N DURAISAMY Vs. M RAMDOSS

JUDGEMENT

(1.) THIRU Justice K. Sampath, PresidentThe complainant in COP No. 123 of 1997 on the file of the District Consumer Disputes Redressal Forum, Coimbatore, is the appellant herein. The case of the complainant was as follows: He met with an accident on 17.7.1995 and got admitted at the Kovai Medical Centre Hospital. The doctor diagnosed that there was weakness of L2, L4, L5 and S1 right side with severe right side sciatica and that there was acute disc prolapse in the body of the complainant. The doctors advised that decompression followed by stefee -plating with bone grafting had to be done immediately and for decompression for fixing a plate in order to stop severe pain suffered by the complainant. The complainant wanted to have a second and correct opinion. He got admitted with the 2nd opposite party on 21.7.1995 itself. He was examined by the 1st opposite party, Dr. M. Ramdoss, Medical Superintendent and Orthopaedic Surgeon. He diagnosed acute lumber disc prolapse and advised the complainant for immediate surgery on his back for insertion of a plate. The complainant agreed and it was done. He was discharged on 20.8.1995 with advice to be in absolute bed rest. On 4.9.1995 and 12.9.1995 he had check -ups with the 1st opposite party who stated that the complainant was suffering due to spondylo sis and he had to undergo a surgery immediately. The complainant wanted to have the surgery after 23.11.1995 being an auspicious day as per astrology. He was admitted in the 2nd opposite party hospital on 23.11.1995. The 1st opposite party performed the surgery on 1.12.1995 and advised the complainant to take complete rest due to the insertion of plate. He was discharged on 25.12.1995 and asked to come for review after nine weeks. He was in total bed rest till 23.2.1996. From 23.2.1996 to 7.3.1996 he was taking treatment after check -up as in -patient in the 2nd opposite party hospital. He was advised to review his condition every month. The complainant was also hopeful that the plate was inserted in his back and so his inability and disability would be rectified. However, even after his discharge from the 2nd opposite party hospital on 7.3.1996 he had severe pain on his hip joints, buttocks, back thighs, calf and foot. He consulted Dr. Christopher who after a thorough investigation and check -up advised an X -ray being taken. From the X -ray and the report of Dr. Christopher it would be seen that no plate was inserted in his back viz., lumbar region by the 1st opposite party at the time of surgery on 1.12.1995 in the 2nd opposite party hospital. The complainant sent a letter dated 25.4.1996 to the 2nd opposite party asking them to send the X -ray relating to his injuries and the connected reports relating to the surgery done and the treatment given to him and also after the surgery. The 2nd opposite party, even after receipt of the said letter, did not send any reply nor send the documents demanded. Later on the complainant was admitted in Kovai Medical Centre Hospital on 1.5.1996 and underwent a second surgery on 3.5.1996 in order to cure the infirmities which were not rectified by the opposite parties. He was discharged on 9.5.1996. He had incurred Rs. 4 lakh for surgery and medical expenses. Because of the negligence and carelessness of the 1st opposite party the complainant was driven to have a second surgery. After the second surgery, the complainant had improved a little and was taking treatment regularly. The surgery was not done as per the diagnosis made by the 1st opposite party. The standard of care, caution and skill on the part of the opposite parties, particularly the 1st opposite party had been grossly wanting. The complainant was working as an Assistant Engineer in the Tamil Nadu Electricity Board at Tirupur drawing a salary of Rs. 10,000 per month. He lost his salary from August 1995 till date. The complainant was walking with very great difficulty due to the non -fixation of compression plate on his back. After the filing of this complaint, the complainant was admitted in Apollo Hospital, Chennai on 14.8.1997 and had a surgery on 16.8.1997 and discharged on 27.8.1997. Thus the opposite parties had committed deficiency in service causing mental agony and monetary loss. To the notice dated 28.1.1997 on behalf of the complainant, a reply dated 25.2.1997 was received from the opposite parties denying their liability. In these circumstances, the complaint came to be filed.

(2.) THE version runs as follows : On 21.7.1995 the complainant reported after a four -day -old accident to the 1st opposite party who diagnosed that the complainant had lumbar disc prolapse with hip pain on the left side. A thorough check was done and the complainant was advised absolute bed rest with anti -inflammation drugs. He was in the 2nd opposite party hospital till 20.8.1995 on which date he was discharged. He visited the opposite party s clinic on 4.9.1995 and complained of persistent pain. Only at that time the complainant was advised to have an operation of spinal fusion with bone grafting. The operation did not involve use of any plates. The complainant once again visited the 1st opposite party on 17.11.1995 and he was given the very same advice as before. The complainant was admitted in the 2nd opposite party hospital on 23.11.1995 for surgery and he was operated upon on 1.12.1995. The nature of the operation was decompression by laminectomy and iliac bone grafting. The procedure was also called spinal fusion. The complainant was advised bed rest for three months since the spinal fusion procedure performed on the complainant normally required three months bed rest for enabling better union of bone grafting and to fully realize the outcome of the surgery. The complainant was discharged on 25.12.1995. He again came on 23.2.1996. An X -ray was taken and it was found that the spinal fusion was very good. As a result, the complainant was advised to take up walking with limbo sacral belt. He was discharged on 7.3.1996. The surgery did not involve insertion of any plate. It was performed in a proper manner and to the best of the diagnosis of the opposite party. Any operative procedure involved slow recovery and it could not be stated as a reason for any claim against the 1st opposite party. At no point of time did the 1st opposite party tell the complainant that a plate would be inserted. The opposite parties were not responsible for any treatment that the complainant had undertaken in any other hospital, as they had performed their functioning in the matter required with reference to the patient. The circumstances under which the complainant underwent the second surgery were not known. In any event, that would not be a ground for making a claim against the opposite parties. There was no deformity or disability. The complainant complained of pain and it was only subjective. It could neither be proved nor disproved. The complaint of pain was made only with mala fide intention to gain monetary benefit. The complaint was liable to be dismissed.

(3.) BEFORE the District Forum, on the side of the complainant, Exs. A1 to A33 were marked while on the side of the opposite parties Exs. B1 to B7 were marked.