ST MARTHAS HOSPITAL vs BUDDHARAM

-FOR the sake of convenience, the parties in this order are referred to according to their position in the complaint filed before the District Forum.

APPEAL No. 427/2007 is by opposite party No. 1 (for short, "o. P. 1") and Appeal No. 431/2007 is by O. P. 2 challenging the order dated 31. 1. 2007 passed by the District Consumer Forum, Bangalore Urban IV Additional, in Complaint No. 1981/2006 by which the District Forum has allowed the complaint of the complainant. The case of the complainant is that he got admitted to O. P. 1 Hospital for a treatment in respect of multiple injuries suffered by him in an accident occurred on 8. 6. 2004. The Doctors in O. P. 1 Hospital conducted the surgery on 14. 6. 2004. Thereafter, since the complainant continued to feel pain in the operated area, he again approached O. P. 1 Hospital and got admitted on 5. 7. 2004. The Doctors in O. P. 1 Hospital after examining the patient conducted the second operation on 8. 7. 2004. After the second operation, according to the complainant, pus was formed since the Doctors in O. P.-1 Hospital did not take proper care to remove the pus and the screws which were left out in the left leg during the second operation. This has made the complainant to go to Kamala Nursing Home and Orthopaedic Centre and got a third operation done. Thereafter, the complainant after obtaining the wound certificate issued by O. P. 1 Hospital filed the complaint before the District Forum alleging "negligence" on the part of the Doctors who conducted the surgery in O. P. 1 Hospital.

O. PS. 1 and 2 filed their version before the District Forum. O. P. 1 admitted that the complainant was got admitted to the Hospital and operated twice by one Dr. Sandheep. But, however, the O. Ps. do not admit any negligence as alleged by the complainant in his complaint. O. P. 2 is a Doctor in O. P. 1 Hospital and he is also the Head of the Department of Orthopaedics. He has issued a certificate as per the request made by the complainant. According to him he has not conducted any surgery and, therefore, he has been wrongly impleaded as a party to the proceedings.

BEFORE the District Forum both the parties have filed affidavits by way of evidence and produced documents, which were marked as Exhibits. The complainant in addition has also filed the affidavit of one Dr. E. Nagaraj, by way of expert evidence. The District Forum considering the evidence and the documents produced before it has allowed the complaint by its Order dated 31. 1. 2007 directing the O. Ps. to pay Rs. 3,00,000 as compensation and also Rs. 5,000 towards costs to the complainant. This order is under challenge by the O. Ps. in these two appeals. After hearing the Counsel for the parties, the point that arises for consideration is: whether the District Forum is justified in allowing the complaint of the complainant?

IT is not in dispute that the complainant was got admitted to O. P. 1 Hospital and operated twice by one Dr. Sandheep as per the evidence adduced before the District Forum. It is also not in dispute that the complainant underwent a third operation in Kamala Nursing Home and Orthopaedic Centre. According to the complainant, he has suffered multiple injuries, in the instant case, because of the negligence of the Doctors in O. P. 1 Hospital in performing the operation and leaving loosened screws unattended, the complainant continued to suffer pain as there was formation of pus and infection at the operated area. O. P. 1 Hospital has filed the affidavit of Doctor who actually conducted two surgeries in O. P. 1 Hospital. According to him, he has conducted the procedure in accordance with medical standards and there is no negligence on his part. One thing is clear that no doctor would assure any cure and at best he can assure proper care. In the instant case, no doubt the complainant approached the Kamala Nursing Home and Orthopaedic Centre. Ultimately it is not known whether after the third operation the complainant got complete relief, since no doctor who conducted the third surgery in Kamala Nursing Home and Orthopaedic Centre has deposed before the District Forum. The complainant has filed the affidavit of one Dr. E. Nagaraj by way of expert evidence before the District Forum. In the affidavit he has described himself as a Doctor working in Bhagwan Mahaveer Jain Hospital, Millers Road, Bangalore-560001. The O. Ps. have filed a letter written by Bhagwan Mahaveer Jain Hospital before this Commission along with a Memo. The letter reads thus: "with reference to your letter No. SMH/ao/24. 06 (e)/2006-07 dated 1st March, 2007, I could confirm that we do not have any Orthopaedic Surgeon by name Dr. E. Nagaraj as Consultant on our panel or as a full-time Consultant in Bhagwan Mahaveer Jain Hospital, Bangalore, from January, 2004. "

The complainant was admitted to O. P. 1 Hospital on 9. 6. 2004 and, according to the letter referred to above, the said Dr. Nagaraj was not working as a Consultant or as full-time Consultant in Bhagwan Mahaveer Jain Hospital from January, 2004. From this it is not known whether the description given by Dr. Nagaraj in his affidavit is correct or the contents of the letter of the Bhagwan Mahaveer Jain Hospital referred to above correct. Therefore, an opportunity has to be given to O. P. 1 Hospital to cross-examine the said Dr. Nagaraj.

ON the basis of the affidavit of Dr. Nagaraj O. P. 1 has delivered interrogatories to the said Dr. Nagaraj. Pursuant to the said interrogatories Dr. Nagaraj has filed his replies to the interrogatories delivered to him. From the replies it is seen that Dr. Nagaraj is only a MBBS Doctor and not Specialist in Orthopaedics. He has also stated that he has got only two years experience. Some of the questions are reproduced below: "9. How long does a fracture, especially a "comminuted fracture" take to unite completely? 10. It is true that in high velocity crashes, in addition to comminuted fracture, destruction and loss of soft issues that normally ensheath the bone may affect the healing processes, increasing the incidence of infection and direct loss of function owing to damaged muscles, tendons, nevers, vessels and skin? 14. Is it true that the progress and incidence of infection depends upon the amount of devitalized soft tissues? 15. Would it be correct to state that obestity and old age are also factors which may lead to infection?"

But in the replies to the inerrogatories Dr. Nagaraj objects to the said question by saying that they do not form part of his affidavit. If Dr. Nagaraj is an expert, he is expected to answer the said questions without objecting to the same on the ground that they do not form part of his affidavit, since the questions referred to above are general in nature. Therefore, it is doubtful whether Dr. Nagaraj is an expert in Orthopaedics or not.

ADMITTEDLY, the said Dr. Nagaraj has not treated the complainant or conducted any surgery. From his affidavit it is seen that he has only based his evidence on the basis of the Discharge Summary and the X-ray issued by Kamala Nursing Home and Orthopaedic Centre. But the District Forum proceeded to hold that the said Dr. Nagaraj is the Doctor who conducted the third surgery and he is of the view that the third operation conducted by him was necessary because of the negligence by the Doctors in O. P. 1 Hospital while conducting the procedure. When the said Dr. Nagaraj himself in his affidavit has stated that he has not conducted any surgery, there was no reason for the District Forum to record the finding that he has conducted the third surgery. Further, after going through the entire order of the District Forum we are of the view that it is not a speaking order with reference to all the relevant evidence adduced before the District Forum, except referring to certain provisions of the Consumer Protection Act and the decisions. Therefore, in our view, the matter requires re-consideration by the District Forum.

Since the complainant has been dragged to this Commission by the O. Ps. by challenging the order of the District Forum, we are of the view that O. P. 1 is to be directed to pay a cost of Rs. 10,000 to the complainant.

IN the result, we pass the following Order: (1) The appeals are allowed. The impugned order in both the appeals is set aside. (2) The matter is remitted back to the District Forum to decide the matter afresh after due notice to both the parties. (3) If O. P. 1 makes an application before the District Forum asking permission to cross-examine Dr. E. Nagaraj, who filed the affidavit by way of expert evidence, the District Forum is directed to allow the said application and afford opportunity to O. P. 1 to cross-examine the said Dr. E. Nagaraj. (4) The District Forum in the impugned order has directed the O. Ps. to pay Rs. 5,000 as cost to the complainant and Rs. 3,000 also as cost to the complainant while passing order on the application for cross-examination. Out of Rs. 5,000 a sum of Rs. 3,000 is to be paid to the complainant and Rs. 2,000 is to be deposited before the District Forum. (5) The District Forum has observed that the O. Ps. have refused to pay the said costs on the ground that they are not in a position to pay the same. This amounts to a clear case of disobedience of the Order of the District Forum. (6) O. P. 1 has deposited a sum of Rs. 1,00,000 in Appeal No. 427/2007 before this Commission. Therefore, if the complainant files a Memo for payment of Rs. 10,000 as ordered above, Office is directed to pay the same to the complainant. Office is also directed to pay Rs. 3,000 to the complainant as cost as ordered by the District Forum, in the event if the complainant files a memo for payment of the said amount. Rs. 2,000 imposed as cost by the District Forum is to be transferred to the District Forum. Office is also directed to refund the balance amount to O. P. 1. (7) O. P. 2 has deposited a sum of Rs. 50,000 in appeal No. 431/2007 before this Commission. If O. P. 2 files a memo for refund of the said amount, office is directed to refund the same. Appeals allowed.