S.RAMANUJAM vs C.P.SREE KUMAR, M.S.(ORTHO) MANAGING DIRECTOR

THIS case illustrates the height of negligence on the part of Doctor resulting in permanent disability of a young man of 42 years limiting his rest of the life to crutches. Admittedly, the Complainant was admitted with the complaint of hairline fracture. Within a period of 10 days Hemi-arthroplasty (i.e. replacement of original bone) was conducted and within a period of three and a half years he had to undergo total hip replacement surgery. This Appeal is filed by the Complainant, Ramanujam, against the opposite party, Dr. C.P. Sreekumar, Managing Director, Sooriya Hospital, alleging deficiency in service and medical negligence. Initially a claim of Rs.2.5 lakhs was filed before the State Commission and by order dated 26.12.1996 of the State Commission he was allowed to amend the complaint to enhance the claim to Rs.12 lakhs. His Complaint No.294/93 was dismissed by the Tamil Nadu State Commission by order dated 29.1.1999. Aggrieved by the same, he is in Appeal before us.

THE Complainant was employed in Indian Overseas Bank, Chennai at the relevant time of filing the complaint. On 31.12.1991 at about 8.20 a.m. while he was going on his cycle, he was hit by a motorcyclist and fell down. On the same day at 9.45 a.m., he was taken to the opposite party hospital and got himself admitted. After taking x-ray, it was found that he sustained hairline fracture at neck of right femur. Initially the opposite party started treatment under conservative line of management since it is a hairline fracture. On 8.1.1992 the opposite party decided to take an x-ray. It is the say of the Complainant that although the hospital had no adequate facilities for transporting and shifting a patient like Complainant who was not be subjected to any jerk or shake in the body, the staff, while shifting the Complainant to x-ray room, i.e. from first floor to ground floor, subjected him to rough handling which resulted in widening of the fracture. Subsequently, on 10.1.1992, the opposite party hurriedly conducted a Hemi-arthroplasty surgery by removing the original bone. It is averred by the Complainant that the opposite party could have opted for internal fixation surgery within two days of admission whereas due to rough handling and negligence of the staff, the simple hairline fracture in neck of femur developed from Grade I to Grade III level. Thereafter, the opposite party committed a serious blunder and negligence by adopting the line of treatment by doing Hemi-arthroplasty surgery which was not to be opted at that initial stage. As there was constant pain, he had to go for another total hip replacement surgery within three and a half years. It is contended by the Complainant that the opposite party was negligent and careless in choosing the mode and the manner of treatment as well as performing the surgery. The said surgery is meant for older people and at the time when the surgery was performed he was only 42 years old. He became 60% disabled due to negligence on the part of the opposite party and a certificate to that effect is placed on record. The complainant contended that the fracture got widened from Garden Type I to Type III with worst prognosis only due to rough handling while shifting him from bed to stretcher and again while taking him to x-ray room on 8.1.1992 by the staff of the opposite party which included one ward boy, Elango, and construction workers who were untrained. During this process, i.e.: a) while rolling the Appellant with plaster of Paris bandage in the affected leg from bed to hand stretcher; b) while carrying him on the stretcher through stair case, he suffered wide jerks due to rough handling; c) and while shifting him from hand stretcher to x-ray table etc. The Complainant contended that the weight of the leg was placed on the other wounded leg which widened fracture further.

THE Complainant stated that the ward boy Elango and the three construction workers actually carried on the shifting process and that due to their brutal and rough handling, his leg got twisted; hence, he suffered unbearable pain and started crying. The Complainant also pointed out that on 8.1.1992, the lift was not working due to power fluctuations. This fact was admitted by the opposite party and although mobile x-ray facility was available, it was not availed by opposite party to take the x-ray. It is argued by the Complainant that when the lift was not working and when they had insufficient staff to shift him to the x-ray room which is on the ground floor, the x-ray could have been taken on the next day. It is his case that the initial x-ray which showed simple hairline fracture developed Grade-III level when x-ray was taken on 8.1.1992. After seeing the x-ray, the opposite party advised that the fracture would not join naturally and hence he operated on 10.1.1992. The said operation is called "Hemi-arthroplasty" i.e. replacement of original bone (Head of Femur) with Austin Moore Prosthesis (Metal ball with Stem and Stem inserted into Meddillary Cavity of Femur).

WHEN the Complainant asked as to why the bone was removed, the opposite party informed him that it was removed because it was damaged and started liquifying. It is contended by the Complainant that his wife and the colleagues who had virtually touched and pressed the removed bone, they felt that it was in good and strong condition and was not softened or damaged, as alleged by the opposite party. Due to the removal of the original bone, the Complainant was unable to work properly even with two elbow clutches. Further, it is contended that the operation done was also not correct for the following reasons : (a) Metal Prosthesis : The metal prosthesis fixed was bigger in size than the requirement. The implant size is actually 49 mm whereas it is written 47 mm in his discharge summary. The alleged metal removed during the surgery which he had undergone on 28.4.1995 was available with the Complainant even now to corroborate his case. It is argued that O.P. used a bigger size metal than what was required but covered it up saying 47 mm. It is contended that due to the usage of the wrong size prosthesis the Complainant could not place any weight on his right leg as alignment was improper and his hip movements were not only restricted but very painful. Due to bigger size metal, the friction and wear and tear between the socket bone and metal resulting in chronic pain which necessitated a major operation, i.e. "Total hip replacement" within a short period. (b) Infection: The Complainant averred that after the operation he was not kept in the post-operative ward to avoid infection. It is only after the 12th day of the operation the opposite party realized that there was pus formation in the operated area which should have been normally detected within three days which he failed to do. This amounts to clear negligence and deficiency in service by the opposite party. The infected area had to be aspirated by making the place as hollow with 2" radius and antibiotic injections were given for 10 days for healing the same. It is contended that the infection had formed due to the opposite party"s unsterlised surgical instrument and suture materials. Due to this infection, the right thigh muscle became weak and the Complainant is suffering from heavy pain at every inch of turning of his leg. He stated that he is unable to walk independently till today even after sufficient physiotherapy exercises. Later, deep infection got set in at the site of the operated wound which created a major problem and this fact has been shown in the discharge summary dated 5.2.1992. All Orthopaedic surgeons, who were consulted subsequently, advised the Complainant that this infection took place due to unsterlised surgical materials, theatre, etc. This resulted in further treatment and finally he had to undergo another surgery. (c) Second operation of hip replacement: Ultimately, because of the wrong procedure followed by the opposite party and because of his negligence, the Complainant suffered continuous pain in his right leg and hence, he had to undergo "total hip replacement" on 28.4.1995 at the Tamil Nadu Hospitals. It is argued that the discharge certificate issued on 9.5.1995 clearly indicates that the Hemi-arthroplasty done earlier was a total failure. Admission: It is averred by the Complainant that the opposite party was fully conscious of his negligence and hence admitted to pay a total amount of Rs.3 lakhs to the Complainant. The Complainant sent a notice on 13.7.1992 demanding Rs.3 Lakhs and on receipt of the same, the O.P. personally came and paid Rs.50,000/- and promised to pay the balance within a month from 10.10.1992. Since O.P. failed to keep his commitment, another notice was issued on 19.11.1992 to which O.P. replied on 15.12.1992 denying all the liabilities. He went back on his commitment and did not pay the balance amount of Rs.2.5 lakhs. It is contended by the Complainant that the very fact that the opposite party paid Rs.50,000/- itself is a conclusive proof of admission of his negligence. The explanation given by the opposite party that the Complainant was creating nuisance in his clinic and in order to avoid an amount of Rs.50,000/- was paid is a false and concocted story. It is further averred by the Complainant that the opposite party could have lodged a police complaint if any nuisance was created by the Complainant, which the opposite party did not choose for obvious reasons. Lastly, the Complainant submitted that he was only 42 years of age at the time of the accident and suffered Garden Type - I fracture which demanded only internal fixation surgery, the first stage of treatment, which should have been done by opposite party, whereas opposite party had gone to second stage of treatment, i.e. removal of neck and head of femur bones etc. jumping over the precious option of saving the original head of femur bone. Submissions by opposite party: Learned Counsel for the opposite party submitted that the State Commission rightly dismissed the complaint after coming to the conclusion that there is no negligence or deficiency of service on their part. It is stated that after seeing the x-ray taken on 31.12.1991, the opposite party made a provisional diagnosis confirming the fracture of neck of the right femur. In his version it is submitted that Doctor had two options of treatment " one was the conservative line of management by immobilization of fixing derotation boot to prevent the rotation of the leg; and, the second option was internal fixation of the fracture. After evaluating the condition of the patient and considering all the options, he chose the first one and the Complainant was put on derotation boot, also protected by placing pillows on both sides with the help of sand bags. It is stated that opposite party adopted the conservative method as he was of the opinion that it might help the fracture to heal by itself within six weeks time without surgery and that the chance of union should be explored by non-surgical method. He was under observation and since the Complainant had severe bronchitis, he was allowed a reclining position in bed.

It is submitted that on 8.1.1992, after review and revaluation, it was found from the x-ray that there had been a displacement to the fracture and widening of the fracture despite immobilization of the hip and he attributed it to Muscular Spasm. In the best interest of the patient and after obtaining his consent he conducted the Hemi Artho Plasty operation. Learned Counsel for the opposite party contended that before the surgery the patient was examined by other Doctors on 9.1.1992 including Dr. Jayaraja, Cardiologist. He further stated that the opposite party was assisted by Dr. Rajendran and Dr. Namasivayam while performing the surgery. He submitted that the Complainant was pursuing his daily activities like attending his office, and it was only after three years after the discharge that he had a total hip replacement in Tamil Nadu Hospital. In all orthopaedic cases a review after a few years is absolutely necessary. The Patient was discharged on 5.2.1992 and he was advised to attend physiotherapy daily as outpatient after two weeks and the patient had only come for a few sessions and not regularly, for the period advised. He further submitted that the Complainant relied only on the medical books and no Doctor was examined to prove allegations of negligence on the part of the Doctor or the staff. The Complainant had enhanced the claim of compensation to Rs.12 lakhs which is barred by limitation. He was reimbursed by the bank on 3.8.1995 a sum of Rs.1,03,969/- towards the claim submitted for the total hip replacement. He further denied that the entries on 7.1.1992 and 8.1.1992 in observation and treatment chart were not made and that it is not necessary to record as the similar pain killers were given. Opposite party denied that the document prepared regarding the treatment on 7th and 8th is a contemporaneous document as alleged by the Complainant. Lastly, the learned Counsel for the opposite party argued that the appeal be dismissed with costs.

WE have carefully gone through the record and considered the arguments of both the parties. It would be useful to recapitulate the sequence of events. On 31st December, the Complainant only suffered hairline fracture at neck of right femur (described as Garden Type I fracture). The Complainant was admitted in the opposite party"s hospital and the opposite party immobilized his leg by putting a 12" plaster and advised him total bed rest. The Complainant alleges that the Doctor advised him that a six week bed rest should enable the hairline fracture to heal on its own, though the opposite party denies it. However, it appears to us that unless the opposite party had so advised, there was no need to immobilize the leg and keep him in that position for the subsequent 9 days, as it happened. On the 9th day, i.e. on 8th January, 1992, the patient was taken for an x-ray for reviewing the case, as averred by the opposite party. We do not see any reason for this since there was no complaint from the patient during those nine days nor was any change in the status of Complainant"s health as recorded by the Doctor. The x-ray taken on 8th January, 1992 showed that the fractured bones were displaced and that the hair line fracture developed to a displaced fracture (Garden Type-III). The Complainant alleges that this has happened because he was moved from the first floor to the ground floor over the steps by the ward boy and some labourer in a very crude fashion for taking x-ray, and careless shifting of him from bed to a stretcher caused him great amount of pain in the fractured leg. The opposite party, however, contends that the hairline fracture developed into displaced fracture due to muscle spasm. There is no way to ascertain the reasons for this development, but one cannot disregard the averment made by the Complainant that it is due to rough handling of the staff of the hospital.

IN his cross-examination opposite party stated that: "It is incorrect to say that at the time when the patient was admitted to my hospital civil construction was going on. In my hospital lift was installed but not working due to power fluctuation, it was not working for one or 2 days is correct. Without verifying the records I cannot now say whether the lift had been installed on 8.01.92 in my hospital. Hospital was opened on 11.12.91. It was a newly constructed hospital. Until 11.12.91 my hospital was not functioning. On 11.12.91 my hospital the 3rd floor was not opened only the ground. 1st and 2nd floors were open. In the 3rd floor construction work was going on. Repeat x-ray is normally taken on the 8th or 9th day".

It is correct to say that on 08.01.92 when the patient was shifted from his room for taking x-ray one ward boy Elango was there. He is no longer in my employment. It is not correct to say that when Elango was shifting the patient for x-ray there were three coolies lifting him." This admission also corroborates the claim of the Complainant that at the time of taking his second x-ray he was not properly shifted. A hospital, in which operation or surgery is carried out, is expected to have trained staff so that they can handle the patient properly. In this case allegation is that three coolies and one peon of the hospital were deputed for shifting the patient from one floor to another for having x-ray. It is alleged that the patient was roughly shifted which might have caused widening of the fracture.

WITHIN two days after the second x-ray, i.e. on 10th January, 1992, the opposite party operated on the Complainant, a procedure known as Hemi-arthroplasty. A reference to the literature on record shows that a hip fracture is normally handled in four phases; first, closed reduction is attempted. If it fails, an open reduction is attempted where through surgery the bones are brought together and clamped by metal screws etc. When open reduction also fails, Hemi-arthroplasty, a surgical procedure in which half of the joint is replaced with an artificial surface leaving the other half in its natural state, is attempted. However, if the surgeon thinks that the total hip replacement is necessary, it is done as the fourth step. The medical references quoted above by the Complainant clearly show the medical opinion that closed reduction and open reduction must be tried in patients who are below 60 years of age. Hemi-arthroplasty and hip replacement are considered generally only for patients of the age of 60 years and above. The choice between Hemi-arthroplasty and total hip replacement is essentially a question of costs. The former one requiring shorter surgical time, lower medical costs and lower prosthesis costs (costs of Bio-mechanical or metal parts). A Hemi-arthroplasty has a negative aspect that the metal prosthesis can cause erosion of the natural socket (Acetabular Cartilage) due to friction. In this case, the opposite party was clearly wrong in rushing for the Hemi-arthroplasty on a patient who was just 42 years of age and who was healthy otherwise. The Complainant, who is appearing in person, contends that because of his suffering he was required to study various medical text books and he has found out that the treatment given by the opposite party was totally erroneous.

FIRSTLY , he pointed out that there was no justifiable reason for the opposite party in not carrying out operation at the initial stage when he was admitted to the hospital because the fracture was on the hip bone and some movement was bound to occur even if the person is in plaster and this is likely to increase the gap. He contended that it was the lame excuse on the part of the opposite party that the widening of the fracture took place because of muscular spasm. Secondly, he pointed out that as per the medical text in case of young and middle aged adults close reduction and internal fixation is the proper method of treating the hair line fracture. In patients under 60 years of age every effort ought to have been made to preserve the femoral head because prosthetic replacement was bound to fail with passage of time. In support of the aforesaid contention the Complainant has referred to the following medical text references which inevitably states that in case of patient under the age of 60, surgery which was carried out on the Complainant ought not to have been performed by the opposite party. He ought to have tried internal fixation at the earliest. The Complainant referred to : (a) The basis and Practice of Traumatology edited by Sean Hughes: "Many Surgeons therefore select arbitrarily an age of 70 years, before which the head should be internally fixed to the neck after reduction of the fracture, and above which the head is removed and replaced by a prosthesis such as the Austin Moore or Thompson hemiarthoplasty. This policy firstly preserves the femoral head in younger patients and secondly avoids a period of immobilization for older patients who already run an increased risk of non-union." (b) Intracapsular fractures of the neck of the femur by Peter Cox: "Internal fixation may reasonably be offered to mentally alert, independent and fully mobile patients, whose life expectancy is likely to exceed 5 years provided that the fracture can be accurately reduced. In patients under 60 years of age every effort must be made to preserve the femoral head. Prosthetic replacement will inevitably fail with the passage of time." (c) Essential Orthopaedics and Trauma by David J. Dandy : "Internal Fixation versus prosthetic replacement: Indications: Internal fixation: fit; young, little displacement Prosthesis: unfit, old, displaced fractures Results Internal fixation: better long-term result. More complications. May need second operation. Slow rehabilitation. Prosthesis: early mobilization. Long-term complications are rarer but more serious. A good guideline is to fix the fractures of patients under 65 and replace the rest. Methods of internal fixation of femoral neck fractures: (a) multiple pins; (b) crossed screw-nails; (c) compression with dynamic screw and plate." (d) Practical Fracture Treatment by Ronald McRae: "In the case of young and middle aged adults, most centres advocate closed reduction and internal fixation of all grades of intracapsular fracture""".In elderly patients Type 2 fractures are also usually treated by closed reduction and internal fixation. Type I fractures are generally treated in the same way in order avoid the risks of disimpaction, but in a very few centres are managed conservatively. In the elderly fit patient internal fixation is usually extended to include fractures of Types 3 and often Type 4, the view being that if the complications of vascular nercrosis or non-union supervene, that the patient will be able to tolerate a secondary procedure (usually a total hip replacement). Where the risks of either of these complications are considered in the otherwise fit elderly patient to be particularly high (e.g. a badly displaced proximally situated Type 4 fracture) then a primary total hip replacement procedure may be considered. Where the patient is less fit, with a life expectancy of perhaps a few but not many years and the risks of complication are also thought to be high, a hemi-arthroplasty may be considered."

In his cross-examination the opposite party has admitted as under : "I agree that in patient"s under sixty year of age every effort must be made to preserve the feumal head. I agree that prosthetic replacement will inevitable fail with the passage of time."

IF this was the position, then we fail to understand why the opposite party performed such an operation. For that there is no explanation given by the opposite party. The opposite party in his cross-examination further stated that : "I recognize the fact that it was necessary to keep the femoral head from a vascular necorsis due to deterioration of fracture site according to garden classification. I decided to go in for surgery instead of conservative management. "". I am aware that there is an alternative mode of treatment for fracture neck of femur called Dynamic Hip Screw (DHS) which is usually performed for (intertrochantric fracture)".

FURTHER , if a hairline fracture could develop into a displaced fracture due to muscle spasm, it is equally possible that it could also develop due to rough handling of the leg, as alleged by the Complainant, as the records show that till 8th the Doctor did not record any complaint of pain from the Complainant. Further, the Complainant was discharged on 5.2.1992 and was asked to come for a review after two weeks. The Complainant himself got admitted on 2.3.1992 in the opposite party"s hospital with a complaint of restricted movement of the right hip. He was asked to wear de-rotation boot on the right leg. He was discharged on 6.3.1992 and was asked to come for review after two weeks. Thereafter, on 16.3.1992, the Complainant approached one Dr. P.V.A. Mohan Das of the Madras Institute of Orthopaedics and Dermatology with the complaint of pain in the right hip and inability to walk for the last two and a half months. Dr. Mohandas has recorded as follows : "The present x-ray shows Varus Deformity of the Prosthesis.I think he still has lingering infection and loosening of the prosthesis." Dr. Mohandas saw him again after a few days and recorded that he has infection and so advised him for removal of the prosthesis "after infection has become quiescent, Total Hip Replacement."

Incidentally, it may be mentioned that in the discharge certificate given by the opposite party on 5.2.1992, there is an entry of 24.1.1992 mentioning "Pus Culture". Thus, it is clear that as argued by the Complainant the infection was attended to by the opposite party only 14 days after the operation. The entries made by Dr. Mohandas clearly show that the Complainant had lingering infection even on 16.3.1992 and that there was loosening of the prosthesis (the metal head). This clearly shows that the patient had infection; it was not properly attended to by the opposite party ; and that there was loosening of the prosthesis within two months after the operation. In view of this, we have no reason to disbelieve the contention of the Complainant that he had to consult the other Doctors as the wound did not heal and he was suffering from pain due to infection. On 27th May, 1992, the patient approached another hospital, namely Tamil Nadu Hospitals, with a complaint of hip and joint pain with movement of his right lower limb since March 1992 following the Hemi-arthroplasty. The Tamil Nadu Hospitals has recorded that the right hip joint aspiration was done under local anaesthesia and the aspirate was sent for C/S. It is clear that in a short while after the operation of Hemi-arthroplasty, the patient would not be knocking at the doors of other Doctors like Dr. Mohan Das and Tamil Nadu Hospitals, unless he had continuing pain.

ULTIMATELY , Dr. Mohandas saw the patient again after three years on 15.3.1995 with a complaint that "ever since the earlier surgery, he has pain in the right hip and is unable to walk. There is shortening of the right lower limb and it is also externally rotated. There is a difference of 3.5 cm between right leg and left leg." The patient was advised a revision arthroplasty of the hip. The patient finally underwent a total hip replacement on 28.4.1995 at the Tamil Nadu Hospitals, Chennai.

IN the Discharge Summary dated 24.4.95 issued by the Tamil Nad Hospitals, Cheran Nagar, Chennai, it has been stated as under: "FINAL DIAGNOSIS :- LOOSE MALPOSITION HEMIARTHROPLASTY RIGHT HIP WITH SECONDARY OSTEORATHRITIS " INSULINE DEPENDENT DIABETES HISTORY AND PHYSICAL : This 46 year old patient was admitted with the c/o pain right hip on walking and weight bearing. He underwent Austins Moore Hemiarthroplasty right hip in Jan.92 for fracture neck of femur elsewhere. Post operatively he developed superficial wound infection. Patient has not bore weight on the right lower limb since the surgery in 1992. A known diabetic for 2 years on irregular treatment and not a hypertensive."

This also reveals that the operation performed by the Respondent was not proper. From the aforesaid record it is apparent that there was deficiency on the part of the opposite party firstly, in not following the procedure of internal fixation; secondly, the Hemi-arthroplasty performed by the opposite party was also defective; thirdly, considering the age of the Complainant Hemi-arthroplasty done was not justified as per the medical literature. Fourthly, the hospital in which operation or surgery is carried out is expected to have trained staff so that patient is given appropriate treatment and medicine as per the Doctor"s advice. If this is not done then simplicitor administration of medicine would not serve any purpose.

THE Complainant"s further contention is that the hospital/doctor did not maintain treatment record on the crucial days, i.e. 7.1.1992 and 8.1.1992. The opposite party is not able to meet this allegation, except to say that they have not written anything on those dates. Such information on the most important date goes missing from the record and the Doctor talks highly of it as though it bears no significance to write. This goes against the spirit of transparency in documenting the treatment. On 04.01.1992 General condition good Passed motion two times Feels comfortable Afebrile Treatment Tab Diclogesic 1-1-1 Cap Becozyme C forte 1-0-0 Tab Calmpose 5 mgs 1 hs 05.01.92 General condition same Right leg is kept in position with the sand bag Not feeling any pain Treatment Tab Diclogesic 1-1-1 Cap Becozyme C forte 1-0-0 Tab Calmpose 5 mgs 1 hs 05.01.92 Case seen by Dr. C.P. Sreekumar 1. Static quadriceps exercise 2. Urine for culture and sensitivity 06.01.92 General condition same Treatment Tab Diclogesic 1-1-1 Cap Becozyme C forte 1-0-0 Tab Calmpose 5 mgs 1 hs Static quadriceps exercise 07.01.92 No complaints

IF there is nothing recorded on 7th except "No complaints" then how is it that there is nothing recorded on 8th by the Doctor and specially where Grade I has become Grade II? There is no explanation for this by the Doctor. The patient"s complaints cannot be sudden unless something drastic has happened on 8.1.92. The change in his condition is obviously due to rough handling as contended by the Complainant which resulted in damage of his leg. The Doctor in his cross-examination dismisses the question alleging that the notings are not made by him in the history sheet: "Q. After 6.1.92 entry, in Ex.B-1, the next entry is dt.9.1.92. In Ex. B-1 there are no entries relating to 7.1.92 and 8.1.92. A. It is not correct to say that the entries in pages relating to those dates have been removed. On 7.1.92 and 8.1.92, the patient had treatment. Every treatment given to the patient need not necessarily be recorded in the history sheet."

It is thus clear that: (i) a hairline fracture developed into displaced fracture due to wrong handling in the opposite party"s hospital ; (ii) the opposite party performed a Hemi-arthroplasty on a young patient of 42 years without considering open reduction and internal fixation and against established medical practices; (iii) the post-operative infection was not properly attended to ; and (iv) the Hemi-arthroplasty was not properly conducted with the result that prosthesis got loosened within a period of two months. There is thus a clear case of negligence and deficiency in service rendered by the opposite party. Quantum of compensation: For the compensation, we have to state that no amount of money would be sufficient to compensate the Complainant for his life long pain and agony because of the gross error/deficiency in service by the opposite party. He is required to undergo other operation as well as further treatment for ever. Apart from this, it has been pointed out that opposite party offered to settle the dispute by payment of Rs.3 lakhs. No doubt, this contention is denied by the opposite party.

AS rightly pointed out by the Complainant that the opposite party could have made a police complaint when he found the Complainant to be a nuisance which he did not choose. We cannot imagine how a Doctor could part with Rs.50,000/-, a large amount, to any patient without there being any strong reason for the same. The notices sent by the Complainant to the opposite party for the payment of balance amount itself shows that there has been some understanding between the parties at that time and that the opposite party went back on his commitment. It is a pathetic situation where the Doctor is insinuating the patient and discrediting him as nuisance value. This reverse transaction of payment of Rs.50,000/- by Doctor to patient speaks volumes in this case. It is large amount of money to be parted with and Doctor cannot speak of it in a light manner. It is apparent that the sum of Rs.50,000/- was paid to the Complainant by the opposite party, not for avoiding nuisance, as argued before this Commission; but, as contended by the Complainant, it was a part payment of the agreed amount of Rs.3 lakhs which was settled between both the parties at that time, since the opposite party Doctor was fully conscious of his negligence in this case. Instead of paying the balance Rs.2.50 lakhs the opposite party has alleged and attributed nuisance value to the Complainant and contended that he paid Rs.50,000/- only for avoiding that. We see no force in the contention of the opposite party.

FURTHER , Dr. Nandkumar Sundaram (FRCS), Consultant in Trauma and Orthopaedic Surgery from Tamil Nadu Hospitals has certified as under : "This is to certify that Mr. S.Ramanujam underwent a Right Revision Total Hip joint replacement on 28.4.95 for a failed hemiarthroplasty. This joint replacement may fail over a period of time and needs to be revised again with a new artificial joint. The cost for this revision surgical procedure would be approximately Rs. 3 lakhs."

This amount for third surgery is required to be paid by the opposite party. In view of the above certificate Complainant would need revisional total hip replacement which was operated in 1995 with a new joint, for this he submitted that he is in need of funds. This cost is required to be borne by the opposite party. It is a pathetic situation that a healthy bank employee for a mere hairline fracture was subjected to total hip replacement. He has become disabled and has to walk on crutches for life time due to the negligence of the opposite party. The agitated Complainant has brought volumes of medical texts and presented his case to prove negligence and deficiency in service of the opposite party. In view of the fact that tremendous mental agony has been caused to the Complainant in running to various Doctors and had to do thorough research regarding his case relying on the medical text requires not only appreciation but he should be adequately compensated. In the amended complaint, the claim is for the sum of Rs.12 lakhs. However, considering the fact that the initial claim was for Rs.2.50 lakhs, we think that it would be just and proper to award Rs.2.50 lakhs, as claimed; and, an additional sum of Rs.3 lakhs for the additional operation which is required by the Complainant, as per the certificate given by Dr. Nandkumar, is also awarded.

IN the result, the appeal is partly allowed. Opposite Party is directed to pay a sum of Rs.5,50,000/- to the Complainant which includes Rs.2.50 lakhs as discussed above and Rs.3 lakhs for future operation. For the amount of Rs.2,50,000/- opposite party is directed to pay the same with interest @8% p.a. from 10th April, 1992, i.e. after three months from the date of the surgery. On Rs.3 lakhs there shall be no interest. Opposite Party shall also pay Rs.25,000/- as costs to the Complainant.