B KAILASH RAO Vs. Y RAKSHIT

JUDGEMENT

(1.) AGGRIEVED by the order of the District Consumer Forum, Visakhapatnam in C.D. No. 375/1999 dated 18.4.2001, the present appeal has been filed under Section 15 of the Consumer Protection Act, 1986 .

(2.) THE facts leading to the filing of this appeal are set out as hereunder : The complainant was admitted at first opposite party on 1.6.1997 as he sustained fracture in an accident. The second opposite party examined the complainant, who is the doctor of opposite party No. 1 hospital and stated that he sustained compoundable fracture of inter -condular with ulna 1/3rd fracture of his left elbow and assured that the complainant will gain normal function of his left elbow. On 1.6.1997 the second opposite party applied plaster of paris, in short POP cast and after removal of POP cast an operation was conducted by the second opposite party under general anaesthesia by fixing K. wire and Y plate to unite the fragment of lower and humerus and to unite the ulna fragment and applied POP cast after surgery. Complainant was discharged on 20.6.1997 from the 1st opposite party hospital and he continued the treatment and followed the post -operative periodical check -ups. On 25.7.1997 the POP cast was removed at first opposite party hospital on the advice of second opposite party. The grievance of the complainant is that after removal of POP on 25.7.1997 there was foul smelling with pain and swelling. The complainant was kept under antibiotics and dressings and second opposite party left to Russia for a period of two months without giving proper instructions and guidelines and also did not choose to refer to any doctor to manage post -operative complications. The complainant contended that post -operative complications arose on account of failure to exercise reasonable care and professional treatment. After return of the second opposite party from Russia the complainant got admitted as in -patient at first opposite party hospital on 24.10.1997 and second opposite party removed the plates which were fixed to unite the fracture fragments and applied POP cast and kept the complainant under antibiotics. Subsequently the POP cast was removed and non -union of proximal ulna fracture with dislocation of superior radio -ulna joint was noticed. First and second opposite parties prolonged the management without any progress for a period of 8 months without exercising reasonable care in treating the complainant with professional efficiency although the complainant paid the necessary fees as demanded by the opposite parties. It is the case of the complainant that because of negligence and deficiency of service on behalf of opposite parties 1 and 2 there is non -union of ulna fracture fragments and developed Sudecks Atrophy with dislocation of the superior radio ulna joint which was diagnosed in MIOT hospital, Madras, when he approached them on 26.1.1998. The complainant had to undergo a second operation for fixation of ulna by corrective osteotomy, lengthening of the ulna and bone grafting with plate osteosynthesis (L) ulna. He got admitted in MIOT hospital on 7.2.1998 and underwent suggestive open reduction surgery on 19.2.1998 and was discharged on 3.3.1998 with proper post -operative care and periodical check -up after surgery. According to the advice of the doctor the complainant attended regular physiotherapy to achieve better range of movement of elbow joint. The range of movement improved after physiotherapy and he got admitted on 11.3.1999 at MIOT hospital as in -patient for removal of implant of left ulna and was discharged on 17.3.1999. It is the case of the complainant that due to negligence and deficiency of service of second opposite party, he had to undergo a second operation at Madras and second opposite party is liable to pay compensation for the mental agony suffered and, therefore, approached the District Forum for appropriate relief.

(3.) FIRST and second opposite parties filed counter and denied any medical negligence on their part. Second opposite party is insured with opposite parties 5 and 6 and hence they were impleaded 5th and 6th opposite parties contended that there is no professional negligence on the part of the second opposite party and hence they are not liable to pay any amount to the complainant. The claim against third and fourth opposite parties is not pressed.