Judgment:
JUSTICE SRI.K.R.UDAYABHANUÂ Â Â : PRESIDENT
The appellant is the complainant in CC.87/05 in the file of CDRF, Alappuzha. The complaint stands dismissed.
2. It is the case of the complainant that he was a worker in Mat and Mattings in Cherthala having ESI benefits. According to him on 10.1.2005 he consulted an ESI doctor on complaints of body pain and fever. He was examined by the doctor and after blood tests he was admitted suspecting typhoid. He was administered paracetmol injection on the left arm by the duty nurse. He felt irritation at the time of injection itself. Subsequently his hand became stiff and there was swelling. He was referred to MCH, Alappuzha on the same day. There he was an inpatient at MCH upto 25.1.2005. His left shoulder portion got completely paralysed and there was severe swelling and inflammation. At one point of time it was even proposed to amputate the hand. He still having numbness of the left hand and is unable to do any work. The complication was occasioned on account of the negligence of the doctor and duty nurse who are opposite parties 1 and 2. He has sought for a compensation of Rs. 1,00,000/-
3. The opposite parties have filed objection totally denying the allegations.. It is pointed out that the entire treatment expenses are liable to be reimbursed. It is denied that there was any deficiency on the part of the opposite parties. It is denied that there was any disability resulted. It is pointed out that he was referred from ESI, Cherthala suspecting malaria. After blood tests the affliction of malaria was ruled out. As it was noted that he had fever for 2 weeks he was admitted. As he had fever 100.40 at 3pm and body pain he was administered with paracetmol injection on the left upper deltoid portion. He was not told that it is suspected that he had typhoid. After injection by about 4pm complainant had told the nurse about the pain on the hand. There was no swelling or numbness. The duty nurse applied fomentation at the spot. Later at 6pm again he complained of pain of the hand and he was brought to the casualty by the nurse He was examined by the duty doctor. At the time there was slight swelling. Although there was no such problems he was referred to MedicalCollege Hospital. There was no negligence at all on the part of the opposite parties. The complaint is filed to harass the opposite parties.
4. The evidence adduced consisted of the testimony of PWs 1 to 7, RWs 1 to 4; Exts.A1 to A12, B1 to B4 and X1.
5. The Forum has dismissed the complaint relying on the evidence tendered RWs 1 to 3 doctors that the stiffness of the upper arm can be consequences of the narrowing of the space in the cervical spine and not due to the alleging negligence piercing of the needle..injection.
6. PW1 is the complainant himself and PW2 was bystander of another person at the ESI hospital who has stated that after administering injection there was heavy swelling. PW3 is the wife of the complainant who was supported the case of the complainant. RW1 is the Professor of surgery at MCH, Alappuzha He has not treated the complainant. He has perused the case records and testified that on account of paracetmol injection it is unlikely to result in any permanent disability. In the cross examination he has stated that there can be swelling on account of administration of injection. He was also stated that the injection if administered in a careless manner on the deltoid muscle there can be swelling. He has also stated that in the case sheet it is mentioned that there was haematoma on the left shoulder. Ultra sound scan was also done. The result of the scan is noted as hypoechoic area in deltoid muscles.
7. RW2 is the Superintendent of the medical records section of MCH who was produced the records. RW3 is the Assistant Professor of Nurology who has also treated the complainant at MCH. He has stated that in X-ray it was found that there was lessening of space in between 5th and 6th vertebra. On account of the same there can be numbness as stated. He has stated that there will be no swelling and bluish colouration on account of the above problem. He has stated that if the injection is administered in careless manner there can be such manifestations.
8. RW4 the staff nurse/2nd opposite party who administered the injection she has denied the allegation that the injection was administered in a careless manner.
9. We find that in Ext.A1 discharge card from MCH at the time of admission it is noted as deltoid swelling and ecchymotic superficial area. It is mentioned that he was referred on account of pain, swelling and numbness on left hand following paracetmol injection. On ultra sound scan it was found that there is ill defined hypoechoic area in deltoid muscle. Subsequently neuro medicine consultation was done. The area was aspirated. But there was no puss. He was discharged on decreasing oedema on the area and advised rest for three weeks as well as administration of medicines including antibiotics. Ecchymosis is the discolouration of the area of the skin caused by extra vasation of blood into the subcutaneous tissues as a result of trauma to the underlying blood vessels. The same can result only due to the unscientific manner in which the injection has been administered. The literature produced by the counsel for the complainant as to the manner in which intramuscular injection is to be administered it is specifically mentioned that at the time of administering injection nerves, blood vessels and bones should not be hurt. The manner in which the injection to be administered is also specifically mentioned therein which would show that sufficient care is to be taken at every step. The above literature downloaded from the net under the caption âHow to give an intramuscular injection-care guideâ would show that in the instant case definitely there was extravasation of blood which can only happen if the blood vessel is pierced.
10. The counsel for the appellant has also relied on the decision in Dr.K.G.Krishnan Vs. Praveenkumar(minor) of the National Commission, II 2003 CPJ 125 NC wherein in a similar case the sciatic nerve of minor was damaged and the leg became paralysed due to the negligence in administering of intramuscular injection by the nurse. The doctor was also held vicariously liable.
11. The burden of proof is not entirely on the part of the complainant is held by the Forum. In Nizam Institute of Medical Sciences vs Prasanth.S Dhananka II (2009) CPJ 61(SC) the Supreme Court has held that although initial burden to prove medical negligence is on the complainant then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or of hospital as the hospital is in a better position to declare what care was taken or what medicines were administered etc. It is due to the hospital to satisfy that there was no lack of care or diligence The Supreme Court therein has relied on the earlier decision in Savitha Garg (Smt) vs. Director, National Heart Institute 2004 8 SCC 56. The spinal problems evidently would not result in swelling of the left arm at the injection site. Admittedly the complainant was an inpatient at the MCH for 15 days. The circumstances would clearly indicate that the complication that resulted was only on account of the carelessness in the administration of the injection. The liability lies squarely on the 2nd opposite party and duty nurse. The other opposite parties are vicariously liable. The order of the Forum is set aside.
12. The opposite parties produced Ext.B1 statement which shows that the complainant was paid the premium during the period from 1.4.05 to 30.9.05 to show that the complainant had no permanent disability. Ofcourse there is no objective evidence to substantiate the case that the complainant sustained permanent disability. The complainant being a manual worker would not have been able to work for a certain period. He has also produced original bills of purchase of medicines and further he was inpatient at MCH for 15 days. In the circumstances with respect to the above sufferings and loss of earnings and ancillary expenses to be incurred during the period of treatment we find that it would be reasonable to order a sum of Rs.50000/- as compensation. The opposite parties are jointly and severally liable to pay the amount of compensation. The complainant would be entitled for interest at 9% per annum from the date of complaint ie 8.6.05. The complainant/appellant will also be entitled for costs of Rs.7500/-. The amounts are to be paid within 3 months form the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 30..4..2012 the date of this order.
In the result the appeal is allowed as above.
Office will forward the LCR along with the copy of this order to the Forum.