K. SRIKUMAR vs K. MUTHATHAL

-THE complainant''s case is that she slipped down from steps on 22.1.1997 and she was taken to KHM Hospital at Anna Nagar, where reduction was done and she was discharged on 23.1.1997. She developed pain and swelling in the right elbow and, therefore, she consulted the 1st opposite party and paid him a sum of Rs. 100/- towards consultation fees. X-ray was taken at Anna Nagar X-rays, Anna Nagar Western Extension. On seeing the X-ray, the 1st opposite party stated that there was fragmentation of bone in the right elbow which has to be removed by a surgery. THErefore, the complainant was advised to get herself admitted in the 2nd opposite party hospital. Hence, the complainant agreed for surgery. THErefore, the complainant paid a sum of Rs. 5,000/- to the 1st opposite party. She further paid a sum of Rs. 5,100/- towards other expenses. She was discharged on 9.2.1997 from the Nursing Home. She attended the 2nd opposite party Nursing Home daily for post-surgery treatment. She later took an X-ray on the advice of the opposite parties and the Radiologist gave opinion that there was "fracture of proximal end of right radius with displaced fragments seen". Thus the complainant came to know that the fragmentation of bone was not removed at the time of surgery for which purpose she underwent operation in the 2nd opposite patty. She consulted the 1st opposite party and enquired about the non-removal of the fragmentation of bone, but she was not given a convincing reply. Thus there was negligence and deficiency in service on the part of the opposite parties. THErefore, the complaint has been filed.

THE 1st opposite party contended that the complainant''s husband''s friends were working at the ESI Hospital and through them the complainant approached this opposite party for opinion regarding the injury sustained by the complainant. It was then suggested that the complainant undergoes surgery at the Government Hospital since they were eligible for free treatment. A week after that, the 1st opposite party saw the complainant''s husband at the 2nd opposite party''s hospital and came to know that the complainant''s husband is a close friend of the owner of the 2nd opposite party hospital. THE 1st opposite party does not have any consultation at his residence. He is residing at No. 1854, 6th Avenue, Anna Nagar (West), Chennai. It is not true to say that the complainant consulted the 1st opposite party at his residence and paid Rs. 100/-. THE 1st opposite party never advised the complainant to take X-ray at Anna Nagar. On seeing the X-ray this opposite party found that comminution of bones were found in the right elbow and, therefore, suggested surgery as otherwise it may cause stiffness and disability in the right hand. Further, he advised surgery only at the Government Hospital. THE nature of the injury sustained is a fracture in the right elbow which is medically called as comminuted fracture head of the radius. One of the fragments was entrapped in soft tissue of the right forearm. THErefore, this opposite party said that he would remove all the fragments except one fragment lying in the soft tissue since the removal of the same may damage the nerves in that area. This opposite party never received Rs. 5,000/- from the complainant or the complainant''s husband. THE complainant was admitted on 5.2.1997 and the surgery was performed on 6.2.1997 and she was discharged on 9.2.1997. All the fragments of the bone except one fragment embedded in the soft tissue near the median nerve were removed. Leaving the fragment would not cause any hindrance to the normal functioning of the hand or blood circulation of the hand. On the other hand, if it is sought to be removed, it may damage the essential nerves and affect the movement of the hand. THE fragments removed were handed over to the complainant''s husband. THE X-ray and the report dated 22.2.1997 only reflect that the fragment of bone was not removed by the opposite party. If the X-ray taken before the surgery and the X-ray taken after the surgery are compared, it would clearly prove the truth of this opposite party''s version. As the complainant underwent reduction at KHM Hospital, this opposite party refused to give a certificate. THErefore, enraged by the same, the present complaint has been filed. THE operation was performed free of cost. THEre is no negligence on the part of the 1st opposite party. The 2nd opposite party contended that the complainant approached the 1st opposite party at whose instance for the purpose of utilising the surgical facilities and post-operative care, the complainant was admitted in the Nursing Home of the 2nd opposite party. All through she was under the care of the 1st opposite party. There was no negligence or deficiency in service on the part of the 2nd opposite party. The 1st opposite party is not attached to the Nursing Home of the 2nd opposite party. Insofar as the 2nd opposite party is concerned, all necessary treatments were given by them to the complainant. The post-operative period was uneventful. One of the fragments had embedded itself in the flesh near the median nerve. It is to be pointed out that the complainant has not taken any further steps to remove the said fragment. The other allegations are denied.

The lower Forum accepted the complaint and directed the 1st opposite party to refund a sum of Rs. 10,100/- and also pay a sum of Rs. 3,000/- towards purchase of medicines and incidental expenses and a sum of Rs. 10,000/- towards compensation for mental agony besides cost of Rs. 1,000/-. Aggrieved by the same, the present appeal has been filed.

WE are satisfied that the order passed by the lower Forum cannot be sustained at all. It is to be pointed out that the complainant has not produced any expert evidence on her side either to say that there was any flaw in the operation and treatment or to prove that the accepted and standard of practice and procedure was not followed in her case. Admittedly, the complainant had a fall on 22.1.1997 and sustained fracture of right elbow. Even according to her, she was taken to KHM Hospital, Anna Nagar where reduction was done and she was discharged on 23.1.1997. The complainant has not chosen to produce the discharge summary issued by KHM Hospital. There is no reason given as to why the said discharge summary or the X-ray then taken could not be produced. If it had been produced, it would definitely go a long way in establishing her case. The fact that it is not produced would only go to show that the complainant is only trying to suppress certain materials from the purview of the Forum. Her case is that she had pain and swelling in the right elbow even after reduction and, therefore she consulted the 1st opposite party and an X-ray was taken and on seeing the X-ray, the complainant was informed by the 1st opposite party that fragmentation of bone was found in the right elbow and that the fragmentation should be removed. It is the admitted case that she underwent a surgery for the removal of the fragmented bones. There is no dispute that the 1st opposite party removed the fragmented bones. But, it is the admitted case of both parties that one of the fragmented bones was not removed at that time. According to the 1st opposite party, the said fragmented bone was lodged in the soft tissue and that the 1st opposite party felt that the removal of the same was not advisable since it was lodged near the median nerve and that attempting to remove it may affect the nervous system thereby leading to the restriction in the movement of her right arm. In the discharge summary it is noted by the doctor as follows: "Excision head of radius right done with removal of commuted bone under G.A. and T.Q. control Butterfly fragment left alone". A fragment had got displaced into the arterial compartment and entrapped in the soft tissue near the median nerve. Hence it was not removed. The rest of the head of radius was examined and the wound cleaned. Therefore it is clear that the doctor removed all the fragmented bones except that was found lodged near the median nerve. It is the case of the opposite party that it was not advisable to remove the same and leaving that bit there would not in any manner hamper the free movement of the arm. As against the stand of the 1st opposite party, to rebut the same, there is no contra evidence in the shape of an expert opinion nor any medical authorities are quoted by the complainant. It is to be pointed out that the complainant has not chosen to undergo any subsequent operation for the removal of the said fracture till the filing of this complaint. This conduct on her part would only underline the fact that what is stated by the 1st opposite party is the correct position. She has not chosen to get herself examined by a doctor before filing the complaint nor any X-ray has been produced to show the position as on date. She has not examined herself before the lower Forum to show that the movement of her right arm is in any manner affected or that she is experiencing any difficulty in the movement of her right arm. From the very case of the complainant it is clear that she has been doctor-shopping, in the sense, she has been going from one doctor to another. But she has failed to produce any material convincing enough to show that the allegations are true. The disability alleged is not substantiated. If at all any fragmented bone has been left, it is because of the nature of the injury and the location or the place where it is lodged. It is due to the severe nature of the injury sustained by her the bone has got fragmented and a piece of it got lodged in the soft tissue near the median nerve. There is nothing on record to link it to any act of deficiency or negligence on the part of the opposite parties. The fragmentation of bones has also taken place due to the fall. At the time when reduction was first done, the doctor who has attended to it has not either looked into it or has not done the proper procedure. Curiously enough, the complainant has not stated anything about the said doctors. On the other hand, the 1st opposite party, after taking X-ray and after finding that there was fragmentation of bones due to the injury sustained by her, has suggested that the fragmentation be removed and has accordingly taken steps to conduct a surgery to remove the fragmentation. For a doctor who had removed the other fragmentations it would not have been difficult to remove the leftout one also. But he did not remove that bone because the removal of it was likely to affect the median nerve which would thereby result in restriction of the movement of right arm. Therefore, the doctor, exercising his judgment and discretion, has thought it fit not to remove the bone. That cannot be found fault with or called in question by the complainant. More so when she has not examined any expert, it is not her case that the surgery was performed negligently or that proper procedure was not followed. Her only case is that one of the fragments was left inside and all the fragments were not removed. That has been properly explained by the doctor who is an expert. The complainant for her part should have examined an expert to establish that even if the fragment gets lodged in the soft tissue near the median nerve, it should be removed without any injury to the patient. The nature of medical profession is such that there are many courses of treatment. The approach by each doctor will be different. The diagnostic procedure may vary. The treatment given to a patient differs from man to man. The kind of treatment that suits a person may not suit another person. It is for the doctor treating the patient to decide the best course of action and if he has done the job exercising due diligence with such standard of care that is required of him, then, there ends the matter and the doctor cannot be hauled up on the dock. Ultimately every thing depends upon the discretion and judgment of the doctor concerned. Unless it is shown that the doctor has failed to opt a particular precaution or failed to follow the standard procedure and such failure has led to the ultimate result or complication, the complainant cannot hope to substantiate his case. Here, though allegations are made about the complainant suffering from pain and some disability even after the surgery, the complainant has not chosen to examine herself or any doctor after that nor has produced any report from any other doctor. Even the X-ray is not produced to show or establish that leaving a fragment of bone has in any manner caused disability or hampered the free movement of her arm.

THEREFORE, in fine, it has to be said that there is absolutely no material to uphold the case of the complainant. The lower Forum has not viewed the matter from the proper perspective and has erred in granting an award. In the circumstances, we are satisfied that this is a fit case wherethe order of the lower Forum has to be set aside. In the result, this appeal is allowed, but in the circumstances, without costs. The order passed by the lower Forum is set aside. The complaint will stand dismissed but without costs. Appeal allowed.