M.B.GAJINKAR vs ST.MARTHAS HOSPITAL

THIS is a complaint under Section 17, read with Section 12 of the Consumer Protection Act, 1986. 1. It is the case of the complainant that on 14-9-1990, while he was attending his office that is, Reserve Bank of India, Bangalore, had an accidental fall in the office premises, in consequence of which, the complainant sustained dislocation and fracture of his right elbow. He was immediatly removed to M/s. St. Martha''s Hospital-opposite party No. 1, where the dislocation of the elbow joint was set right and after plastering he was discharged directing him to get himself admitted on 19-9-1990 for an operation. Accordingly, the complainant got himself admitted in the hospital of opposite party No. 1, wherein opposite party No. 2, Orthopaedic Surgeon, a specialist, conducted the operation on 20-9-1990 the radial head of right elbow was removed and the complainant was discharged from the hospital on 25-9-1990, The O.P. No. 2 removed sutures and the plaster on 3-10-1990 and advised the complainant to continue physiotherapy.

THE complainant, further averred that, when he felt severe pain and restriction in the movement of the elbow, met opposite party No. 2, who on examining the X-ray report, advised the complainant to re-admit on 5-12-1990 for manipulation. Accordingly, complainant got himself admitted on 5-12-1990 and O.P. No. 2, under general anaesthesia, conducted manipulation of right elbow and discharged him on 7-12-1990 with an advise to the complainant to undergo physiotherapy. The complainant nextly averred that when he did not find satisfactory relief, as per the advise of his colleagues, he consulted other Orthopaedic Surgeons in different Nursing Homes, that is, the Orthopaedic Surgeon at Bowring & Lady Curzon Hospital, Professor of Orthopaedic attached to the Victoria Hospital, a Doctor in M/s. Ashoka Nursing Home and Orthopaedic Surgeon at Basavanagudi Orthopaedic Rehabiliation Centre and found that the opposite parties had committed gross negligence in conducting a wrong operation. The complainant finally on 6-3-1991 unable to bear the severe pain consulted Orthopaedic Surgeon. Dr. K. Srinivasan, C.W. 2, Who after through examination advised the complainant to undergo second operation. The complainant further averred that C.W. 2, on examining the complainant had come to the conslusion that dislocation was due to gross negligence and wrong surgery performed by the opposite parties. C.W. 2 conducted the operation of right elbow of the complainant for excision of myositis on 6-4-1991 and inserted a tension band which came to be removed on 12-7-91 by C.W. 2. The complainant averred that inspite of such an operation being conducted by C.W. 2, no improvement in respect of movement of his elbow was found. The complainant has, at para (10) of the complaint, averred with regard to the operation conducted and the treatment given by O.P. No. 2, thus: "(10) The complainant submits that the first and the second respondents have been highly irresponsible on account of the following reasons as stated hereunder; (a) The operations conducted on 20-9-1990 was to remove the fragment of the radial head, on the contrary the radial head has been excised without removing its fragments; (b) During the operations conducted on 20-9-1990, while removing the radial head there was re-dislocation of the complainant''s elbow joint which obviously was not being observed by the second respondent and to aggravate it further the dislocated position was being plastered and by the time the plaster could have been removed there was an extra growth of flesh and new bone formation; (c) Whenever dislocation and fracture of elbow occurs it is normal to set right the dislocation and wait for 3 to 4 weeks before conducting an operation near the joint. On the contrary in the complainant''s case the time tested procedure was not adopted and immediately the operation was performed from the date of setting right of this complainant''s elbow joint. (d) Immediately X-ray was not taken by the respondents as otherwise the dislocation could have been noticed. (e) The first and the second respondent on 25-9-1990 have obviously taken an X-ray of the arm instead of the elbow joint dislocation. (f) The first and second respondent conducted manipulation on 6-12-1990. When the elbow joints are not in its original place any forceful movement will cause more harm."

The complainant on the basis of these averments sought the compensation from the opposite parties in a sum of Rs. 8,41,468-45.

O.P. Nos. 1 and 2, filed their statement of objections and averred that there was no deficiency in service on their part. The opposite parties averred that they had acted in accordance with the standards of a reasonable competent medical men. There was no negligence either in diagnosis or in treatment on the part of O.P. No. 2, O.P. No. 2, further averred that the complainant had sustained a Type IV fracture which was very serious injury. The complainant was promptly attended, dislocation was reduced and subsequently he was successfully operated on 20-9-90. O.P. No. 2 nextly averred that the when X-ray taken on 30-11-1990 disclosed that the complainant had subluxated elbow joint, the complainant was again admitted on 5-12-1990 and on 6-12-1990 a gentle manipulation of elbow was done under General Anaesthesia and was discharged on 7-12-1990 with an advise to undergo physiotherapy. O.P. 2 averred that the procedure adopted in the matter of fracture of right elbow sustained by the complainant were in the right direction and all care and caution was taken in treating the complainant. O.P. No.2 denied that there was negligence in treating the complainant. Myositis Ossificans is not unusual in the case of elbow fracture associated with soft tissue injury being of "Type-IV" fracture. The radial head was broken into fragments, so two fragments during the operation on 20-9-1990 were removed and denied that the extra growth of flesh and new bone formation was on account of error in plastering.

OPPOSITE parties, on the basis of these averments, sought the complaint to be dismissed. During enquiry, the complainant examined himself as C.W. 1, got C.W-2, Dr. Sreenivasan and C.W-3, Dr. Somasundara, examined. He also got Ex. C-1 to C-10 marked in evidence. Exs. C-1, C-2, C-3, C-4, C-5, C-8 and C-9 are the X-ray photos. Exs. C-6 and C-7 are the discharge summary given by C.W-2 and Ex. C-10 is the certificate given by C.W-3. O.P. No. 2, examined himself as R.W-1 and got Ex. R-1 to R-6 marked in evidence. Opposite Party also examined R-W.2. Dr. Sridhar, who had produced the relevant records as per Ex. R-4, regarding the operation, discharge summary etc. of the complainant. Ex. R-5 and R-6 are the physiotherapy treatment records.

HAVING regard to the pleadings of the parties and the submissions made by the learned Counsel for the parties, the points that arise for our consideration are, whether: (a) there was any deficiency in the medical service rendered by the opposite parties? if so, (b) to what relief, the complainant is entitled to ?

THE complainant, a clerk/coin Note Examiner Grade II, working in Reserve Bank of India, Bangalore, unfortunately had an accidental fall in his office premises on 14-9-1990, and in consequence of which, sustained the fracture of right elbow. THE complainant, has in this regard, stated thus; "Due to the fall, I had sustained fracture or radial head, coronoid process and dislocation of the elbow. I also came to know from the doctor that I had sustained injury to the soft issues, namely, Branchalis muscle. I do not know if the ligaments were torn. C.W-2, Dr. K Srinivasan, has in this regard stated thus: "It is a fact that the complainant had suffered. (1) posterior dislocation of the right elbow with fracture of the radial head; (2) injury to soft tissues; (3) fracture of the coronoid process. This type of fracture is classified in medical science as fracture of Type-IV. Type-IV injuries are the most serious in radial head fractures. In the case of Type-IV fractures myositis ossificans can occur. THE formation of myositis ossificans. THE classified in medical science as commonest complication in such cases. Amongst the fractures of the radial head, the prognosis for Type-IV fractures is the worst."

C.W.-3 had examined the complainant as an out-patient and he had not seen any X-ray photo nor he did take any X-ray and examined the complainant.

R.W. 1, that is, opposite party No. 2, examined the complainant on 19.9.1990. After he was admitted in the hospital, opposite party No. 2 conducted the operation of right elbow of the complainant on 20.9.1990. R.W. 1 has stated regarding the operation conducted and the treatment given by him, at para Nos. 7 and 8 of his deposition, as under: "Para 7:1 examined the complainant on 19-9-1990 when he was an in-patient in the hospital. On 20th, the complainant was posted for the surgery. I performed the surgery. 8: I exposed the elbow joint from latteral approach. The radial head was identified. It was found to be broken into two pieces. The joint was very lax and loose due to the damage of the collateral ligaments. The two fragments of the radial head were removed. The joint was examined for any loose pieces in the joint space. Easily dislocatable joint was reduced to its normal position. The wound was closed in layers. The plaster of paris was applied to the elbow to maintain the reduced position. He was thereafter, sent back to the ward."

THIS material would go to show that the complainant had sustained a very serious injury, that is, Type-IV fracture of his right elbow. O.P. No. 2, that is , R.W-1, and Orthopaedic Specialist, F.R.C.S., in Orthopaedic Surgery from the Royal College of Surgeons of Edinburgh and Master of Orthopaedic Surgery from the University of Liverpool, attended on the complainant on 19.9.1990, conducted the operation and gave necessary treatment. It is the case of the complainant that O.P. No. 2, performed a wrong surgery, while removing the radial head. There was dislocation of the elbow joint and due to the plastering on it, there was formation of extra growth of flesh and bone. The further grievance of the complainant is that R.W-1 conducted forceful manipulation on 6-12-1990 and consequently, he had suffered a permanent restriction in the movement of his right elbow.

C.W-2, Dr. K. Srinivasan, has fairly admitted that the disability suffered by the complainant was due to the injury sustained by him but not due to any operative procedure performed on him. C.W-2, has in this regard, stated thus; "I agree with the suggestion that whatever the disability, the complainant had suffered was due to the injury sustained by him and not due to any operative procedure performed on him. I agree that the subluxation of the distal radio ulnar joint (forearm) following radial excision is a possible occurrence. Therefore, I think taking a forearm X-ray is an approved course of investigation."

C.W-2, has further stated, thus; "The restricted movement of the elbow is due to two reasons; (1) subluxation of the elbow; (2) Myositis ossificans, which are the consequence of fracture, dislocation of the elbow on account of the injuries sustained by the complainant.

It is clear from the evidence of this witness that the disability suffered by the complainant was due the severe nature of injury sustained by him and not due to any operative procedure performed on him. The complainant has expressed the grievance that formation of Myositis (formation of bony masses in muscles ) was due to the wrong operative procedure followed by O.P. No. 2 in causing re-dislocation of the elbow and plastering it. C.W-2 has admitted that the formation of Myositis ossificans is the commonest complication in such Type IV fractures.

C.W-3, has in this regard at para (16) of his deposition, stated thus; ''Myositis ossificans is of common occurrence in the case of Type-IV injuries. The formation of Myositis in one of the important reasons for restriction of elbow movement. If myositis ossificans is formed, 100% of the movement of the elbow cannot be regained.'' Therefore, from this material, it is clear that formation of Myositis and the subluxation (partial dislocation) were due to the severe nature of the injury sustained by the complainant.

THE specific grievance made by the complainant, as per para 10 of the complaint, is that O.P. No. 2 though excised the radial head but fragments were not removed while operating on 20-9-1990. O.P. No. 2 R.W-1, with regard to the operation of the right elbow of the complainant on 20-9-1990, has at para 8 of his evidence, stated thus: 8. "I exposed the elbow joint from latteral approach. THE radial head was indentified. It was found to be broken into two pieces. THE joint was very lax and loose due to the damage of the collateral ligaments. THE two fragments of the radial head were removed. THE joint was examined for any loose pieces in the joint space. Easily dislocation joint was reduced to its normal position. THE wound was closed in layers. THE plaster of paris was applied to the elbow to maintain the reduced position. He was thereafter sent back to the ward."

R.W-1, has further stated thus: "I see Ex. C-5.1 say no loose fragments of the radial head are left behind, whatever is left behind is the stable part of the head to prevent dislocation."

C.W-2, Dr. K. Sreenivasan, has in this regard, stated that in the case of excision of radial head, all the loose fragments are removed. He has also stated that there is a view that a fragment which is attached to the shaft need not be removed in order to provide stability to the elbow joint, though he does not agree with that view. C.W. 3, has stated that the fragments of a cornoid process is not normally removed unless it is loose.

From this material, it is clear that C.W.I has done what all that was necessary to be done at the time of operation of the right elbow of the complainant on 20.9.1990.

ANOTHER grievance made by the complainant is that an immediate check X-ray was not taken after the operation and that the Xray that was taken on 25.9.1990 was an X-ray of the arm and not of the elbow joint. R.W. 1, has stated that check X-ray was taken as per Ex. C-l, after the treatment on 14.9.90. R.W. 1, has in this regard at para 6 of his deposition, stated thus: "6. The complainant immediately was put to I.V. sedation and the dislocation was reduced. After his treatment on 14.9.1990, the complainant was discharged with a plaster. After the reduction and the plaster was put, a check X-ray was taken which showed full reduction and normal position. Ex. C-l is the said check X-ray. It shows a large fragment of the coronoid process."

R.W. 1, has further stated that an X-ray was taken, as per Ex. C-2, on 24.9.1990 of the right fore-arm. C.W.-3, has stated that the taking of check X-ray depends upon the view of the surgeons. It is not a matter of routine to take check X-ray. C.W.-2 has also stated that taking the X-ray of the fore-arm is an approved course of investigation. It is clear from the material, as referred above, the check X-ray was taken by R.W. 1, to make sure that all the fragments of radial head had been removed.

ADMITTEDLY, the complainant did suffer a Type-TV fracture. ADMITTEDLY this is a very serious fracture and the commonest complication, in such cases, is formation of myositis. The complainant, on having suffered Type-IV fracture, unfortunately suffered complication of subluxation and myositis. C.W. 2, with regard to prognosis (the considered opinion of the outcome of an illness based upon all the relevant attainable facts of the case), in respect of such an injury has stated, thus: "Amongst the fracture of the radial head, the prognosis for Type-IV fractures is the worst." R.W. 1, has stated thus; "The prognosis of Grade IV type injury is very poor." O.P. No. 2, who has done all that was necessary to be done under the circumstances, with a reasonable degree of care and caution, cannot be attributed with negligence simply because the complainant did suffer myositis complication. Having regard to these facts and in the circumstances of the case, it is clear that the complainant failed to prove that there was any negligence on the part of O.P. No. 2 in either operating of the right elbow of the complainant or in the treatment thereafter. So there was no deficiency in the medical service rendered by the Opp. Parties. Hence points (a) and (b) are answered in the negative - against the complainant. ORDER In the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs. Complaint dismissed.