THANE DISTRICT FORUM ORDERS 2 DOCTORS TO PAY 10 LACS JOINTLY AND SEVERALLY TO A COMPLAINANT.
Thane district consumer forum awarded a compensation of Rs.10 Lacs to a Complainant who suffered disability of 45% because of Volkmann’s Ischemic Contracture. Joint and Several liabilities to pay the amount were imposed on two doctors.
The fact of the case in brief is that, the Complainant had fractured his forearm. One of the doctors diagnosed it as a green stick fracture and put a plaster cast to immobilize the forearm. The father of the Complainant took discharge of the Complainant against medical advice after one day of hospitalization. Three days later because of pain and swelling the father of the Complainant brought back the child to the doctor who diagnosed the fracture had developed into a “Compartment Syndrome” and immediately rushed the Complainant to another hospital where the Complainant underwent operation for “Compartment Syndrome”.
Strangely, the district forum held the doctors, one who treated for fracture in the first instance and the other doctor who operated for “Compartment Syndrome” as jointly and severally liable to pay the compensation of Rs. 10 lacs for “Deficiency of service”. The District Forum lost sight of the fact that neither of the doctors has ever treated the Complainant jointly.
The District Forum concluded Deficiency of service on the ground that the Complainant did not recover. The district forum did not record any finding of negligence, fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of treatment by either of the two doctors. The District forum relied upon an “Electromyography & Nerve Conduction Study report” and drew an inference that it is an expert’s opinion of deficiency of Service.
The author of the “Electromyography & Nerve Conduction Study report” did not file any affidavit of evidence, yet the District Forum relied upon the same, though as per S.13 (2) (b) (i) of the Consumer protection act it could not have been treated as an evidence.
The prognosis of Fracture is Compartment syndrome, which if not immediately operated, would result in Volkmann’s Ischemic Contracture. Compartment Syndrome if not treated would eventually develop into gangrene necessitating amputation or may lead to septicemia and cause death.
It is pertinent to note that in this case the Complainant was operated upon for Compartment Syndrome after 4 days of the fracture, by which time Volkmann’s Ischemic Contracture had already set in. Thus, the disability of Volkmann’s Ischemic Contracture suffered by the Complainant is one, which had happened, in the ordinary course of delayed admission for operation for which the doctor could not be responsible. In the circumstances, principles of res ipsa locquitor also would have no application against the doctor.
In this case, a serious injustice has taken place against the doctor as apparently failure of the complainant to recover inspite of treatment determined the award of compensation by the Forum. The forum failed to note that Volkmann’s Ischemic Contracture is irreversible after it had set in.
The Doctor who had successfully ensured that the Complainants condition did not deteriorate into gangrene or septicemia has now to pay Compensation to Complainant. The District Forum awarded Compensation only because the Complainant did not show symptoms of recovery. In other words, in this case, the result determined the deficiency of service and not the quality, nature and manner of treatment, which as per the statute is the ingredient of deficiency of service. Surely, in this case there has been an injustice as outcome of the treatment with no regard to quality, nature and manner of treatment determined the award of compensation.
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