K.K. Radha vs G.U. SEKHAR

THIS complaint is filed under Section 17 of the Consumer Protection Act claiming compensation to the tune of Rs. 2 lakhs for the loss and injury suffered by the complainant as a result of negligence in the treatment of the first opposite party. Subsequently an amendment was filed seeking to enhance compensation to Rs. 4,50,000/-.

THE material allegations in the complaint are as follows: The complainant was admitted to the B.K.M. Hospital, Payyannur on 21.5.1990 consequent on a fracture sustained on the lower part of her left leg above the ankle. The second opposite party is the Managing Director of the said Hospital. The complainant was examined and treated by Dr. Sekhar, the 1st opposite party at the hospital. In accordance with the opinion given by the first opposite party the complainant''s left leg was operated upon by first opposite party on 31.5.90. The left leg was put in plaster. She was discharged on 10.6.90 with an advice to take bed rest for another fifty days. The plaster was removed on 30.7.90 and it was then noticed that in the place where operation was conducted an abscess had developed. The complainant''s husband who accompanied her enquired about the same. He was told that the same would disappear gradually and no further treatment was necessary. But on an examination of the X-ray photo taken, it was seen that there were foreign substances left inside the leg. Drill bits were found hanging from a twisted wire with a view to take a second opinion. The complainant''s husband took the complainant to an Orthopaedician in Mangalore namely Dr. Usman with a referal letter from Dr. Kochukrishnan who is also a doctor working in the hospital of 2nd opposite party. Dr. Usman examined the complainant on 30.7.90. He advised emergency operation to remove the foreign bodies found inside the leg to save her leg from further damage. The complainant returned to Payyannur with a letter from Dr. Usman to Dr. Kochukrishnan on the same day and he also advised that the complainant may act in accordance with the opinion given by Dr. Usman. Accordingly the complainant was admitted to the S.C.S. Hospital at Mangalore and her leg was operated upon again on 1.8.90 by Dr. Usman. Her leg was again put in plaster and she had prolonged hospitalisation. In the complaint it was alleged that in the treatment given to the complainant, Dr. Sekhar the 1st opposite party was totally negligent. The operation was done in a totally callous and negligent manner. It was also alleged that the complainant''s husband was directed to purchase compression plate - 8 holes screws etc. as per a prescription given to this effect in the handwriting of Dr. Sekhar and accordingly compression plate and screws were purchased on 22.5.90 and handed over to him. However the plate and screws were not used and neither the complainant nor her husband was informed anything about it. It was not known what was done with the same. The X-ray film clearly revealed this. The treatment administered on the complainant was totally inadequate. The standard of care and skill expected of a doctor was grossly wanting. Dr. Usman had to remove the extraneous materials which were found inside the leg by operation and the operation was conducted by Dr. Usman was necessitated on account of the negligence of the treatment at the Hospital of the opposite parties.

The complainant was treated as an inpatient at the S.C.S. Hospital, Mangalore by Dr. Usman from 31.7.90 to 20.8.90. Thereafter the complainant was discharged with plaster cast and with advice of review after one month from the date of the operation and she came to her residence at Payyannur after discharge on 20.8.90. She again went to the S.C.S. Hospital, Mangalore as per the advice and was admitted on 5.9.90. The plaster on the leg was recast and she was discharged with a new plaster cast on 7.9.90 and she was advised to come after 6 weeks for review. From the treatment of Dr. Usman it was revealed that the operation conducted by the opposite parties Hospital was illadvised and unnecessary. Strong doses of Antibiotics injection were administered to the complainant for about 25 days and it completely shattered her health and weakened her both mentally and physically. But for the treatment given by Dr. Usman at S.C.S. Hospital, the complainant could not have recovered at all. It would have even resulted in permanent loss of use of her leg. The complainant''s leg will continue with plaster cast for another six months. She was advised to walk with the help of crutch. She had suffered severe pain and discomfiture. All this was due to the negligent treatment at the hospital of the opposite parties.

THE complainant issued a notice through a lawyer and the second opposite party sent a reply containing false allegations. She also alleged that she was likely to be permanently disabled on account of the negligent, defective and inadequate treatment given to her in the opposite parties'' Hospital by the Doctors employed there. THE Doctors who are responsible for the same are primarily liable for the pecuniary loss, injury and disability sustained by the complainant. THE Institution is vicariously liable for the negligence of the employees. She had to spend a total amount of Rs. 50,000/- towards medical expenses. For the pain and suffering shock and mental agony and loss of amenities, she is limiting her claim to Rs. 50,000/- and for the continuing disability she is estimating her loss at Rs. 1,00,000/-. She also craved leave of this Commission to permit her to amend the application in case her condition is not improved after the treatment is completed by including claim for enhanced compensation. Though notices was issued to both the opposite parties notice could be served only on the second opposite party. The notice issued to the first opposite party was returned with endorsement that addressee left the place and his address was not known. Notice was again issued at the address furnished by the second opposite party but that also could not be served and was returned. In the circumstances the complainant prayed for substituted service on the first opposite party and we allowed the same and a paper publication was effected in Mathrubhoomi Daily in its issue dated 16th January, 1991. That is marked as Exbt. P12.

THE second opposite party filed a version denying the allegations contained in the complaint. It was contended that the complainant is not a consumer. It was also alleged that there was no hiring of service for consideration of the second opposite party by the complainant and on this ground itself the complaint is liable to be dismissed. It was admitted that the complainant was admitted to his hospital on 21st May, 1990 and the first opposite party treated the complainant. It was averred that the second opposite party was not aware of other allegations though he admitted that the complainant was operated on 31st May, 1990 at his hospital and her left leg was put in plaster and she was discharged on 10th June 1990. It is also admitted that the complainant was an inpatient in the hospital for 21 days and that the complainant came for review on 30.7.90 and she was examined by Dr. V. Kochukrishnan on that day since the first opposite party was not available and Dr. Kochukrishnan referred the case to Professor P.K. Usman on the same day. It was also stated that Dr. Kochukrishnan is not an employee under the 2nd opposite party. It is further stated that the allegations made in paragraph 3 that the operation performed by the lust opposite party was totally negligent and necessary and proper care and skill which is expected of a prudent man has not been exercised by the 1st opposite party cannot arise for consideration. THE second opposite party''s institution has not employed the 1st opposite party and there was no employer-employee relationship. THE first opposite party is a free lance doctor having independent practice. THE only thing that the 1st opposite party had done was getting the complainant admitted to his hospital and treating her. THE operation was done in a very careful manner and there was no negligence at all. Before the operation was conducted consent letter for conducting the operation was given by the complainant. It was also countersigned by the husband of the complainant. THE first opposite party has also brought to his task a reasonable degree of skill and knowledge. THE opposite parties are not jointly and severally liable to pay compensation and the complaint is liable to be dismissed. On behalf of the complainant, the complainant was examined as PW 1 and her husband was examined as PW 3. Dr. Usman who is a Professor in - Orthopaedics in the Kasthurba Medical College, Mangalore who treated the complainant on the reference made by Dr. Kochukrishnan was examined as PW 2. Exbts. P 1 to P 13 were marked on behalf of the complainant. The material objects produced were marked as Exbt. XI and X-rays taken were marked as X2 to X16. On behalf of the second opposite party he was examined as RW1. Dr. Kochukrishnan who attended on the complainant after she reported for rev an. was examined as RW 2 and Ext: s. R1 to R6 were marked on behalf of the opposite parties. The questions that fall for consideration are: (1) Whether the 1st opposite party acted negligently or without due care and skill in treating the complainant and consequently whether there is deficiency in service of the first opposite party in treating the complainant ? (2) Whether there is employer-employee relationship between the first opposite party and the second opposite party ? (3) Whether the complainant is entitled to any reliefs ? (4) The order as to costs.

THE first question to be considered is whether the first opposite party was negligent in treating the complainant and whether he exercised reasonable professional skill and care expected of a prudent doctor. THE evidence of PW 1 shows that she was admitted to the hospital of the second opposite party on 25.5.90 consequent on a fracture of leg. As PW 1, she deposed that the first opposite party examined her and told her that she had to undergo an operation. A prescription was also given to her for purchase of steel plate and screws. Exbt. P 1 is said prescription. She was operated on 31.5.90 and was put on a plaster. She was inpatient for 21 days in the hospital of 2nd opposite party. She had excruciating pain on he left leg. She reported the matter to the first opposite party and he said that it was only ordinary pain and it would disappear in course of time. She was discharged on 10.6.90 and was directed to report after 2 months. She had infection. Dr. Shekhar came to her house and cut the plaster and removed puss and she was asked to take 4 injections daily. After 50 days she went to the hospital to remove the plaster. THE first opposite party was not at the hospital. RW 2, Dr. Kochukrishnan who was in the hospital examined her. He enquired whether plate and screws were not purchased, as the X-ray revealed that plate was not used. THEre was infection and he give a reference letter to Dr. Usman of Kasthurba Hospital. Accordingly she went to Mangalapuram met Dr. Usman and Dr. Usman examined her. Dr. Usman told her that there was infection and an emergent operation was required. She was not ready to undergo the operation on that day and therefore she went home and came to Mangalapuram again on 31.7.90 and was admitted to the S.C.S. Hospital. Dr. Usman (PW 2) conducted operation on 7.8.90. Drill bits and twisted wire were found inside the leg and he told PW 1 infection was due to this. She was an inpatient in S.C.S. Hospital for 21 days. She was asked to report again after 2 months for review. She had again infection and therefore she had to go from Payyannur to Mangalore atleast about 75 times by taxi. After removal of plaster again she was admitted and she had to undergo 4 operations four times. Puss was removed and plaster was put four times. Bone got damaged at the place were operation was conducted by the first opposite party and she had to undergo a bone grafting surgery. She had excrutiating pain. X2 to 16 are the X-rays taken from the second opposite party''s Hospital as well as S.C.S. Hospital. Exbt. P 3 is a referal letter given by Dr. Kochukrishnan to Dr. Usman. Exbt. P 4 is a letter given by Dr. Usman to Dr. Kochukrishnan. P 6 and P 7 series are the medical prescriptions inclusive of bills. She deposed that she is entitled to get compensation claimed in the complaint and it was due to negligence of the first opposite party that she had to undergo treatment of Dr. Usman.

P 13 is a bill issued from S.C.S. Hospital which was partly paid. She deposed that she had difficulty in walking and she could walk only on a crutch. She also stated that previously she was using a steel support, and that even now she got difficulty to walk and she was not able to give any weight to the left leg. She was also not able to attend to house-hold affairs and all this was due to callous negligence of the first opposite party in treating the complainant and conducting operation on her. She further stated the RW 2 and the first opposite party are employees of the second opposite party''s hospital. In the cross examination, she stated that no consent was taken from her at the time of operation by the first opposite party. The most important evidence in this case is that of Dr. Usman who is the Professor of Orthopaedics in Kasthurba Medical College. He was examined as PW2. He stated that the complainant came to him with a letter from Dr. Kochukrishnan and he examined her and found she had an oblique communicated fracture of the tibia at the junction of lower and middle 1/3 of the shaft of the tibia. He stated that X-ray showed evidence of metalic implants in the bone indicating open reduction and internal fixation of the fracture. The complainant had evidence of infection at the fracture side and the mobility at the fracture side indicating a delayed union of the fracture side with super added infection. According to him open reduction of the fracture is the probable cause of infection. Open reduction means the surgery that was done. He also stated that the complainant was not suffering from metabolic disease or pressure and usually such fractures unite within about 3 to 4 months if there are no complications. He advised removal of implants, drainage of puss and plaster-cast. He further stated that metalic objects were -(1) cortical screw (2) broken drill bits and two pieces of S.S. Wire. He also deposed that on the basis of X-rays, he would have treated the complainant without any surgery. Since, the complainant had evidence of infection in the bone, she was given plaster-cast dressings, antibiotics and latter a bone grafting surgery was done since the fracture failed to unite. Again she was given plaster cast and antibiotics and she was advised to walk on crutchers till the fracture united and later she was given a brace as a support to the leg. Surgeries were conducted in S.C.S. Hospital, Mangalore. 4 surgeries were done for removal of puss. Exs. 8 to 15 were taken at his instance for the treatment of the patient. He further stated that any metalic implant can give rise to infection in bone. He stated he examined the patient recently who visited him several times and she got evidence of a bad scar and she got thickening of the bone due to osteonilitis. She also got evidence of restriction of movement of ankle joint and also mild bowing of the leg with minimal shortening of the leg. According to him these are permanent disabilities. The percentage of disability cannot be assessed since there is bad loose on a portion of the limb. The S.S. wire is applied and twisted on to the bone at the fracture side. According to him this type of treatment was done for the treatment of fractures in other parts of the body. He stated that S.S. wire is also a mode of treatment of fractures. He personally did not use S.S. wire in the treatment of fractures of the tibia. According to him this S.S. wire fixation was not adequate in the treatment of fractures of tibia, wires, plates and screws are used for bringing the bone on the proper position and also for a rigid immobility of the fracture. He stated that the complainant had to undergo a prolonged treatment since she had infection in the bone and since the fracture did not unite. In the cross examination he stated that the complainant can walk without crutches and she was not in plaster. Though he was cross examined at length nothing was brought out to discredit his testimony in the examination in chief.

Pw 3 is the husband of Pw 2. He corroborated the evidence of Pw 1. He further stated that he had taken loans from different sources for treatment of the complainant and Exbts. P6(12)(a) to (d) are letters issued by the bank and institutions demanding repayment of loan.

THE most important factor that was pointed out by the complainant to substantiate the case of negligence alleged in the complaint is the existence of drill bits inside the leg where operation was conducted by the 1st opposite party. In this connection, learned Counsel for the complainant invited our attention to Exbt. P 1 prescription issued by the first opposite party for purchase of (1) compression plate 8 holes (one) (2) screws 11/8 (cortical) (eight) (3) Epidural Catheter for 17G needle (two). It is in the handwriting of the first opposite party. PW 1 and PW 3 have given evidence that Exbt. P.1 is the prescription made by the 1st opposite party and pursuant to this, these items were purchased and entrusted to the 1st opposite party. This fact has been not controverted. This fact is mentioned in the complaint also but that has not been controverted in the version submitted by the second opposite party. Exbt. P8 (b) is a bill issued by Hebbar Surgicals INC for the sale of these items to the complainant. Exbt. X2 is the X-ray taken from the second opposite party''s hospital. That revealed that the compression plate was not used and instead wires were used by the 1st opposite party. THE evidence of PW l and PW3 clearly shows that the opposite party told them it was necessary to implant compression plate but it was not used. This is further corroborated by the evidence of PW2 Dr. Usman who stated it was the wire that was used for implanting. He found inside leg metalic objects, corticial screw, (2) broken drill bits and (3) two pieces of S.S. wires. THE existance of drill bits is a clear indication of the negligence of the first opposite party who operated the complainant at the second opposite party''s hospital. THE evidence also shows the operation was conducted 10 days after she was admitted at the 2nd opposite party''s hospital and it was an elective surgery and not an emergency surgery. THE evidence of PW2 clearly indicated surgery was unnecessary. He also stated four operations were done for removal of puss and a bone grafting operation also had to be conducted since the bone got damaged. From the evidence it is also clear that there was infection at the fracture side and mobility at the fracture site indicating delayed union of fracture. According to him the open reduction of fracture was probable cause of infection. He explained open reduction means surgery which was done at the second opposite party''s hospital. He said that the complainant was not suffering from any metabolic disease or pressure and usually such fracture unite within about 3 to 4 months if there are no complications. THE evidence of PW2 and other circumstances referred to above clearly support the allegation in the complaint that the first opposite party has failed to exercise reasonable professional skill and care in the treatment of the complainant. We may mention in this connection that after the complainant was told that he had to implant compression plate and having got it purchased by the complainant, compression plate was not seen used. THE reason for not using the compression plate has not been revealed. Neither RW1 nor RW2 could explain the reason for this change in the treatment. It is not in evidence what was done with the compression plate which was purchased and entrusted to the 1st opposite party. THE opposite parties have not produced the case sheet for treatment of the complainant which would have given some clue as regards, the change. Learned Counsel appearing for the complainant brought to your notice a decision in Clark v. Maclennan and Another, (1983 (1) All England Report Page 416) where their lordships observed that a doctor owed a duty to his patient to observe the precautions which were normal in the course of the treatment that he gave and that where a patient suffered damage after there had been a departure from the orthodox course of treatment the Court had to inquire whether the doctor had taken all proper factors into account prior to taking action in order to determine whether that departure was justified. If it was not, that departure was a breach of the duty owed to the patient. It was the 1st opposite party''s obligation to give reasons for the change of mind after deciding to implant compression plate and getting it purchased by the complainant 1st opposite party used wires and screws instead of compression plate. PW2 clearly stated that for treatment in the case of fracture of Tibia using of wires is not advisable. This would will lead to the conclusion that the 1st opposite party was not taking ordinary care in the treatment of the complainant. THE evidence also shows that it was due to negligence in the treatment of the first opposite party that there was infection and further complications which necessitated 5 operations by Dr. Usman. Learned Counsel appearing for the 2nd opposite party attempted to impress upon us that using wires is a recognised method in such treatment. THEre cannot be any dispute that wires also are used for treatment in the case of fracture in other parts of the body. THE evidence of PW2 clearly indicated the use of wire is not a proper method to be adopted in the treatment of fracture of tibia and that is used for treatment of fractures to other parts of the body. THE existance of broken drill bits inside the leg is another strong circumstance of callous carelessness on the part of the 1st opposite party. We therefore hold that the 1st opposite party was negligent in the treatment of the complainant and proper care and ordinary skill expected of a doctor have not been used by the 1st opposite party in the treatment of the complainant and she has suffered severe physical pain and mental strain and damage due to the deficiency in service of the 1st opposite party in the treatment of the 1st opposite party. The next question to be considered is what is the compensation to which the complainant is entitled. She has to suffer infection and excruciating paid due for more than 2 years. She had undergone 5 operations in the S.C.S. Hospitals itself and had to spend huge amounts on purchase of medicines and payment of taxi charges to go from Payyannur to Mangalore. She was found very weak when she was in the box. She was walking with great difficulty with the help of crutcher. Her evidence as PW1 shows that she was not able to attend her household affairs also. The Counsel for 2nd opposite party asked for time for cross-examination of PW1 and finding her general weakness we permitted her to be examined on commission. PW2 stated that there is possibility of recurring infection. He stated that she got evidence of restriction of movement of Ankle joint. He further stated that she has got mild bowing the leg with decimal shortening of the leg and these are permanent disabilities. Taking into account all the circumstances, we fix that a compensation of Rs. 1 lakh will be just and reasonable for the mental pain, agony and disability suffered by the complainant. She has spent a large amount for treatment and medical expenses for surgery and other incidental expenses and we think that an amount of Rs. 75,000/- will be just and reasonable compensation on these counts. She has to make several trips from Payyannur to Mangalore by taxi and other vehicles, and we feel Rs. 25,000/- will be just and reasonable as a compensation on this ground. Thus she will be entitled to a compensation of Rs. 2 lakhs.

THE last point to be considered is who are all liable to pay this compensation. In this context, the 1st question to be considered is whether the first opposite party is an employee of the hospital run by the second opposite party. It is the case of the 2nd opposite party that first opposite party is a free lance doctor and not an employee of the hospital. It is contended that the complainant has only hired the service of the first opposite party and the second opposite party is not at all liable for any negligence of the first opposite party. In support of this contention the second opposite party has produced Exbts. R2 and R3. In support of this contention RW1, Dr. Kochukrishnan was also examined. We perused Exbts. R2 and R3 and are not satisfied that they are documents kept in the ordinary course of business. THEre are overwritings and erasing at various places. Exbt. R3 is the muster roll. We find page 21 of Exbt. R3 relates to the month of February. THE relevant year was not a leap year but we find attendance is seen marked in the month of February on 29th, 30th and 31st subsequently they were erased. Similarly we find such erasing in the month of April where attendance is marked for 31st also. Throughout there are over writings. On looking at Exbt. R2 also we have feeling that it was created for the purpose. THEre are over writings at several pages. We are not inclined to place any reliance on these documents. Learned Counsel heavily relied on the seal of the Asstt. Labour Officer seen in Exbts. R2 and R3. For reasons already stated, we have no hesitation to hold that they are not document maintained in the ordinary course. Apart from the evidence of P. Ws. 1 and 3 there are other items of evidence to indicate that the first opposite party was a doctor attached at the relevant time to the second opposite party''s hospital. Exbt. P8(a) is a bill issued by the hospital for treatment of the complainant. It shows the fee of surgeon was also included therein. It is also seen other charges like bed charge, nursing charge, service charge, electricity and water charge and miscellaneous charge have been collected from the complainant on the basis of the Exbt. P8(a) bill. Exbt. P3 is the letter written by RW1 Dr. Kochukrishnan. That referal letter was in the letter head of the hospital. It is also not clear if Dr. Shekhar was not a doctor attached to the hospital why Dr. Kochukrishnan examined the complainant on her reporting for review and why he should write referal letter Exbt. P3 in the letter head of hospital. Exbt. P1 was prescription for purchase of steel plate. It is issued in the letter head of B.K.M. Hospital. Exbt. P2 is the discharge card issued by the hospital. It also indicates that she went to the 2nd opposite party''s hospital and she was treated by the first opposite party as a doctor attached to the hospital of the 2nd opposite party. In this connection reference may be made to para 4 of the version submitted by the second opposite party in which it is stated that the patient came for review on 30.7.90 and she was seen by Dr. Kochukrishnan on that day since Dr. G.U. Shekhar was not available. All these circumstances would only lead to that conclusion that the complainant approached the 2nd opposite party''s hospital and was treated by the first opposite party as a doctor attached to the hospital. In the circumstances the second opposite party has got vicarious liability in respect of the claim for compensation raised by the complainant. We therefore hold that the both opposite parties are jointly and severally liable to pay the compensation awarded to the complainant. THEy will pay compensation awarded to the complainant within a period of two months from today. Complaint allowed.