M.RIAZ vs P.V.A. MOHANDAS

THE complainant underwent an operation in January, 1990 in Bangalore for a fracture at the left hip joint. Since the fractured bone did not unite the 2nd operation was advised to reset the bone. Accordingly a 2nd operation was done at Madras at the institute of Orthopaedics and Traumatology, (MIOT) Vijaya Hospital, Madras on 16.6.90 by Prof. Dr. PVA Mohandas, the 1st Opposite Party. THE case of the complainant is that 3 weeks after the operation while he was in Bangalore he developed fever and severe pain. On local consultation he was told that there was a definite possibility of an infection of the left hip joint. THE complainant went to Madras and consulted Dr. Mohandas on 25.7.90. He said that there was nothing wrong and that the fever and pain would subside and, therefore, the complainant returned to Bangalore. But fever and pain continued. Again he went to Madras and consulted Dr. Mohandas. He admitted the complainant in MIOT from 14.8.90 to 16.8.90. He did not carry out any clinical test. He made the complainant do walking exercises and told him to put full weight on the affected leg. But there was no relief and he went back to Bangalore. It was only in the 3rd week of September, 1990 Dr. Mohandas told him that there was an infection and another operation would be necessary. Accordingly, another operation was done on 22.11.90 to clean the area to get rid of the infection. But still there was no relief and the infection continued causing severe pain and discharge of pus also started. THEn the complainant consulted Dr. Jhunjhunwala of Bombay Hospital and Dr. Srinivasan of Bangalore. THEy advised that the only way to salvage the situation was to remove the infected portion of the bone which was mostly the head of the thigh bone. THE complainant underwent an operation at Bangalore on 28.4.91 and the removal was done. THE complainant''s further case is that since his was the case without any external injury, and the symptoms developed in a short while after the operation done on 16th June, 1990, the infection had occurred only during the said operation, and hence the infection was solely due to the negligence and careless attitude of Dr. Mohandas and the improper care of MIOT Vijaya Hospital. THE further case of the complainant is that now he is able to move but he has suffered permanent physical disability. His left leg had become shortened by 2 inches and hip unstable because the absence of the hip joint. He is able to move about only with the help of the crutch. From July, 90 he has undergone devastating physical pain and mental torture. He has also suffered financial loss by paying heavy bills of Vijaya Hospital. Besides because of his prolonged absence from work from 1.1.90 to31.12.90 he did not get the salary for 21 months. On these allegations the complainant has asked for an award for a sum of Rs. 10,00,000/-.

THE 1st Opposite Party Dr. Mohandas contends that on 16.6.90 he performed surgery on the complainant to correct the failed internal fixation of fracture of neck of femur which had been done earlier in Bangalore. THE surgery was successful and post operative period was uneventful. THE patient had no temperature at all and other parameters were normal. THE complainant was discharged on 26.6.90 with the instructions to come for review after four weeks. THE complainant came for review on 25.7.90 and again he came for a second review on 14.8.90. He was admitted as an inpatient so as to give him walking training and physiotheraphy. At that time also there was no temperature and no redness or warmth of the affected area or any complaint of pain. THEn the complainant was asked to come back for review after 4 weeks. THE complainant came back on 18.9.90. On that day X-ray of left hip was taken and the fracture was found to have united. THE ESR was on the high side and, therefore, an X-ray of chest was taken. THE complainant was provisionally diagnosed to have "Collagen disease with high ESR". THE complainant was directed to get admitted for "Arthrostomy on Monday" 1.10.90. In view of the high ESR and the provisional diagnosis of Collagen disease the 1st Opposite Party decided to inspect the wound but the complainant did not bother himself to get admitted on 1.10.90, and the 1st Opposite Party did not hear from the complainant at all for 2 months, and when on 21.11.90 he was admitted and the joint was opened it was found there was pus. THE 1st Opposite Party advised "Arthrodesis" or fusing of the joint. THE complainant got himself discharged against medical advice. If the complainant had Arthrodesis or wound inspection done on 1.10.90, if at all there was infection it could have been detected and cured. In these circumstances the 1st Opposite Party cannot be held responsible for the complainant''s own negligence. Hence the complaint is liable to be dismissed as against the 1st Opposite Party. The 2nd Opposite Party Vijaya Hospital contended inter alia that it was not responsible for the treatment of the complainant and the treatment was provided only by the 1st Opposite Party who was independent of the 2nd Opposite Party and the 2nd Opposite Party had only collected charges for the use of the space and other facilities offered. This Opposite Party had not employed the 1st Opposite Party or anybody who was associated with him. This opposite party provides nursing facilities including all medical facilities such as Laboratory Service, to those admitted. The consultants of the 1st Opposite Party have to pay for the consultation rooms used by them in the hospital premises and for the treatment for the patient the consultants alone are responsible. Therefore, no deficiency in service on this Opposite Party arises with regard to treatment of the complainant. As such this Opposite Party is not liable to pay any amount to the complainant.

The points that arise for consideration are : 1. Whether the 1st Opposite Party or the 2nd Opposite Party or both are guilty of deficiency in service vis-avis the complainant. 2. If so to what amount of compensation the complainant is entitled to.

POINT No. 1 : It is the case of the complainant himself that he underwent first operation in Bangalore in January, 1990 for a fracture at the left hip joint and since the fracture did not unite he came to Madras and had the 2nd operation by the 1st Opposite Party Dr. Mohandas. The further case of the complainant is that few weeks after the said 2nd operation while he was at Bangalore he developed fever and severe pain and on local consultation he was told that there was definite possibility of infection of the left hip joint. But the complainant has not given the name of any local Doctor he had consulted nor has he filed any records regarding that. According to the 1st Opposite Party Dr. Mohandas, after the complainant was discharged on 26.6.90 he came back for review on 25.7.90 and again on 14.8.90 and during both these times the condition of the patient was normal and there was no temperature, no redness or warmth of the affected area and there was no complaint of any pain. This contention of the 1st Opposite Party is supported by the relevant records which had been filed by him. Therefore, the case of the complainant that 3 weeks after the 1st operation while at Bangalore he developed pain and fever is difficult to believe. It is not disputed that the complainant was admitted on 14.8.90 and was discharged on 16.8.90 during which time he was given walking training and physiotherapy exercises. According to the complainant only in September, 1990 while the 1st Opposite Party examined him he advised that there was an infection and an operation would be necessary. According to the Opposite Party on 18.9.90 an X-ray of left hip was taken and the fracture was found to have united, but on the same day ESR on high side was found. On 24.9.90 the complainant was provisionally diagnosed to have "Collagen disease" with high ESR and on 29.9.90 the complainant had been advised "Arthrostomy" on Monday i.e., 1.10.90. But the complainant did not bother to get himself admitted on that date and the 1st Opposite Party did not hear from him for two months till 21.11.90. On that day when the complainant was admitted and would was inspected and the joint was opened it was found there was pus. The 1st Opposite Party advised "Arthrodesis" or fusing of the joint, but the complainant got himself discharged against medical advice. There is no evidence showing that even from 3 weeks after the 2nd operation by Dr. Mohandas the complainant had pain and fever. As seen above according to the 1st Opposite Party it was only on 24.9.90 he diagnosed Collagen disease with high ESR and he advised the complainant to be admitted for Arthrostomy or Wound Inspection on 1.10.90. There is no evidence whatsoever to show that even before 24.9.90 the complainant had any sign of pain or fever. It wound appear that on 29.9.90 the complainant was advised to get admitted for Arthrostomy or would inspection on 1.10.90 but he seems to have gone away and re-appeared only on 21.11.90 almost two months after. It was then when the joint was opened it was found there was pus. As contended by the 1st Opposite Party it is not known what the complainant had been doing qua the wound during this period. It is not in dispute that on 22.11.90 the complainant was advised "Arthrodesis" or fusing of the joint, by the 1st Opposite Party, but the complainant himself got discharged against medical advice and thereafter only in April, 1991, according to the complainant he underwent an operation at Bangalore. The complainant has not chosen to examine himself as a witness nor has he examined any other witnesses such as local Doctors of Bangalore whom according to him he consulted or the Doctor who did the final operation in April, 1991, to substantiate the averments in the complaint that even within 3 weeks after the 2nd operation by the 1st Opposite Party Dr. Mohandas he had pain and fever, and we do not find that any of the documents filed by him support this case of his. There is no material to show that the contention of the 1st Opposite Party that even though the complainant was advised to get himself admitted on 1.10.90 he did not do so and met the 1st Opposite Party only after two months that is on 21.11.90 is not correct or true. It is also not denied that against the medical advice given on 22.11.90 for "Arthrodesis" or fusing of the joint, the complainant got himself discharged and never came back, and even according to the complainant it was only in April, 1991 he got Arthrodesis done in Bangalore. Considering all these circumstances it is difficult to hold that it was only during the 2nd operation done by Dr. Mohandas due to his negligence infection had occurred as pleaded by the complainant.

AS regards the 2nd Opposite Party it is not in dispute that the alleged treatment in question was given by the 1st Opposite Party only and the 2nd Opposite Party hospital had nothing to do with the treatment as such, but it had only provided the infrastructure like space etc.. Thus no negligence has been proved against any of the Opposite Parties. AS such they are not liable to pay any amount to the complainant. Point No. 2 : In view of our finding on Point No. 1, the complainant is not entitled to any compensation. In the result, therefore, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed. _____________