R. PONNAPPAN (DENTIST)-/ vs V. MOHAN (TEACHER)

IN AP 15/99, aggrieved by the order passed by the District Forum, Srivilliputhur in O.P. No.174/97, the Opposite party has come forward with the appeal.

ACCORDING to the complainant, he and his friend were driving a motorcycle and at the time when the complainant approached the District Collector''s office, he fell down as a result of which his jaw was broken. Immediately, the complainant went to the opposite party at Virudhunagar. The oppsite party stated that the jaw had broken and thereofre he has to be taken to Latha Clinical Operation Theatre at Sattur and accordingly the complainant went there and got admitted himself and on 3.2.1997 he was operated upon by the opposite party. When the complainant consulted S.R.M. Hospital at Chennai, he was made to understand that the operation had been done at a place not required and therefore a re-operation was done. On account of the carelessness and negligence of the opposite party the complainant had to incur an expenditure of Rs. 70,000/-. He was put to mental hardship and sufferings as a result of which he claims a sum of Rs. 70,000/- towards the said expenditure and a sum of Rs. 25,000/- towards compensation and cost of Rs. 5,000/-. The opposite party contended that on taking X-ray, fracture was found on the right side of the complainant''s jaw. Immediately he was operated upon. He was advised not to move his jaw for a period of six weeks. He was also asked to come and consult the Doctor frequently. But the complainant did not turn up at all. There was no negligence in carrying out the operation. There was no deficiency in service.

The District Forum, Srivilliputhur, accepted the complaint and accordingly directed the opposite party to pay a sum of Rs. 8,965/- towards medical expenses and sum of Rs. 10,000/- towards compensation for mental agony, pain and suffering along with a sum of Rs. 500/- as cost. Aggrieved by the same, the present appeal has been filed by the opposite party.

THE respondent/complainant in AP 15/99 has filed another complaint before the District Forum, Srivilliputhur claiming a sum of Rs. 1,00,000/- as compensation from the opposite party on the ground that he underwent treatment with the opposite party for the injuries sustained by him in his left elbow on 31.1.1997. THE opposite party had an X-ray taken and said that there was a dislocation of bone. THE said Doctor applied plaster of paris and asked the complainant to come after 21 days. Since the pain was excessive, the complainant went to Sattur and had an X-ray taken and came to know that there was a mis-placement of bone. He went to Madras where at National Hospital he underwent an operation on 26.2.1997 and was discharged on 28.2.1997. Thus on account of the carelessness and negligence of the opposite party and deficiency of service, he had suffered, for which he has asked for compensation. The opposite party filed a version stating that the complainant was treated by him on the very same day by applying plaster of paris and was advised to come the very next day, but he did not turn up. Since the complainant did not turn up immediately, another X-ray could not be taken to find out whether there is a fusion of bones. There was no negligence or carelessness on ther part of the opposite party. Therefore the opposite party is not liable to pay compensation or any damages to the complainant.

THE District Forum dismissed the complaint. THErefore the complainant has preferred this Appeal in A.P. No. 847/98. Since the complainant in both these matters is one and the same, though the Opposite Parties are different, these appeals are taken together and a common judgment is rendered hereunder. For the purpose of convenience, we will take up the complainant''s case in A.P. 847/98. In this matter, the complainant would urge that on 31.1.1997 when he was going along with his friend on a motorcycle, he, sitting on the pillion, a dog darted across and as a result of it the complainant fell down and sustained injuries. According to him, he sustained injury on his left elbow and he immediately went to the Opposite Party Doctor who advised him to take an X-ray. X-ray was taken and after seeing the X-ray, the Opposite Party Doctor applied plaster of paris and the complainant was asked to come after 21 days. The complainant further says that he had severe pain and therefore he went to Sattur and had another X-ray taken and thereafter he went to Chennai where he was operated upon. According to the Opposite Party Doctor, the complainant did not turn up the next day as advised, and only if the injured had come the next day, further X-ray would have been taken to see whether any fusion had taken place and accordingly medical management would have been done. The complainant has not produced any evidence in support of his claim except some records from the National Hospital. From the Admission Record Summary issued by National Hospital, Chennai, we find that the complainant was admitted for "Un Reduced Dislocation" of left elbow and that this was set right by "Open Reduction And Pop Application With C arm Control Under General, Anaesthesia". if really he had pain in spite of reduction of the dislocation by application of plaster of paris, one would expect him to go to the same Doctor and complain about the same immediately. But the complainant had not done so and on the other hand, he had kept quiet. If really he had intense pain even from the very next day, it is not known as to why he should wait till 26.2.1997 to go to the Doctor at Madras. He has nearly waited for four weeks. This conduct on the part of the complainant appears quite odd. It is not in keeping with the normal course of conduct especially of a person so injured.

ACCORDING to the Opposite Party, he advised the complainant to come the next day for check-up, while according to the complainant, he was asked to come after 21 days.

THE Supreme Court has expressed the view in its decision reported in Indian Medical Association v. V.P. Santha and Ors., III (1995) CPJ 1 (SC)=(1995) 3 CTJ 969 SC (CP), that cases of consumer disputes requiring expert medical opinion or consideration of voluminous evidence should be left to be decided by Civil Courts where full-fledged trial is available. Here in this case, we have no evidence, much less from any medical experts. THE averment of the complainant that he was asked to come after 21 days remains only an averment, for, we find it is disputed by the Opposite Party. THE fact that subsequently he had more effective and better treatment will not lead us to conclude that there was any negligence on the part of the Doctor who first treated him at his native place. THErefore, to hold that there was any medical negligence and consequent deficiency of service, we require more materials from the complainant. But that has not been forthcoming. THEre is an assertion on the part of the complainant and there is a denial by the other side. In such circumstances, the failure on the part of the complainant to go to the Doctor immediately to complain about the persisting pain he was having and the fact that he went to Madras for further treatment only on 26.2.1997 would all go to show that if at all there has been any lack of care, it is only on the part of the complainant as otherwise, the silence and the inaction on the part of the complainant is inexplicable. Unless we have some iota of evidence to suggest that there has been some absence of care and act of negligence on the part of the Doctors, on the basis of the insufficient material produced by the complainant, we cannot jump to the conclusion that there is medical negligence and consequent deficiency of service, thereby to clamp liability upon the Opposite Party. THErefore it follows that, as far as appeal in A.P. No. 847/98 is concerned, we do not find any material to overrule the conclusion arrived at by the District Forum, Srivilliputhur. Now, coming to the case of the complainant in A.P. No. 15/99, once again it has to be stated that the complainant underwent an operation at the hands of the opposite party Doctor. The complainant who sustained injuries in his jaw went for treatment to the opposite party. The opposite party operated upon his jaw and did wiring of the jaw. According to the complainant, since he continued to have much pain and could not open his mouth, he had to undergo another surgery for the same at S.R.M. Hospital, Chennai. According to the complainant, he had to undergo a re-surgery because the opposite party did not do his job properly or carefully and thus there was negligence and deficiency in service on the part of the opposite party. The opposite party is a Dentist. We have nothing to show that he is a qualified Dental Surgeon as well. According to the opposite party, there was a fracture at the body of the Mandible on the right side. It is no doubt true that the experts have not been examined in this case. In fact, the opposite party Doctor has also not chosen to adduce any evidence in this regard. According to the Discharge Summary issued by S.R.M. Hospital, Chennai, the patient had a "Fracture Mandible with Malunion : Fracture Left Parasymphysis : Right side condyle with displacement - Left side the neck condyle with displacement." The operation has been performed on 3.3.1997. In this case, though the first operation was done on 3.2.1997, the complainant has not chosen to go to the Doctor who first operated upon him for further medical management. It is also not stated nor any reasons are given for as to why he has not gone to the same Doctor, at least, to know that what went wrong with the operation. It is advisable that in cases of such operations, the person operated upon has to keep up certain precautions. He has to see that the jaw is not used much and that there is no stress or pressure put on the jaw till fusion takes place. The complainant has not stated that he was quite careful and was abiding by the instructions given by the Doctor and did not move his jaw and that he did not indulge in any activity that would have jeopardized the operation performed upon his jaw. There is an assertion by the complainant and a denial by the Opposite Party. Merely from the fact that the complainant had to be reoperated, it cannot follow that the earlier operation done was not properly and carefully done. In cases of this nature, care has to be taken by both persons, just as care to be taken by the Doctor while operating upon, the patient also, in turn, has to be careful to abide by the instructions of the Doctor and see that the seat of operation is not put to much strain. Therefore we have only materials to show that the complainant underwent an operation on his jaw and had it wired at Sattur and after a month he went to Madras where again he had a re-operation. These two circumstances alone cannot help us to conclude that there was any medical negligence or deficiency of service on the part of the Doctor. As to what happened in the interregnum, one is at a loss to know. Doctors cannot assure 100% cure nor all the operations done by them end in success. If it were so, there is no need for one''s prayer to the Almighty. There are so many factors and circumstances that come into play in-between. Unless there is substantial evidence of conclusive nature to establish the nexus between the acts, it is not possible nor it would be legally permissible to hold a medical practitioner liable. Just as it is the duty of the Doctor to advise clearly a patient about his condition and post-operative precautions, it is incumbent upon the patient also to be diligent. In this case, as we have pointed out earlier, there is an affirmation by one and denial by the other. As it is already pointed out by us it is not the complainant''s case that he approached the Doctor immediately after his operation and complained to him about the pain and inability to move the jaw. On the other hand, he has kept quiet for nearly a month and then had proceeded to Chennai for consulting another Doctor and for another operation. There is one another circumstance to be pointed out. The complainant has approached the District Forum only two years after the alleged act of the opposite party. There is also no reason or explanation for this enormous delay in coming with the claim. Therefore in such circumstances, we are of the view that it is not a case in which it could be held that there is satisfactory proof to hold that there is deficiency in service resulting from the medical negligence on the part of the opposite party. Hence, in this view of the matter, we are unable to accept the conclusion of the District Forum. Consequently, we are of the view that the verdict of the lower Forum has to be set aside.

In the result : (1) A.I. No. 847/98 is dismissed, but in the circumstances without costs. The order of the lower Forum is confirmed. (2) A.I. No. 15/99 will stand allowed, but without costs. The order of the District Forum is set aside. The complaint will stand dismissed, but without costs.

Ordered accordingly.