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  • KU.LAXMI
    v. DR. S.K. GOVIL


    II (2001) CPJ 325

     

    MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL
    COMMISSION, BHOPAL


      

    Consumer Protection Act, 1986 – Section 14(1)(D) – Medical
    Negligence – Failure of Advise and Communication -
    Compensation – Hand fractured – Plastered – Union of the two
    pieces of bones not according to proper alignment – Opposite
    parties aware of the fact that X-ray essentially required
    after two to three days – Failed to ensure that instructions
    given in writing and patient’s relatives have been made to
    understand the importance of repeated X-ray – Liable to pay
    compensation.

      

    Held : In the instant case there may not have been
    deliberate or willful negligence but there has been a
    failure of advise for reported X-ray two to three days
    latter and we have no reason to feel that any child’s
    parent would not follow the advise of repeated X-ray. Of
    course we feel that the opposite party also had no interest
    in not advising X-ray and they would not have lost or gained
    anything by not advising for the same. But we feel that as
    stated by Dr. Jagdish Singh, the opposite party failed to
    ensure that the instructions are given in writing and
    patient’s relatives have been made to understand the
    importance of repeated X-ray.     
    (Para 7)

     

    Result : Complaint allowed.

     

    ORDER

     

    Mr. N.K. Vaidya, Member – This is an original complaint
    filed by a female child aged 1&1/2 years through her
    guardian, wherein it has been stated that, having suffered
    with a fracture in her left hand, she was taken to the
    Nursing Home of opposite party No. 1 where, first, X-ray of
    the hand was taken and thereafter her hand was plastered
    upon and she was discharged from the Nursing Home with
    directions to come to the Nursing Home of opposite party No.
    3 on 30th June, 1996 for re-setting the plaster. That on
    30.6.1996 Dr. Bansal and Dr. Shrivastava opposite party Nos.
    2 and 3 re-set the plaster and advised the complainant’s
    guardian to come for a check up after 21 days.

       

    2. That when the child was taken to the Nursing Home
    of non-applicant No.2, after 29 days, for cutting the
    plaster it was found that the union of the two pieces of
    bones was not according to proper alignment and was bent
    slightly and the complainant was directed to get X-ray of
    the joint taken again and for re-setting the joint
    thereafter which would cost about Rs. 25,000/-. The
    complainant has alleged that because of negligence by the
    opposite parties, the left elbow joint of the complainant
    child Ku. Laxmi was mal-united. The complainant furnished a
    certificate Ex. C-9 dated 6.2.1999 of one Dr. S.K. Arora,
    Orthopaedic Surgeon wherein he has stated that the elbow
    joint is mal-united and that the child is suffering with
    such a disability which cannot be corrected without an
    operation and the expenses of this operation will be Rs.
    25,000/-.

       

    3. In reply, the opposite parties have stated that
    when the child was brought to the hospital of non-applicant
    No. 1, i.e. Dr. S.K. Govil, the family members of the
    complainant were advised that this fracture was of unstable
    nature and required fixation by an operation for which the
    complainant did not agree. On his insistance, after X-ray
    the fracture was set under anaesthesia and the elbow was
    plastered. That when second X-ray was taken it was found
    that the bone was not properly set and the complainant was
    advised that further setting required use of Image
    Intensifier Machine which was not available at the Nursing
    Home of non-applicant No. 1 and was available at the Nursing
    Home of the non-applicant No.3. The bone was again set under
    Image Intensifier. Machine and the complainant was fully
    satisfied after having seen himself the setting of the bone
    on the machine. Still the family members were advised that
    since the fracture was of unstable nature, though bone was
    set, still required great after care and the bone could
    again be dis-located and, therefore, the family members were
    advised to come to the Nursing Home again after two to three
    days for another check up and X-ray. But the complainant
    came only after 21 days and when the plaster was removed and
    it was found that the elbow was slightly bent which was on
    account of the carelessness and negligence of the family
    members only who did not follow the advise of the
    non-applicant for a check up after two to three days. The
    non-applicants thus argued that they are not responsible for
    any kind of negligence or deficiency on their part and they
    took necessary precautionary steps and set the bone under
    Image Intensifier Monitor with full knowledge and
    satisfaction of the complainant. The opposite party Dr.
    Bansal has stated in his affidavit dated 17.5.1999 that the
    resultant deformity is a usual affair in such type of cases
    as has been stated in medical literature quoted by him as
    under :

        

    “(As per the Orthopaedic Clinics of North America Page
    No. 295. The true structure of the deformity however does
    not become apparent until the stiffness from the injury has
    subsided and the child has achieved full extension. Thus the
    gradual appearance of the deformity is simply the result of
    gradual recognition that the deformity exists. It further
    quotes on the same page that this deformity is primarily
    cosmetic and mostly the functional effects are minimal and
    the major reason patients seek surgical correction is to
    change the appearance of elbow).”

       

    4. In the book quoted by Dr. Bansal himself in
    subsequent paragraph it is further mentioned that this
    concept is important and needs to be emphasized to the
    patients, pre-operatively especially because the rate of
    complications after surgery arises from 20 to 33 percent. In
    the book “Fractures and Joints Injury” by Watson
    John’s, it is clearly mentioned that X-ray must be
    repeated after a few days. In Champbell’s Operative
    Orthopaedics photocopy filed by complainant on page 679, in
    para on Fracture of distal humerus in children, it is
    mentioned that cubitus baruo deformalities following
    supracondylar fractures, more frequently result from
    mal-union. On further page No. 680 it is mentioned that
    “over half of the fractures of the elbow in children
    were supracondylar”. They are most common in children
    between the age of five to eight. The book further mentions
    that “severe late complications may result from
    minimally displaced fractures. Non-union and mal-unions with
    impairment in growth, deformity, loss of motion, late
    traumatic arthritis, and tardy ulnar nerve palsy are
    frequent complications”.

       

    5. As has been stated by the opposite parties in
    their report, the opposite parties were aware of this fact
    that the fracture was of unstable nature though bone was set
    and, therefore, the family members were advised by them to
    come to the Nursing Home again after two to three days for
    check up and X-ray was essentially required after two to
    three days. Still there is no evidence on record to show
    that the family members of the opposite parties were so
    advised. The only remark in the discharge slip record is
    “review SOS and after three weeks”. This does not
    mean that the patient’s relatives were advised for X-ray
    after two or three days. In the book, Medical Negligence and
    Compensation written by Dr. Jagdish Singh Vishwa Bhushan,
    Associate Professor, Second Edition, 1999 on the Chapter on
    Categories of Negligence. “Failure of advise and
    communication” has been considered as a negligence and
    on page 74 it is written as under :

     

    “Failure to give proper instructions : it is obligatory
    to give warning about risk and it must be ensured that
    instructions are given in comprehensive terms making sure
    that the patient understands both the instructions and the
    importance of strictly adhering to them.”

     

    6. It is further emphasized on page 185 that
    pathological tests and radiological tests as specified must
    be advised in writing. In the same Chapter it is reported as
    under :

     

    “Give instructions to the patient in comprehensible
    terms, making sure that the patient understands both the
    instructions and the importance of strictly adhering to
    them”.

      

    7. In the instant case there may not have been
    deliberate or willful negligence but there has been a
    failure of advise for reported X-ray two to three days
    latter and we have no reason to feel that any child’s
    parent would not follow the advise of repeated X-ray. Of
    course we feel that the opposite party also had no interest
    in not advising X-ray and they would not have lost or gained
    anything by not advising for the same. But we feel that as
    stated by Dr. Jagdish Singh, the opposite party failed to
    ensure that the instructions are given in writing and
    patient’s relatives have been made to understand the
    importance of repeated X-ray.

     

    8. There are two alternatives before us either we may
    direct the opposite party to re-set the bone of the child or
    to pay some compensation so that the child may get treatment
    elsewhere at a place where he lives.

     

    9. We, therefore, feel that an award of compensation
    of Rs. 5,000/- to be paid by the opposite parties would meet
    the ends of justice and, therefore, we order accordingly.
    The opposite party shall pay this amount within a period of
    two months from the date of receipt of the certified copy of
    the order failing which this amount will carry 15 percent
    interest till payment.

     

    Complaint allowed.

             


         


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  • KU.LAXMI v. DR. S.K. GOVIL
    II (2001) CPJ 325
     
    MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL
      
    Consumer Protection Act, 1986 – Section 14(1)(D) – Medical Negligence – Failure of Advise and Communication - Compensation – Hand fractured – Plastered – Union of the two pieces of bones not according to proper alignment – Opposite parties aware of the fact that X-ray essentially required after two to three days – Failed to ensure that instructions given in writing and patient’s relatives have been made to understand the importance of repeated X-ray – Liable to pay compensation.
      
    Held : In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any child’s parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patient’s relatives have been made to understand the importance of repeated X-ray.      (Para 7)
     
    Result : Complaint allowed.
     
    ORDER
     
    Mr. N.K. Vaidya, Member – This is an original complaint filed by a female child aged 1&1/2 years through her guardian, wherein it has been stated that, having suffered with a fracture in her left hand, she was taken to the Nursing Home of opposite party No. 1 where, first, X-ray of the hand was taken and thereafter her hand was plastered upon and she was discharged from the Nursing Home with directions to come to the Nursing Home of opposite party No. 3 on 30th June, 1996 for re-setting the plaster. That on 30.6.1996 Dr. Bansal and Dr. Shrivastava opposite party Nos. 2 and 3 re-set the plaster and advised the complainant’s guardian to come for a check up after 21 days.
       
    2. That when the child was taken to the Nursing Home of non-applicant No.2, after 29 days, for cutting the plaster it was found that the union of the two pieces of bones was not according to proper alignment and was bent slightly and the complainant was directed to get X-ray of the joint taken again and for re-setting the joint thereafter which would cost about Rs. 25,000/-. The complainant has alleged that because of negligence by the opposite parties, the left elbow joint of the complainant child Ku. Laxmi was mal-united. The complainant furnished a certificate Ex. C-9 dated 6.2.1999 of one Dr. S.K. Arora, Orthopaedic Surgeon wherein he has stated that the elbow joint is mal-united and that the child is suffering with such a disability which cannot be corrected without an operation and the expenses of this operation will be Rs. 25,000/-.
       
    3. In reply, the opposite parties have stated that when the child was brought to the hospital of non-applicant No. 1, i.e. Dr. S.K. Govil, the family members of the complainant were advised that this fracture was of unstable nature and required fixation by an operation for which the complainant did not agree. On his insistance, after X-ray the fracture was set under anaesthesia and the elbow was plastered. That when second X-ray was taken it was found that the bone was not properly set and the complainant was advised that further setting required use of Image Intensifier Machine which was not available at the Nursing Home of non-applicant No. 1 and was available at the Nursing Home of the non-applicant No.3. The bone was again set under Image Intensifier. Machine and the complainant was fully satisfied after having seen himself the setting of the bone on the machine. Still the family members were advised that since the fracture was of unstable nature, though bone was set, still required great after care and the bone could again be dis-located and, therefore, the family members were advised to come to the Nursing Home again after two to three days for another check up and X-ray. But the complainant came only after 21 days and when the plaster was removed and it was found that the elbow was slightly bent which was on account of the carelessness and negligence of the family members only who did not follow the advise of the non-applicant for a check up after two to three days. The non-applicants thus argued that they are not responsible for any kind of negligence or deficiency on their part and they took necessary precautionary steps and set the bone under Image Intensifier Monitor with full knowledge and satisfaction of the complainant. The opposite party Dr. Bansal has stated in his affidavit dated 17.5.1999 that the resultant deformity is a usual affair in such type of cases as has been stated in medical literature quoted by him as under :
        
    “(As per the Orthopaedic Clinics of North America Page No. 295. The true structure of the deformity however does not become apparent until the stiffness from the injury has subsided and the child has achieved full extension. Thus the gradual appearance of the deformity is simply the result of gradual recognition that the deformity exists. It further quotes on the same page that this deformity is primarily cosmetic and mostly the functional effects are minimal and the major reason patients seek surgical correction is to change the appearance of elbow).”
       
    4. In the book quoted by Dr. Bansal himself in subsequent paragraph it is further mentioned that this concept is important and needs to be emphasized to the patients, pre-operatively especially because the rate of complications after surgery arises from 20 to 33 percent. In the book “Fractures and Joints Injury” by Watson John’s, it is clearly mentioned that X-ray must be repeated after a few days. In Champbell’s Operative Orthopaedics photocopy filed by complainant on page 679, in para on Fracture of distal humerus in children, it is mentioned that cubitus baruo deformalities following supracondylar fractures, more frequently result from mal-union. On further page No. 680 it is mentioned that “over half of the fractures of the elbow in children were supracondylar”. They are most common in children between the age of five to eight. The book further mentions that “severe late complications may result from minimally displaced fractures. Non-union and mal-unions with impairment in growth, deformity, loss of motion, late traumatic arthritis, and tardy ulnar nerve palsy are frequent complications”.
       
    5. As has been stated by the opposite parties in their report, the opposite parties were aware of this fact that the fracture was of unstable nature though bone was set and, therefore, the family members were advised by them to come to the Nursing Home again after two to three days for check up and X-ray was essentially required after two to three days. Still there is no evidence on record to show that the family members of the opposite parties were so advised. The only remark in the discharge slip record is “review SOS and after three weeks”. This does not mean that the patient’s relatives were advised for X-ray after two or three days. In the book, Medical Negligence and Compensation written by Dr. Jagdish Singh Vishwa Bhushan, Associate Professor, Second Edition, 1999 on the Chapter on Categories of Negligence. “Failure of advise and communication” has been considered as a negligence and on page 74 it is written as under :
     
    “Failure to give proper instructions : it is obligatory to give warning about risk and it must be ensured that instructions are given in comprehensive terms making sure that the patient understands both the instructions and the importance of strictly adhering to them.”
     
    6. It is further emphasized on page 185 that pathological tests and radiological tests as specified must be advised in writing. In the same Chapter it is reported as under :
     
    “Give instructions to the patient in comprehensible terms, making sure that the patient understands both the instructions and the importance of strictly adhering to them”.
      
    7. In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any child’s parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patient’s relatives have been made to understand the importance of repeated X-ray.
     
    8. There are two alternatives before us either we may direct the opposite party to re-set the bone of the child or to pay some compensation so that the child may get treatment elsewhere at a place where he lives.
     
    9. We, therefore, feel that an award of compensation of Rs. 5,000/- to be paid by the opposite parties would meet the ends of justice and, therefore, we order accordingly. The opposite party shall pay this amount within a period of two months from the date of receipt of the certified copy of the order failing which this amount will carry 15 percent interest till payment.
     
    Complaint allowed.
             

         

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