State Consumer Disputes Redressal Commission
Dr.K.Newton, M.B.B.S., D.Ortho ... vs V. Govindaraj, Tanjore District . on 1 September, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present
Date of appeal filed: 26.09.2017
THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
F.A.No.200/2018
FRIDAY, THE 01st DAY OF SEPTEMBER 2023.
Dr.K.Newton, M.B.B.S.,D.Ortho,
Orthopaedic Surgeon,
Sivam Nursing Home,
49, Pillayar Koil Street,
Pattukottai Town. Appellant/Opposite Party
-Vs-
V.Govindaraj,
S/o Veerasami,
No.42, Rajali Veedulti Village,
Orattanadu Taluk,
Tanjore District. Respondent/Complainant
Counsel for Appellant/Opposite Party : M/s.Ramanlaal, Advocate.
Counsel for Respondent/Complainant : Mr.K.Sekar, Advocate.
Aggrieved by the award passed by the District Consumer Disputes Redressal
Commission, Thanjavur made in C.C.No.04/2014, dated 08.06.2017 the opposite
party preferred this appeal. This appeal coming before me for final hearing on
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11.08.2023 and upon perusing the material records, this Commission made the
following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The Facts:
The complainant's daughter one Krithika sustained a dislocation in her left elbow on 18.11.2010. Immediately, she was brought to the opposite party's Clinic and the opposite party treated her. The complainant again went to clinic on 22.11.2010, 29.11.2011 and took periodical treatment for 3 years. Inspite of such treatment the complainant's daughter left hand become non functional and the opposite party gave evasive promises. Suspecting the treatment the complainant consulted with Dr.Joseph, Thanjavur, and Dr.V.J.Senthil, G.V.N. Hospital, Trichy and Dr.Mohan Kumar Sri.Ramachandra Medical College, Chennai. All the Doctors were opined that it is "an old fracture lateral condyle with non-union with cubitus valgus deformity" and informed the complainant that it become incurable. The above defect and deformity was due to negligent treatment given by the opposite party/doctor taking advantage of illiteracy of the complainant. The opposite party misguided the complainant without giving proper treatment and committed negligence. Hence, this complaint is filed claiming Rs.20,00,000/- towards compensation for medical negligence.
2. The opposite party in their written version has stated that the complaint is hopelessly time barred and the complainant took treatment with the opposite party on 18.11.2010. And after the year 2010, the complainant, as per his case, got the 3 opinion from Dr.Joseph on 08.06.2011 but the case has been filed in the year 2014 which is time barred one. The opposite party treated the daughter of the complainant with great care and as per the medical text. The complications of lateral condyle with non union due to valgus deformity is not due to any medical negligence or treatment given by the opposite party and it is a deformity which is incurable. So, there is no negligence on his part and requested to dismiss the complaint.
3. The District Commission received proof affidavit and the opposite party as well as cross examine court witness Dr.A. Bharathi and marked Exhibits A1 to A12 and CW1, CW2. Finally, award of Rs.3,00,000/- as compensation to the complainant.
4. Aggrieved with the above order, this appeal has been preferred by the opposite party on the following:
Grounds: That, the order of the District Commission is erroneous and not sustainable in law. The District Commission failed to see that the complaint was hopelessly barred by limitation. The complainant even as per his case approached for treatment only in the year 2010 and the complaint is filed in the year 2014. Further there is no specific allegation against the doctor with regard to any specific act of negligence committed by the opposite party/doctor. The District Commission failed to note that the treatment was as per the established medical Rules and medical text procedures. Hence, he prayed to allow the appeal and to set aside the District Commission order.
5. In this case the appellant side written arguments is treated as oral arguments and oral arguments of respondent/complainant was heard. 4
6. It is the case of the complainant that his daughter Krithika suffered dislocation in the left hand elbow and she was treated by the opposite party. Since the opposite party committed medical negligence in treating his daughter suffered "
an old fracture lateral condyle with non-union with cubitus valgus deformity" which is incurable in nature. On the other hand, the opposite party/doctor pleaded that there is no allegations of specific negligent act and treatment was given as per the medical procedures and text books and it is his further contention that the complaint is barred by limitation.
7. Now the points for consideration are:
1. Whether the complaint is barred by limitation?
2. Whether the opposite party committed any medical negligence?
3. Whether the appeal is to be allowed or not?
Limitation:
8. It is the case of the complainant that his daughter suffered dislocation on 18.11.2010 and he brought his daughter to the opposite party's clinic immediately,on that date, and again on 22.11.2010 and 29.11.2011 for further treatment. Moreover, it is his specific case almost three years he regularly visited the opposite party clinic and the opposite party assured and giving medicines to his daughter. Inspite of such assurance he suspect and took advice from Dr.Joseph on 08.06.2013 (wrongly mentioned 08.06.2011 in the written version). The above doctor's prescription is marked as Ex.A2 in which the date has been clearly mentioned as 08.06.2013.
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9. Moreover, the complainant again contacted the opposite party and the opposite party convinced the complainant and gave a letter of reference to one Orthopedic Surgeon, Dr.Mohan Kumar, Sri Ramachandra Medical College at Chennai. The above referral letter was marked as Ex.A4 and it is dated 26.06.2013. Only after such consultation the complainant alleged that he came to know about the medical negligence committed by the opposite party and field this complaint. So as per his case he visited and consulted the opposite party/doctor in the year 2013 has been proved. The opposite party also admitted giving a letter on humanitarian ground to the complainant. So the case of the complainant that he consulted and get treatment for his daughter till 2013 is proved and the complaint filed in the year 2014 is well within the period of limitation. So the complaint is not barred by limitation and the point no.1 Is answered accordingly.
Medical Negligence:
10. It is an admitted fact that the complainant's daughter suffered dislocation and she was treated by the opposite party on 18.11.2010. As per the prescription of the opposite party as well as in his reply he did not submit the nature of injury, the period of treatment given by him. Even no medical records with regard to the patient produced by him. Of course, the complainant also failed to disclose how his daughter suffered the dislocation whether it is by birth or by accident?. However only in the course of evidence it has been revealed that due to accident the above injury was caused. The PW1 in his cross examination admitted so. Moreover, by cross examining the above witness, the opposite party also admitted that it was an accidental injury. The opposite party in his evidence admitted he advised and treated 6 the injury with cast and he also admitted that because of the accident left lateral condyle was fractured. He further admitted due to applying the cast, the hand had stiffness for which he has given Physiotherapy in his clinic. How many days such kind of Physiotherapy was given is not informed either in the written version or in the evidence. So 'Prima Facie' this Commission found that the opposite party neither disclose his diagnose with regard to the complaint's child Krithika and the opposite party did not inform this Commission the treatment particulars given to such small child. Particularly, there is no pleading and evidence placed by the opposite party that he suggested casting, the stage of improvement after casting and his arrangement of physiotherapy to the child in his clinic.
11. Further, there is no pleading that at the time of accident and after removal of cast he advised the complainant to take x-ray of the child fracture. Without any x-rays he applied cast. And without ascertaining through x-ray after removal of casting whether the bones were united in a perfect manner or not he suggested physiotherapy. So the doctor did not follow the medical procedures thereby acted negligently. Hence, he has committed medical negligence.
12. As a doctor who treated the fracture it is his paramount duty to inform the patient and her father about the status of bone joined whether it has been properly joined or improperly joined?. Without any such assessment he gave treatment and physiotherapy which are admittedly not cured the injury. In all the reports marked as Exhibits A2 to A5 symbol of fracture # has been mentioned, it shows that it was an old fracture and Mal union of bones. The Court witness CW1 Dr.A. Bharathi in her evidence admitted that due to bone fracture the bone was improperly joined. The 7 doctor further specifically admitted that cubitus valgus may be aused due to improper casting at the time of treatment and the above deformity is due to bone fracture.
13. But the opposite party all along in his written version impliedly stated that the above deformity was a natural deformity by birth and it is incurable. The doctor not treated the patient appropriately by advising too take x-ray or scan. If such x ray or scan was taken and verified, he can very well detect the non union or Mal union of the bone just after removal of the cast. But it is not the case of the doctor that he had advised to take x-rays and verified the x-ray and at the time of removal of casting her bones joined perfectly. In this connection, a reference may be made to a decision of the Apex Court in the case of Indian Medical Association .Vs. V.P. Shantha & ors. reported in AIR 1996 SC 550. There the question had come up before the Apex Court with regard to the provisions of the Consumer Protection Act, 1986 vis-`-vis the medical profession. "The Apex Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients" Since, the opposite party/doctor did not take the expected care in treating the patient then it amounts to medical negligence on his part and the point no.2 is answered accordingly.
14. Point no.3 In a research paper it has been mentioned that this type of injury is the second most common pediatric elbow fracture. Such fractures constitute 12-20% of all upper extremity fractures in children. The most common age group is between 4-10 years of age, with the peak incidence at six years. 8 Interestingly, left-side injury is more common, with 67.4% of such injuries occurring in males. Non-union, and subsequently, cubitus valgus deformity are some of the unacceptable complications if the lateral condyle (LHC) fracture has not been timely and appropriately treated.
To sum up Admittedly the child injured accidentally at the age of 2 years She was treated for the injury only by the opposite party doctor. No treatment particulars produced or pleaded by the doctor such as nature of injury at his first sight, the period of casting, the improvement after removal of cast, the period of physiotherapy, etc The deformity diagnosed now is not natural or by birth All the opinions marked in this case proved by the symbol # that the malunion is due to injury If proper treatment was given a 2 years old year's child injury can be easily cured The above factors lead to irresistible conclusion that the opposite party doctor committed medical negligence.
So the District Commission clearly found that the opposite party/doctor was negligent and award of Rs.3,00,000/- to the complainant. This Commission also feels appropriate and there is no necessity to interfere with its finding and the order of the District Commission is confirmed. Hence, the appeal is dismissed with cost of Rs.5000/- to the complainant and the point no.3 is answered accordingly. 9
15. In the result,
1. The appeal is dismissed.
2. The order passed by the District Commission, Thanjavur, made in C.C.No.04/2014, dated 08.06.2017 is hereby confirmed.
3. The opposite party is directed to pay further cost of Rs.5000/- to the complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 01st day of September 2023.
Sd/-xxxxxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
10Corrected 11