S MANJUNATHAN Vs. SRIRAM

JUDGEMENT

(1.) This complaint is filed on 9.3.2000 by the above persons praying for passing an order directing the above O. P. to pay Rs.10.00 lakh as damages to him in the ends of justice. Brief facts of the case are, he met with a road accident on 18.3.1997, and got admitted on 19.3.1997 in the O. P.1 Hospital for treatment. Dr. Sriram is the proprietor of it, and Dr. S. Muthu is an Orthopaedic Surgeon there. During treatment, complainant was operated on 24.3.1997 for fracture of lower right femur. O. P.2 had operated the complainant upon open reduction and internal fixation with 95 DCS, and bone grafting done without removing bone pieces. Due to non-removal of it, and negligence of the Doctors, pus was formed. For controlling it, again complainant underwent Exploration/cavage/gentabead Placement Intraosseous on 3.4.1997. In spite of the above treatment, discharge of pus and swelling of thigh continued. Instead of curing the said ailments, the O. Ps. discharged the complainant on 26.4.1997 by giving some advice, and opined to review after 6 weeks. Due to heavy pain and suffering, and huge formation of pus, he again went to O. P.1 Hospital for treatment on 3.5.1997. O. P.2 Dr. Sriram refused to admit and treat him, and sent back without any treatment. This clearly shows the attitude of O. P.1 and O. P.2, and negligence to treat the patient, who approached them for ailments. O. Ps. were fully aware of the wrong done by them while operating the complainant for fracture. Due to their negligence in performing the operation of right thigh, swelling and pus formation continued. Due to refusal to admit and treat by O. Ps. for the 2nd time, without any alternative, complainant went to HOSMAT Hospital, Magrath Road, Bangalore-25, and got admitted there on 5.5.1997 as in-patient. There the complainant was operated on 9.6.1997 by removing the loose concellous screws 1. Cortical screw and gentabead, exacuation of pus and cunratage, and again on 26.5.1997 he was operated and removed the implant with application of skeletal traction over B-B frame done under G. A. on 26.5.1997. Again on 9.6.1997 complainant was operated on right femur illizarav ring fixator application with angulating corrected done under G. A. These treatments were done to cure the pus formation and swelling of thigh due to bad treatment given by O. Ps. and their negligence in conducting operation, and inserting steel blades with loose cancellous screws and cortical screws with gentabead placement and non-removal of bone pieces at the time of operation. Since 21.6.1997, he has been admitted to the Hospital and discharged several times, and so many treatments have been given to him. But, still condition is not improved. Due to negligence and dereliction in service by O. Ps. , while the complainant was admitted in their Hospital, he is suffering even now. Ever since the admission to O. P.1 Hospital till today, he has spent Rs.3,50,000 and underwent lot of pain and sufferings besides mental agony. He has suffered physical disablement, and lost all his activities. Complainant is a Technician by Profession working in M/s. Widia India Ltd. , Bangalore, and his job requires lot of physical work. due to O. P. 's negligence in providing proper treatment he has become weak, and could not discharge his duties. Leg of the complainant is shortened. Complainant is entitled to claim the loss and expenditure incurred by him of Rs.3.50 lakh together with a sum of Rs.6.50 lakh towards pain, suffering, mental agony, improper treatment, physical disability suffered by him as a result of negligence of the O. Ps. in not providing proper treatment. While he was admitted in their Hospital, complainant got issued legal notice on 23.9.1999 to the O. Ps. , calling upon them to pay Rs.10.00 lakh within 15 days from the date of receipt of notice, which they have failed to do. Complainant is a consumer, and there is deficiency in service by O. Ps. in treating him, and negligent, resulting in loss, pain and suffering to him, with physical disability. Cause of action has arisen in Bangalore. Hence this complaint.

(2.) The version of O. Ps. is that there is no case of deficiency in service by O. Ps. from the complainant, and it draws to investigate minute element of medical practice requiring expert evidence, which cannot be gone into by the Commission, and the complaint cannot be entertained, as not tenable, and is liable to be dismissed. O. P.1 is a limited company, and not a proprietorship one. Limited company is a necessary party, which is not arrayed. Complaint is bad for non-joinder of proper party, complaint is assumptive and frivolous. They have admitted the complainant on 18.3.1997 in their O. P.1 Hospital with a history of Road Traffic Accident at 7.30 p. m. and examined him and found it is a known case of Epilepsy. He had sustained comminuted supreacondular fracture right femur type 3 (i. e. , fracture involving distal articular surface of femur which is in many pieces ). Necessary investigations like X-ray, Blood and Urine examination were done, and after obtaining necessary opinion from the Physician and Neurologist, on 24.3.1997 O. P.2 posted complainant for surgery of open reduction, and internal fixation with Dynamic Condylar Screw and plate fixation with bone grafting was done under General Anaesthesia during surgery, one unit of blood was transfused. Pre and post-operative antibiotics were given. Post operative x-ray showed good reduction and plate fixation on 29.3.1997 evening complainant developed temperature of 1000 F and soakage of dressing. By 1.4.1997, he developed purulent discharge from the wound with anemia, jaundice and cough. After explaining the prognosis because of the type and nature of fracture and the consequences involved in the management of infection, and taking necessary consent, on 3.4.1997 wound was explored debridement and lowage of the infected wound was done with antibiotic Gentamycin bead placement under spinal anaesthesia. Antibiotics were continued according to pus culture and sensitivity. Necessary blood transfusion was given as and when required, and twice daily dressing was done regularly. On 23.4.1997, temperature became normal from evening POP Cast A/k right was applied and window was cut to facilitate the dressing as and when required and come to Hospital when there is increase in the discharge of pus or fever, and in case if there were no complaints, to come after 6 weeks. His stay in the Hospital was for 46 days period. On 1.5.1997, complainant's father and brother came and gave history of the complainant suffering from pain and dischrge of pus, and O. P.2 advised to bring the patient for renew review next day. On 3.5.1997 at 4.10 p. m. the complainant visited O. P.2 and got admitted in the Hospital. O. P.2 examined him, and inspected the wound and changed the dressing, and reassured him since the pus is reducing, and the Gentamycinbeads are there, active as antibiotic, and we will wait for some time before going to next phase of treatment if discharge of pus persists. The complainant, after discussing with his relatives, decided to continue dressing, and antibiotics at his residence, and informed that he would come back next week. He got himself discharged at 8.30 p. m. on the same day. Thereafter, he did not visit O. Ps. O. P.2 has treated the complainant with utmost care and diligence, and there is no deficiency in service rendered by either O. P.1 or O. P.2. O. P.1 is a renowned hospital in Bangalore City, and has been rendering good service to the patients, attached to O. P.1. The doctors of O. P.1 have operated on the complainant successfully, and as per the recognized norms of the medical procedure for a surgery. The Doctors in Mallige Medical Centre, have formed a surgical team of physicians, Neurosurgeons and Orthopaedic surgeons etc. , and it is only after the medical team declaring the complainant as fit for surgery, he was operated at the Medical Centre. Hence, there is no negligence or deficiency in service by the Doctors at Mallige Medical Centre and O. P.2. Expert in the field of treatment of fractions have opined "loose fragment of the normal bone during fracture fixation should not be removal as most of the fracture fragments in this case forms part of the articular surface of distal femur and the removal of the same will result in loss of the joint surface and shortening of the limbs. O. P.2 keeping the above in mind, conducted the surgery on the complainant successfully. The complainant was admitted to the Medical Centre for the second time on 3.5.1997 and he got himself discharged on the same day at 8.30 p. m. by stating that he would get dressing done at home, and continue antibiotics. Complainant has not suffered any loss or injury at all during the treatment at O. P. Hospital, and its Doctors, and hence no compensation much less the compensation claimed need to be awarded. There is no cause of action, much less the cause of action averred by the complainant in para 10 of complaint, and hence the complaint is liable to be dismissed in limine. The Complaint with a mala fide intention to make wrongful gain at the cost of O. Ps. , has filed the complaint deliberately to harass the O. Ps. In view of the false allegation made in the complaint, the O. Ps. are entitled for a counter-claim of Rs.10.00 lakh as compensation to the O. Ps. The Commission may be pleased to dismiss the complaint with an exemplary costs, and direct the complainant to pay Rs.10.00 lakh as compensation to the O. Ps. , since complainant has filed the complaint with mala fide intention to make wrongful gain on misconceived facts in the interest of justice.

(3.) The complainant has relied on Exts. C1 to C42 and filed his affidavit and he is cross-examined as C. W.1. O. Ps. have filed affidavit of O. Ps.1 and 2, and they are cross-examined as R. W.1 and R. W.2. Heard both sides. The learned Counsel for complainant has argued that as per paras 3 and 4 of the complaint, the complainant was involved in road accident, and sustained fracture of the leg on 18.3.1997, and he was operated on 24.3.1997 in O. P. Hospital for fracture of lower right leg femur. No proper blood test was done, x-ray photo showed communited fracture. Bone was cut in pieces. For the non union of it, cause is not made out, as per cross-examination. On 3.5.1997, O. P. hospital refused to treat him. He was having severe pain. Pus formation was there. There was swelling thigh. Operation Theatre should have been fumigated to avoid infection. Infection was due to failure of blood test prior to surgery. Before transfusion, blood was not tested. Wound was a closed one. There was no bleeding in the accident. External fixator reduces the chronic of infection. Medical records give the details of period of stay in O. P. hospital by the complainant. For 46 days, bill amount was collected. The complainant is having oozing even now. He went to Hosmat Hospital, as O. Ps. refused to treat him on 3.2005. External fixator was fixed there. Even now, his right lower limb is shortened-physically handicapped, preventing him to exert physical force to work. It is all due to the negligence and deficiency in service by O. Ps. in treating him. He has suffered a lot, and even now suffering. Compensation claimed deserves to be awarded, written argument is also filed.