CHIMAI LAKRA vs UNITED INDIA INSURANCE COMPANY LTD

-PETITIONER was the opposite party before the District Forum, where the respondent/complainant, Viswanath had filed a complaint alleging medical negligence on the part of the petitioner Dr. Vasudeva P. Kamath.

VERY briefly the facts leading to filing the complaint were that the complainant''s son having sustained injury in his fore-arm while playing cricket, was taken to the petitioner who after X-ray diagnosed this to be a case of fracture. In these circumstances, his fore-arm was plastered which was removed allegedly as per complainant on 28. 2. 2001 and as per petitioner/opposite party on 19. 2. 2001. It was the case of the complainant that the ''union'' of bones had not taken place and the boy was in severe pain and under those conditions he had been taken to another hospital where after X-ray, Dr. Basavaraj found that, union had not taken place where upon he was operated on 22. 3. 2001 by dynamic compression of both radius and ulna. On 30. 3. 2001, the sutures were removed and POP cast applied on 4. 4. 2001 and discharged. When he again came to hospital on 21. 5. 2001, POP cast was removed and found that the fracture had healed. It was the case of the complainant before the District Forum that the petitioner/opposite party Dr. Kamath did not take proper care at the time of opening of the plaster and no further action was taken even when the union of bones had not taken place and the boy was complaining of pain etc. It is in these circumstances, a complaint was filed before the District Forum, where the complaint was dismissed by the President of the District Forum, but by a separate majority order passed by the two Members, one of whom is an MD, LLB, held the petitioner medically negligent and awarded a sum of Rs. 18,000 to the complainant along with interest @ 10% from the date of default till the date of payment, payable by the petitioner to the respondent. Aggrieved by this order, petitioner filed an appeal before the State Commission, which was dismissed. Hence this revision petition before us. We heard the learned Counsel for the petitioner and perused the material on record.

It is the case of the petitioner that the plaster was removed on 19. 2. 2001, crape bandage applied and physiotherapy was also advised and the complainant was directed to come on 28. 2. 2001, but the complainant never came after 19. 2. 2001. He also relies on the reference card of the Shilpa Diagnostic Pvt. Ltd. at Dev Nagere, in which it is stated, "no difficulty in doing fore-arm movement". It is also his case that even as per the evidence of Dr. G. C. Basavaraj, the fracture in any case would have healed within two - three months. His clinical examination had showed proper healing and whatever was expected from a Doctor was done. In these circumstances, the petitioner cannot be held medically negligent.

AFTER hearing the learned Counsel for the petitioner and going through the evidence on record, we find that we are not satisfied as to when the plaster applied on the fore-arm was removed, whether it was on 19. 2. 2001 or 28. 2. 2001. In the complaint, the complainant specifically stated that it was removed on 28. 2. 2001 which was repudiated by the petitioner in his written version filed before the District Forum, but this factum was reiterated by the complainant in his affidavit and he withstood the cross-examination on the point that POP cast was removed on 28. 2. 2001. What is produced before us (at page 16-17 of the paper book) is a hospital-record and not a discharge summary. This record was never supplied to the complainant and would have been produced for the first time before the District Forum. De hors the above controversy, what is expected from a Doctor after removing the POP cast on 19. 2. 2001 was to satisfy himself that the bones have joined. There is no material on record to state that any X-ray after removal of POP cast was done or any advice to this effect was given to the complainant. The expert opinion of Dr. Basavaraj is categorical on this point that even though most of such fractures unite conservatively without operation, but it happens only in about 70% cases, but in other cases surgery is required. The petitioner never made an attempt to satisfy himself after removing the POP cast whether the bones are joined or not? This is a clear case of medical negligence. Only if he had taken X-ray, that would have revealed the status of the bones whether they have joined or not? That would have been the best piece of evidence for and against the parties in this case.

WE have also seen the hospital record of the petitioner and we do not see that any clinical examination was done after removal of POP cast and it is also not in dispute that after about four weeks when the complainant went before the second Doctor, i. e. , Dr. Basavaraj, he found ''swelling, tenderness and abnormal mobility''. X-rays taken by him which were brought on record and exhibited, clearly showed that bones have not joined and he had to do the surgery for joining the bones. Before the District Forum, a feeble attempt is also made by the petitioner that the bones had joined as a result of POP cast applied by the petitioner, but perhaps on account of another fall or any such mishap, the boy developed this non-joining of bone again. District Forum rightly dismissed this contention that no such plea was taken in the written version. Only at the time of cross-examination this plea was raised. In view of this it was rightly rejected by the District Forum. Taking note of the cross-examination of the petitioner and Dr. Basavaraj, a point is also sought to be made by the petitioner that surgery was not required as the bones would have joined in course of time. This contention is strongly rebutted by Dr. Basavaraj - who is also an Orthopaedic Surgeon, in his evidence. No expert opinion or medical literature has been brought by the petitioner in support of his plea that surgery was not required. What was required was the joining of bones of the young boy. In the absence of anything to the contrary supported by any expert evidence, we see no merit in this contention either. In view of the fact that at the time of removal of POP cast, petitioner did not take X-ray to satisfy him that the bones have joined or not, and not recording if any clinical examination was done to satisfy him that this has happened, is a clear case of medical negligence for which the complainant had to go to other hospital where he was properly treated and bones were joined. The negligence on the part of the petitioner, resulted in prolonging-both physical and mental agony to the complainant and his son. We find that the awarded amount is a pittance in these given circumstances.

IN the aforementioned circumstances, we find that there is no merit in this revision petition, hence dismissed.

NO order as to costs. Revision Petition dismissed.