MASTER ASHOK KUMAR vs AGADI NURSING HOME

IN this complaint, the complainant a minor boy about 8 to 9 years old, filed through his father- C.W. 2, has sought compensation in a sum of Rs. 3,50,000/- from the Opposite Parties; Opposite Party No. 1 Nursing Home and Opposite Party No. 2 an Orthopaedic Surgeon, who had treated fractured left hand elbow of the boy alleging that both the Opposite Parties had committed negligence in diagnosing and treating the patient.

THE boy, Ashok Kumar sustained a fracture of his left hand elbow on 16.4.90 at Madikeri. On the same day he was treated at Madikeri Hospital and the complainant came to Bangalore on the next day on 17.4.90 along with his father and consulted Opposite Party No. 2 in the Nursing Home of Opposite Party No. 1. Opposite Party No. 2 took the X-ray photo of the left hand elbow, as per Ex. C 1, and found it fractured and so advised to undergo a setting of the said fractured left hand elbow. THE complainant agreed for the same and on the same day Opposite Party No. 2 under general anasthesia reduced the fracture and set the fracture. Subsequently, after reducing the fracture, took another X-ray, as per Ex. C 2; it revealed that the left elbow fracture was well set and then he put the left elbow in plaster and provided a sling. It is the further case of the complainant that this treatment rendered by the Opposite Party No. 1 did not relieve from the elbow pain and he did not find any improvement.

The complainant, after a month, visited the Opposite Party, the Opposite Party advised him to undergo a second setting. The complainant did not agree for the same and he consulted another Orthopaedic Surgeon, C.W 1 on 4.7.90 who on examining the boy advised Physiotherapy and told him that the diagnosis made earlier by Opposite Party No. 2 was wrong and a wrong treatment was given and so the complainant had not been able to get improvement in the pain and suffering.

THE complainant further averred that the boy''s suffering with a pain which still subsists and had impaired the life activity of the boy. The complainant, on the basis of these averments sought compensation from the Opposite Parties, as referred above.

BOTH the Opposite Parties filed their version. The Opposite Parties averred that the allegation of wrong diagnose and wrong treatment given by Opposite Party No. 2, as averred by the complainant, was not correct. Opposite Party No. 2, an experienced Orthopaedic Surgeon, who had done M.Sc. and F.R.C.S., and had worked in various capacities, as Prof. of Orthopaedic in Karnataka Medical Service, Head of the Department of Orth. in Victoria Hospital, Post Graduate Examiner in Orth. and Dean of JSS Medical College, Mysore, has stated that on taking the X-ray photos, Ex. C 1, he found the fracture of the left elbow and so the fracture was set and subsequently X-ray was taken, as per Ex. C 2, which revealed that it was properly set and then plaster was given and a sling was provided. The Opposite Party further averred that on the next date he was again examined and found that the complainant had no complications, advised him to see him after 15 days. He saw the complainant again on 4.5.90, found weakness of the left hand finger movements which was due to the sling; so graded muscle functions and advised him to have exercise of finger movement. The Opposite Party again and finally saw the complainant on 15.5.90 and did not find any complication. It is the case of the Opposite Parties that thereafter, that is, after 15.5.90, the boy did not come to the Opposite Parties and when he saw the boy on 15.5.90, the left elbow was still in plaster.

THE Opposite Parties further averred that the diagnosis made and the treatment given was correct and proper.

THE Opposite Parties, on the basis of these averments, sought the complaint to be dismissed. During enquiry the complainant examined C.W. 1-an Orthopaedic Surgeon and the father of the boy through whom this complaint. came to be filed, as C.W. 2, and got Ext. C-l to C-7 marked in evidence. The Opposite Parties examined Opposite Party No. 2 as R.W.1.

The evidence of the parties came to be concluded even in the year 1991, but subsequent thereto when the matter was being posted from time to time for hearing the arguments, the complaint came to be dismissed for the absence of the complainant and the learned Counsel for the complainant for non-prosecution. Subsequently it came to be restored. In the meanwhile this complaint was sent to the District Forum for adjudication on the ground of jurisdiction. After the decision of the National Commission, the records were secured from the District Forum and thereafter it was being posted for hearing arguments of the parties. The complainant and the learned Counsel for the complainant remained absent on 28.11.94 and again on 6.12.94. As the evidence in the matter was completed long back and it was posted only for hearing the arguments of the parties, so when the complainant and the learned Counsel for the complainant consistently remained absent, we heard the learned Counsel for the Opposite Parties and we are recording finding on consideration of the material on record.

HAVING regard to the pleadings of the parties, the only point that arises for our consideration is-Whether Opposite Party No. 2 had made a wrong diagnosis and had given a wrong treatment for the fracture of the left elbow sustained by the minor boy, Ashok Kumar. The complainant-the father of the minor boy, has averred in the complaint that the diagnosis made and the treatment given by Opposite Party No. 2 for the fractured left elbow of the minor boy was wrong and the pain in the hand still persisted. C.W. 2, has in his evidence, stated that there was deformity in the left elbow of the boy. He has specifically stated thus: "Due to the deformity in the left elbow my son is not able to move his hand upwards, lift weights with his lefts hand, his friends have been teasing him by saying that he has a bent arm and due to that my son is feeling bad and he is weeping. My son was taking part in sports prior to the accident. He cannot use his left hand for playing now and he cannot take part in sports as freely as he used to do earlier."

THE complainant had not averred in the complaint that there was any deformity in the left elbow of his son. THE complainant, when he entered the witness box, this is the improvement made by him. It is material on record that Opposite Party No. 2, examined the complainant and reduced the fracture on 17.4.90, and again he examined him on 4.5.90 and finally on 15.5.90, and he has recorded his diagnosis and the treatment given to the minor boy in the out-patient case-sheet recorded by him as per Ex. C 7. This shows that on taking X-ray, the left elbow was found fractured, it was reduced and plaster was put. Therefore on 4.5.90, he graded the muscle function of the finger movements and on 15.5.90 he had examined the complainant but did not find any deformity. It is the case of the complainant that he consulted C.W. 1 on 4.7.90. C.W. 1, has, as regard to the diagnosis made by R.W. 1 and treatment given to the boy, stated thus: "Ex. C-l, is X-ray photo of the broken left elbow of the boy taken in Agadi Nursing Home on 17.4.90. Ex. C-2 is the X-ray photograph of the left elbow of the boy taken after his left elbow was put in plaster after correction. Ex. C-2 shows that the fracture had been set properly." This evidence of C.W. 1, the witness of the complainant himself, would go to show that the boy had fracture of left elbow and it was properly set and corrected by Opposite Party No. 2.

IT is material on record that after 15.5.90, the boy did not see Opposite Party No. 2 at all. Thereafter, he went to C.W. 1 only on 4.7.90. There is absolutely no material to show that as to how long the boy maintained the plaster on the fractured left elbow and as to when and by whom the said plaster was got removed. C.W.1 has stated that the negligence of the patient himself in getting the plaster loosened may be one of the reasons for the deformity. C.W.1 has further stated that the alleged deformity was only a cosmetical and it would not cause functional disability. C.W. 1 has further stated thus: "I cannot definitely say the reason for the deformity suffered by the boy."

THESE circumstances would clearly go to show that the deformity, if any, in the left elbow of the minor boy, was due to the negligence of the minor boy in tampering with the plaster and giving movement to the fractured elbow without waiting for the full period for the removal of the plaster. Having regard to these facts and in the circumstances of the case, we are of the opinion that the complainant failed to prove that there was any negligence on the part of the Opposite Parties either in their diagnosis or in the treatment given by them to the minor boy to his fractured left elbow.

Having regard to these facts and in the circumstances of the case, we find absolutely no merit in the complaint. ORDER In the result, therefore, this Complaint fails and it is dismissed. The parties are directed to bear and pay their own costs in this proceeding. Complaint dismissed.