S.Manjunathan vs SRIRAM

THIS complaint is filed on 9.3.2000 by the above persons praying for passing an order directing the above O.P. to pay Rs. 10.00 lakh as damages to him in the ends of justice. Brief facts of the case are, he met with a road accident on 18.3.1997, and got admitted on 19.3.1997 in the O.P. 1 Hospital for treatment. Dr. Sriram is the proprietor of it, and Dr. S. Muthu is an Orthopaedic Surgeon there. During treatment, complainant was operated on 24.3.1997 for fracture of lower right femur. O.P. 2 had operated the complainant upon open reduction and internal fixation with 95 DCS, and bone grafting done without removing bone pieces. Due to non-removal of it, and negligence of the Doctors, pus was formed. For controlling it, again complainant underwent Exploration/Cavage/Gentabead Placement Intraosseous on 3.4.1997. In spite of the above treatment, discharge of pus and swelling of thigh continued. Instead of curing the said ailments, the O.Ps. discharged the complainant on 26.4.1997 by giving some advice, and opined to review after 6 weeks. Due to heavy pain and suffering, and huge formation of pus, he again went to O.P. 1 Hospital for treatment on 3.5.1997. O.P. 2 Dr. Sriram refused to admit and treat him, and sent back without any treatment. THIS clearly shows the attitude of O.P. 1 and O.P. 2, and negligence to treat the patient, who approached them for ailments. O.Ps. were fully aware of the wrong done by them while operating the complainant for fracture. Due to their negligence in performing the operation of right thigh, swelling and pus formation continued. Due to refusal to admit and treat by O.Ps. for the 2nd time, without any alternative, complainant went to HOSMAT Hospital, Magrath Road, Bangalore-25, and got admitted there on 5.5.1997 as in-patient. There the complainant was operated on 9.6.1997 by removing the loose concellous screws 1. Cortical screw and gentabead, exacuation of pus and cunratage, and again on 26.5.1997 he was operated and removed the implant with application of skeletal traction over B-B frame done under G.A. on 26.5.1997. Again on 9.6.1997 complainant was operated on right femur illizarav ring fixator application with angulating corrected done under G.A. These treatments were done to cure the pus formation and swelling of thigh due to bad treatment given by O.Ps. and their negligence in conducting operation, and inserting steel blades with loose cancellous screws and cortical screws with gentabead placement and non-removal of bone pieces at the time of operation. Since 21.6.1997, he has been admitted to the Hospital and discharged several times, and so many treatments have been given to him. But, still condition is not improved. Due to negligence and dereliction in service by O.Ps., while the complainant was admitted in their Hospital, he is suffering even now. Ever since the admission to O.P. 1 Hospital till today, he has spent Rs. 3,50,000 and underwent lot of pain and sufferings besides mental agony. He has suffered physical disablement, and lost all his activities. Complainant is a Technician by Profession working in M/s. Widia India Ltd., Bangalore, and his job requires lot of physical work. due to O.P.''s negligence in providing proper treatment he has become weak, and could not discharge his duties. Leg of the complainant is shortened. Complainant is entitled to claim the loss and expenditure incurred by him of Rs. 3.50 lakh together with a sum of Rs. 6.50 lakh towards pain, suffering, mental agony, improper treatment, physical disability suffered by him as a result of negligence of the O.Ps. in not providing proper treatment. While he was admitted in their Hospital, complainant got issued legal notice on 23.9.1999 to the O.Ps., calling upon them to pay Rs. 10.00 lakh within 15 days from the date of receipt of notice, which they have failed to do. Complainant is a consumer, and there is deficiency in service by O.Ps. in treating him, and negligent, resulting in loss, pain and suffering to him, with physical disability. Cause of action has arisen in Bangalore. Hence this complaint.

THE version of O.Ps. is that there is no case of deficiency in service by O.Ps. from the complainant, and it draws to investigate minute element of medical practice requiring expert evidence, which cannot be gone into by the Commission, and the complaint cannot be entertained, as not tenable, and is liable to be dismissed. O.P. 1 is a limited company, and not a proprietorship one. Limited company is a necessary party, which is not arrayed. Complaint is bad for non-joinder of proper party, complaint is assumptive and frivolous. THEy have admitted the complainant on 18.3.1997 in their O.P. 1 Hospital with a history of Road Traffic Accident at 7.30 p.m. and examined him and found it is a known case of Epilepsy. He had sustained comminuted supreacondular fracture right femur type 3 (i.e., fracture involving distal articular surface of femur which is in many pieces). Necessary investigations like X-ray, Blood and Urine examination were done, and after obtaining necessary opinion from the Physician and Neurologist, on 24.3.1997 O.P. 2 posted complainant for surgery of open reduction, and internal fixation with Dynamic Condylar Screw and plate fixation with bone grafting was done under General Anaesthesia during surgery, one unit of blood was transfused. Pre and post-operative antibiotics were given. Post operative x-ray showed good reduction and plate fixation on 29.3.1997 evening complainant developed temperature of 1000 F and soakage of dressing. By 1.4.1997, he developed purulent discharge from the wound with anemia, jaundice and cough. After explaining the prognosis because of the type and nature of fracture and the consequences involved in the management of infection, and taking necessary consent, on 3.4.1997 wound was explored debridement and lowage of the infected wound was done with antibiotic Gentamycin bead placement under spinal anaesthesia. Antibiotics were continued according to pus culture and sensitivity. Necessary blood transfusion was given as and when required, and twice daily dressing was done regularly. On 23.4.1997, temperature became normal from evening POP Cast A/K right was applied and window was cut to facilitate the dressing as and when required and come to Hospital when there is increase in the discharge of pus or fever, and in case if there were no complaints, to come after 6 weeks. His stay in the Hospital was for 46 days period. On 1.5.1997, complainant''s father and brother came and gave history of the complainant suffering from pain and dischrge of pus, and O.P. 2 advised to bring the patient for renew review next day. On 3.5.1997 at 4.10 p.m. the complainant visited O.P. 2 and got admitted in the Hospital. O.P. 2 examined him, and inspected the wound and changed the dressing, and reassured him since the pus is reducing, and the Gentamycinbeads are there, active as antibiotic, and we will wait for some time before going to next phase of treatment if discharge of pus persists. THE complainant, after discussing with his relatives, decided to continue dressing, and antibiotics at his residence, and informed that he would come back next week. He got himself discharged at 8.30 p.m. on the same day. THEreafter, he did not visit O.Ps. O.P. 2 has treated the complainant with utmost care and diligence, and there is no deficiency in service rendered by either O.P. 1 or O.P. 2. O.P. 1 is a renowned hospital in Bangalore City, and has been rendering good service to the patients, attached to O.P. 1. THE doctors of O.P. 1 have operated on the complainant successfully, and as per the recognized norms of the medical procedure for a surgery. THE Doctors in Mallige Medical Centre, have formed a surgical team of physicians, Neurosurgeons and Orthopaedic surgeons etc., and it is only after the medical team declaring the complainant as fit for surgery, he was operated at the Medical Centre. Hence, there is no negligence or deficiency in service by the Doctors at Mallige Medical Centre and O.P. 2. Expert in the field of treatment of fractions have opined "loose fragment of the normal bone during fracture fixation should not be removal as most of the fracture fragments in this case forms part of the articular surface of distal femur and the removal of the same will result in loss of the joint surface and shortening of the limbs. O.P. 2 keeping the above in mind, conducted the surgery on the complainant successfully. THE complainant was admitted to the Medical Centre for the second time on 3.5.1997 and he got himself discharged on the same day at 8.30 p.m. by stating that he would get dressing done at home, and continue antibiotics. Complainant has not suffered any loss or injury at all during the treatment at O.P. Hospital, and its Doctors, and hence no compensation much less the compensation claimed need to be awarded. THEre is no cause of action, much less the cause of action averred by the complainant in para 10 of complaint, and hence the complaint is liable to be dismissed in limine. THE Complaint with a mala fide intention to make wrongful gain at the cost of O.Ps., has filed the complaint deliberately to harass the O.Ps. In view of the false allegation made in the complaint, the O.Ps. are entitled for a counter-claim of Rs. 10.00 lakh as compensation to the O.Ps. THE Commission may be pleased to dismiss the complaint with an exemplary costs, and direct the complainant to pay Rs. 10.00 lakh as compensation to the O.Ps., since complainant has filed the complaint with mala fide intention to make wrongful gain on misconceived facts in the interest of justice. The complainant has relied on Exts. C1 to C42 and filed his affidavit and he is cross-examined as C.W. 1. O.Ps. have filed affidavit of O.Ps. 1 and 2, and they are cross-examined as R.W. 1 and R.W. 2. Heard both sides. The learned Counsel for complainant has argued that as per paras 3 and 4 of the complaint, the complainant was involved in road accident, and sustained fracture of the leg on 18.3.1997, and he was operated on 24.3.1997 in O.P. Hospital for fracture of lower right leg femur. No proper blood test was done, x-ray photo showed communited fracture. Bone was cut in pieces. For the non union of it, cause is not made out, as per cross-examination. On 3.5.1997, O.P. hospital refused to treat him. He was having severe pain. Pus formation was there. There was swelling thigh. Operation Theatre should have been fumigated to avoid infection. Infection was due to failure of blood test prior to surgery. Before transfusion, blood was not tested. Wound was a closed one. There was no bleeding in the accident. External fixator reduces the chronic of infection. Medical records give the details of period of stay in O.P. hospital by the complainant. For 46 days, bill amount was collected. The complainant is having oozing even now. He went to Hosmat Hospital, as O.Ps. refused to treat him on 3.2005. External fixator was fixed there. Even now, his right lower limb is shortened-physically handicapped, preventing him to exert physical force to work. It is all due to the negligence and deficiency in service by O.Ps. in treating him. He has suffered a lot, and even now suffering. Compensation claimed deserves to be awarded, written argument is also filed.

The learned Counsel for O.Ps. has argued that the complainant involved in road traffic accident was treated in Adichunchunagiri Hospital before coming to O.P. 1 hospital. Para 32 of the version is pointed out. 10.10.2002 National Commission Decision para 3 is cited, affidavit of O.Ps. is not rebutted by any material. O.P.''s 2 affidavit is not denied. Operation was performed only after patient was found fit by the specialists. Para 2 of cross examination is pointed out. Loose fragments not to be removed. There was no bone infection. Complainant is to negative it. Hosmat doctor is competent to speak. Dr. Chandramouli has filed affidavit, as Specialist. He is not subjected to cross-examination by complainant. Ext. C42 X-ray shows reduction of alignment is good. There are different causes for infection. Operation Theatre was fumigated and for each operation, used material is placed by fresh one. Surgery was successful. There is no rebuttal by complainant. Page 2, Para 3 of complaint is pointed out is not correct that bone pieces not removed.

POINTS for consideration are : (1) Whether the complainant has proved that the O.Ps. viz., M/s. Mallige Medical Centre and Dr. S. Muthu, Orthopaedic Surgeon have neglected the patient, and rendered deficiency in service in treating him, during his stay in their hospital, and he suffered because of it. (2) Whether the complainant is entitled for the compensation of Rs. 10.00 lakh as claimed? (3) What Order? We answer it in the : (1) Negative, (2) Negative, (3) See operative portion of the Order

Point No. 1-We have perused the complaint, version, affidavit of both sides, and cross-examination of the witnesses CW1 and RWs 1 and 2, and Exts. C1 to C42. We have taken note of the contention of the both sides, in their oral arguments, and also the written arguments produced. The complainant has filed his affidavit in support of the case as evidence, and supporting the complaint allegations. He is cross-examined as C.W. 1 by the other side. According to that, he has taken first aid treatment at Adichunchunagiri Hospital, Vellore Cross, where he was given injection, and does not know about the other treatment, after his traffic accident on 18.3.1997, and he has paid charges there. On 19.3.1997 at about noon, he was admitted to O.P. 1 Hospital probably at 3.30 p.m. He was given local anaesthesia, and he does not know what surgical procedure has been adopted, and later on he was told by the doctor. He does not know what are the bone pieces to be removed, and what are the bone pieces not been removed at the time of the operation conducted on him. He has admitted that the pieces of bones are joined in the course of operation, and O.P. 2 treated the bone grafting, and joined the injured bones. He was advised to come after 6 weeks from the date of discharge, and not to put pressure on his right leg, and take bed rest, and take prescribed tablets, and accordingly he took it. After seeing the X-ray taken at O.P. 1 hospital, O.P. 2 Dr. S. Muthu told that the operation has been done properly, and the screws have come out, which was also concurred by the Boring Hospital Doctor, to whom it was shown. He has admitted that he went to O.P. 1 hospital on 3.5.1997 for further treatment. He has produced the documents relating to the treatment taken in another hospital after the discharge from O.P. 1. He has also produced the documents of O.P. 1 hospital of his treatment. He has denied the suggestion put forward by the O.Ps. in cross examination. Except this evidence, complaint and affidavit, there is no other corroborative material in support of the case of the complainant. It is to be seen from the documents produced by the complainant in this case, whether the evidence of the complainant is substantiated. The complainant has relied on Exts. C1 to C42. Ext. C42 is the x-ray taken after the surgery of the patient which is shown to both the O.P. 2 and doctor at Boring Hospital, and both of them have concurred that the operation is properly done, and the screws have come out as admitted by C.W. 1 in his cross-examination. Exts. C1 and C2 are the Legal Notice dated 23.9.1999, and postal acknowledgements shown that the O.Ps. have served it. Exts. C3 and C4 are the discharge summary of the O.P. 1 hospital. According to that, date of admission is shown as 19.3.1997 and date of discharge is on 26.4.1997. The complainant has sustained injury of right thigh in the road traffic accident on 18.3.1997. He is known epileptic on phenograd 60 mg tablet since 5 years. On examination, his pulse rate, BP and others are recorded. Regarding the injuries abrasion in the right shoulder, and swelling and tenderness in right ditel femur. Again result of tests done are noted, and x-ray of the right knee on lower 1/3 of the thigh was taken communited intercondy. Supercondylar to the right femur, x-ray of the pelvis AP, no fracture. Liver function test and other tests were recorded between 21.03 to 04.04. C.T. Scan plain (cranium) normal. It was diagnosed as communited intracondylar and supracondylar right femur. Under treatment, the opinion of Dr. P.J. Acharya, Neurologist was taken, and he advised to continue anti-eleptic drugs. S/B Dr. T.S. Ravindra, Physician for Hypertension, the details of the surgery is noted, and also the administration of the general anaesthesia, it was noted on the 9th post-operative day purulent discharge from the lower 1/3 of the thigh. Exploration, lowage and Gentamicinbead placement RT done on 3.4.1997. Post operatively patient improved. 3 pints of blood transfusion was made, and injections and tablets were prescribed. Advice on discharge is taking of tablets prescribed, and daily dressing and review after 6 weeks at 9.30 a.m. It is issued by Dr. A.V. Srikanth. Exts. C5 to C14 are the records of Hosmat Hospital. Ext. C15 is the medical certificate of Government of Karnataka of Orthopaedically Handicap Candidate issued by the Orthopaedic Surgeon, Boring Hospital. Extent of disability is shown as 60%. In support, there is no corroborative evidence of the concerned doctors, and no affidavits are filed. Exts. C16 to C28 are also of the same hospital consisting of 11 pages, they are Discharge Summary during the above period, and the scanning report. Exts. C29 to C40 are the bills issued by the Hosmat Hospital to the aptient for the stay and treatment of the complainant. In those records, there is no material pointing out the deficiency in service of the O.P. hospital, when the complainant approached them for further treatment. These record show that he was admitted to HOSMAT Hospital on 5.5.1997, and till 13.10.2001 he has taken treatment as per Ext. C28-C.T. Scan Report. This is after the treatment in O.P. Hospital. As per C.T. Scan Report, old fracture loser shaft of femur with malunion, and modeling deformity. The cortex of the lower femur is thickened with Sclerosis medial accentric aspect. A lytic defect in the lateral aspect lower right femoral shaft with adjacent tract or soft tissue collection in distal lateral aspect of femur behind the patella laterally. A soft tissue scar is noted adjacent to the chronic Osteomyelitis, defect is noted in the intercondylar aspect behind patella. The distal femoral shaft and articular margin shows rare fractions and expansion. Patello femoral joint space is reduced. Knee joint space appears reduced. Proximal tibial shaft shows some cortical thinning. This is issued by a consultant Radiologist with the note Orthopaedic perusal. From the above, it is clear, even after treatment in Hosmat Hospital, complainant was not able to get rid of his problems.

FROM the available material on record, there is controversy between the parties as to the cause, for which patient went to Hosmat Hospital. According to complainant, on 3.5.1997, the O.P.1 hospital and O.P. 2 doctor refused to admit and treat him, in spit of severe suffering. According to O.Ps. on 1.5.1997, father and brother of the complainant approached O.P. 2, and informed the complications developed in the condition of the complainant, and he asked them to bring the patient for review, and accordingly on 3.5.1997, the complainant went to him, and after examination, he treated him, and advised to wait for some time for automatic improvement in his condition before taking next phase of action regarding the fracture, and the wound, and the pus formation. According to the complainant, the case records of the O.P. hospital is silent in that regard, if really O.Ps. have treated, that would have found place in the hospital records, such as case sheet, and the doctor''s orders and nurses notes. The O.P. has produced the entire records pertaining to the complainant in this case. The complainant has not made effort to point out the above facts. The O.Ps. though produced the records, have not got it marked to be considered in this case. No reason is forth coming for this omission. On the perusal of the doctor''s orders, it is seen that at page 11 of the file in the date 3.5.1997, there is a note of change of dressing, and tablet Ciphron was prescribed one at bed time. Capsule Amplew of 500 has advised twice a day and capsule line proxyun is advised one at bed time. There is a note that patient wants to get discharged. The instructions are given to continue the same treatment, and to review after one week. The case sheet starts from 19.3.1997, and ends at 25.4.1997. The nurses daily record starts from 9.3.1997, and ends at 26.4.1997. In the summary sheet of 19.3.1997, there is a mention that on 3.5.1997 at 4.10 p.m., the patient was admitted, and was discharged on 3.5.1997 at 8.30 p.m. There is an authorization for medical, and/or surgical treatment on that date by the relatives of the patient S. Manjunath. It was noted in the enclosed sheet on 3.5.1997 at 7.00 p.m., O.P. 2 has noted that patient complains of pain in the right thigh, and discharged minimal Afrabrile, and dressing changed. The nurses daily record, there is an entry that M-OT dressing done by Dr. Ram Reddy, and consultant is Dr. Muthu O.P. 2, and name of the patient is Manjunath. So, from the above material, it is clear that the grievance of the complainant that he was not admitted, and he was not treated by the O.P. hospital is controverted. On the other hand, he has been admitted, and treated as deposed by R.W. 2 in support of their version. The contention of the complainant contrary to it, cannot be accepted, and it is rejected. After this treatment, according to the O.P., the patient did not turn up for further examination as suggested. According to the complainant without any choice, he was forced to go to HOSMAT Hospital as the O.P. 1 and O.P. 2 refused to admit and treat him. But the above material shows that the complaint of the complainant in that regard is not correct, and it cannot be accepted, and it is rejected. FROM the above material, it is clear that the complaint allegations are not substantiated from the material available on record. It is to be seen whether O.Ps. evidence any way helps the complainant in support of this case. In that regard, the cross-examination of R.Ws. 1 and 2 are material. Both R.Ws. 1 and 2 have filed their affidavits in line with the version, and denying the case of the complainant. R.W. 1 Dr. S. Muthu, O.P. 2 in this case in the course of the cross-examination has deposed that necessary investigations were done viz., blood count, C.T. Scan, X-ray of the chest, and of pelvis and urine of the patient, and thereafter referred to Neurologist for seeking opinion. They have not done pre-operative blood collection since it is not mandatory. He admits the suggestion that they are maintaining pre-operative assessment records in their hospital, and it is produced. External fixation is not necessary in this case as it was a closed fracture. X-ray of the patient shows that there was a good alignment of bone after the surgery. After the surgery, the complainant developed fever on 29.3.1997, and dressing was soaked. Antibiotic was continued, pus was sent for culture, and as he was anemic, blood transfusion is given when the patient underwent 2nd operation on 3.4.1997, the wound was explored, pus was drained, and removal of the Necrotic tissue was done with administration of the antibiotics. Only soft tissue was removed, pus in the soft tissue was excised. Loose fragment of the normal bone during the fracture fixation not to be removed as most of the fracture fragments in this case forms part of an articular surface of distel femur of the removal of the same will result in the loss of joint surface, and shortening of the limb. When there is an infection into the bone, the dead bone tissue had to be removed. In this case, there was no infection. After seeing X-ray at Ext. C42, it shows reduction and alignment is good in Gentamicybeads placement. They have placed the Gentamycinbeads at the site of the infection, and also covered with systemic antibiotics. The causes of infection after the surgery were patient depended factors including nutrition, immunological status, infection at remote site, surgeon depended factor, prophylache antibiotics, skin and wound care, operated environment surgical technique etc. Operation was done in sterile condition, which means, there is no pathogenic organism. Hospital maintains the record relating to fumigation. He has stated that the complainant was admitted to the Hospital on 3.5.1997, and on the same day he got discharged on his own, by putting the suggestion, the complainant has admitted stand of the O.Ps. supported by the record. He has denied the suggestions that the patient was made to go to the second surgery as he has not removed the bone pieces, when he operated the patient for the first time, and because of poor fumigation, the patient developed infection,and he refused admission of the complainant on 3.5.1997, and since he refused to admit him, he was forced to go to Hosmat Hospital. The above evidence of R.W. 1, strengthen the case of the O.Ps. and does not any way help the case of the complainant. On the other hand, the complainant has taken such a stand which is negatived by his own suggestion to R.W. 1. According to R.W. 1, there was an improvement after the operation as per Ext. C42, and all the necessary tests were done, and opinion of the Neurologist also was taken before surgery, and he has explained that external fixator was not required in this case, and they have treated the patient for development after the first surgery, and prescribed medicines, and he has given many causes for infection, and he has clearly stated, there was no bone infection in the patient. The evidence of this witness regarding the condition of the Operation Theatre is not negatived by the complainant by any material, but only put the suggestion which is denied. So complainant''s case is nowhere benefited by the evidence of this witness. On behalf of O.P. 1 Dr. Ram Reddy, Superintendent of O.P. 1 hospital, has filed his affidavit and given his evidence in the cross-examination. He has denied the allegations in the complaint in his affidavit. In the cross-examination, he has stated that for the last 10 years, he is working as Superintendent, and they maintain sterilization records, and fumigation records in the Operation Theatre which can be produced. Fumigation is done alternate days depending upon the load of the number of cases, but not daily. There is surgery every day in the O.P. 1 hospital. There are 3 Operation Theatres, and it is not necessary to do fumigation after every major surgery. After every operation on rotation in the OTs, everything will be changed by replacing used articles. After every operation, sterilization is required, and it is done. He does not remember the chemical used for the sterilization. Before the operation of the complainant, OT was completely fumigated and sterilized. The evidence of the above witness negatives the allegations of the complainant. The comment is made that he is not aware of the actual chemical used for the sterilization. It does not in any way damages the case of the O.Ps. The case of complainant is the infection is caused because of the failure to fumigate the Operation Theatre, and sterilize the surgical instruments. The evidence of both R.Ws. 1 and 2 negative the same, and it is not rebutted. Mere putting suggestion is not sufficient. Having made serious allegations in the complaint, it is the duty of the complainant to substantiate it, with all the available material, which is not done. From the above material, it is apparent that the complainant has failed to make out the case as alleged in the complaint. On the perusal of the written arguments of both sides and pleadings, and the evidence recorded, and documents, the O.Ps. have satisfactorily negatived the case of the complainant which is without any support of any corroborative material based on the sole testiony of the complainant. The medical records produced considered above, also supports the O.Ps. The evidence of R.Ws. 1 and 2 show that there are no admissions favouring @ complainant in support of the case. Under these circumstances, point No. 1 is answered in the negative.

IN view of the discussions and findings in the above paras on point No. 1, complainant is not eligible for any compensation. He has failed to substantiate the case as set-up. So, point No. 2 is also answered in the negative, and complaint has to be dismissed. Looking to the facts and circumstnaces of the case, we feel this is not a fit case to award exemplary cost as claimed by the O.Ps. The Government of Karnataka Certificate shows that the complainant is disabled by 60%, and he cannot freely move about, and take any strain in doing physical work. He is a young Engineer deprived of his future prospects in the job, because of the deformity, as a result of the Road Traffic Accident, which could not be rectified even by Hosmat Hospital, and it is still continuing as per the C.T. Scan report, referred above. Under these circumstances, we pass the following Order. ORDER For the reasons discussed above, the complaint is dismissed, and each party to bear their costs. Complaint dismissed.