents Ex. CW -4 to Ex. CW -20. As against it, OPs tendered in evidence affidavit of Rajiv Khanna, Divisional Manager, United India Insurance Company Ex. RW -1/A, affidavit of Dr. Mohd. Yamin, Professor and Head of Department of Ortho Ex. R -1/A, affidavit of Prem Kumar Gupta, Secretary, Managing Society Ex. R -2/A along with copies of documents Ex. R -3 to Ex. R -9. On conclusion of evidence and arguments, the District Forum, Ludhiana, dismissed the complaint of the complainant by virtue of order dated 5.1.2011. Dissatisfied with the order of the District Forum, Ludhiana dated 5.1.2011, the complainant now appellant has preferred this appeal against the same.