BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA No.822/2013 against CC.No.1075/2010, District Consumer Forum-II, Hyderabad.
Between:
1.The Medical Superintendent,
Image Hospital, Ameerpet,
Hyderabad-500 073.
2.The General Manager,
Image Hospital
Ameerpet,
Hyderabad-500 073.
…Appellants/
Opp.parties 1 & 3.
And
1.P.Rangaraju, S/o.P.Ramraju,
Aged 45 years, Occ: Driver,
R/o.11-20-677/245,
New Vivekanandanagar, Borabanda,
Hyderabad – 500 018.
…Respondent No.1/
Complainant.
2.Dr.N.Arun Kumar,
S/o.not known to the complainant
Aged 45 years, Occ: Surgeon in Orthopedics
C/o.Image Hospital,
Ameerpet, Hyderabad.
…Respondent No.2/
Opp.Party No.2.
Counsel for the Appellants : M/s.D.Vijendra Kishore.
Counsel for the Respondents : M/s.U.Peddanna - R.1.
Notice to R2 held sufficient.
QUORUM: HON’BLE JUSTICE SRI GOPALAKRISHNA TAMADA, HON’BLE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY, THE FIRST DAY OF MAY,
TWO THOUSAND FOURTEEN .
Oral Order (Per Sri S.Bhujanga Rao, Hon’ble Member)
*******
The opposite parties 1 and 3 in CC.No.1075/2010 before the District Consumer Forum-II, Hyderabad, are the appellants. This appeal is preferred against the order of the said Forum dated 18.04.2013, whereby the said Forum directed the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.35,038/- towards medical expenses and also to pay an amount of Rs.1,00,000/- towards compensation and Rs.5,000/- towards costs.
The case of the complainant as per the complaint is that on 15.11.2009 at about 11.10 p.m. in the evening, while he was crossing a road at Panjagutta, he met with an accident and got fracture to his right leg. Immediately thereafter, he was admitted to Image Hospital and the casualty team gave him the required treatment under the supervision of Dr.N.Arun Kumar, who is added as opposite party No.2. As there was no response and the X-ray clearly establish the fact that there was fracture, the opposite party No.2 with the consent of the complainant conducted surgery on 18.11.2009 and thereafter it was declared that the said surgery was a success. After discharge, the complainant, as he did not get any relief from the pain, again approached the said doctor i.e. opposite party No.2. On 4.1.2010 X-ray was taken, but as the said doctor had not given proper reply he went away. Later, he consulted the doctors at Bhimavaram and he was admitted into Ortho, Trauma & Critical Care Hospital at Bhimavaram on 8.2.2010, where Dr.Shivashankar again made a surgery to the complainant’s right leg on 9.2.2010 and removed the big screws, which were fixed by the doctors of the opposite party No.1 hospital and replaced the same with small size screws. Later, he was discharged on 12.2.2010 and according to him, after the said surgery by Dr.Shivashankar, particularly after removal of the big screws by replacing with small screws, he got total relief. In those circumstances, complaining medical negligence on the part of the opposite parties, he approached the District Forum and filed the said complaint claiming a total compensation of Rs.5.00 lakhs with interest
The said complaint was resisted by the opposite parties by filing their written version, wherein they admitted the fact of accident, admission of the complainant in their hospital and also the operation conducted by opposite party No.2. According to the opposite parties, it was a compound fracture and dislocation of right ankle, and therefore, distal fibula was not fixed. The surgery was done on 18.11.2009 with open reduction, debridement, removal of necrotic tissue and fixation of medical malloelus. The opposite parties denied the treatment that said to have been undergone by the complainant in Avinash Ortho, Trauma & Critical Care Hospital at Bhimavaram. The treatment was done as per the prescribed norms. The surgery was done successfully and the patient was advised to come up for follow up after six weeks. According to them the second operation i.e. plating has to be done only after the closure of the infection. According to the doctors, there was no negligence on their part. The opposite parties need not pay any compensation.
During the course of enquiry before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A50. On behalf of the opp.parties, opp.party no.2 filed evidence affidavit and the opp.parties got examined Dr. Ravindra Babu as RW.2 and got marked Exs.B1 to B10.
Having considered the submissions of both the parties and material on record, the District Forum came to the conclusion that there was deficiency in service on the part of the opp.parties and allowed the complaint, in part, directing the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.35,038/- towards the medical expenses spent by the complainant during the second operation at Bhimavaram and further directed to pay an amount of Rs.1 lakh towards compensation for causing mental agony etc. and a sum of Rs.5000/- towards costs of the complaint.
Aggrieved by the said order, the op.parties 1 and 3 preferred the above appeal urging that the District Forum erroneously came to the conclusion basing on Ex.A4 X-ray report that the respondent/complainant had one fracture i.e. leg was broken, whereas the appellants/opp.parties specifically mention in their written version filed before the District Forum that the respondent/complainant suffered compound fractures, therefore plates were not fixed. The District Forum observing the medical record, vaguely reached to the conclusion and found negligence on the part of the appellants/opp.parties. The District Forum wrongly came to the conclusion that RW.2 gave evidence basing on Case Sheet only, but he did not see the X-rays relating to the respondent/complainant and therefore the evidence of RW.2 is not helpful. The District Forum has not insisted the respondent/complainant to produce any expert evidence nor Dr.Sivasankar’s evidence who conducted the second operation to the complainant. In the absence of such proof, the District Forum reached to the said conclusion, which is unjustified. That the District Forum failed to appreciate the fact that the appellant conducted operation to the respondent/complainant on 18.11.2009, whereas the second operation was made to the complainant on 09.02.2010 which is more than two months after the first treatment. Therefore, the District Forum ought to have considered the fact mentioned in the written version that due to failure of complainant to take home rest and follow up treatment caused weight bearing exercising on injured leg might have caused break of screw in the leg or any other reason. But the District Forum wrongly came to the conclusion that the appellant hospital and Dr. Arun Kumar were negligent in treating the complainant. The appellants finally prayed to allow the appeal and set aside the impugned order.
We heard the counsel for the appellants and the respondent/complainant and perused the material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The fact that the complainant met with an accident on 15.11.2009 at 11.10 p.m. and sustained fracture of his right leg in the accident is not disputed by the opposite parties. It is an admitted fact that the complainant was admitted to opposite party no.1 hospital on 16.11.2009 at 2.24 p.m. and that opposite party no.2 conducted operation on the complainant on 18.11.2009 and discharged the complainant on 21.11.2009 stating that the operation was successful.
It is the case of the complainant that opposite party no.2 need to place plates in the place of fractured lower 1/3rd of shaft of fibula and also need to fix fracture medial malleous with screws fixation in situ. But the opp.party no.2 carelessly used very heavy and cheap screws, to fix fracture medial malleous with screws fixation in situ in the surgery. He did surgery without following the required medical care and with grossnegligence. The further case of the complainant is that even after discharge from the hospital, the complainant continued to get pain and approached opposite party no.2 several times for his treatment, on 4.01.2010 the complainant approached the opposite party no.2 complaining pain and opposite party no.2 took Ex.A4 X-ray. The Ex.A4 X-ray clearly shows the fracture and the heavy screw of not good standard fixed instead of small screw and advised the complainant to take pain killers. Thereafter, due to his unbearable pain, the complainant got admitted in Avinash Ortho, Trauma and Critical Care Hospital, Bhimavaram on 08.02.2010 where Dr.Shivashankar conducted operation on 09.02.2010 and removed big screw and put small screw in its place and discharged the complainant on 12.02.2010. It is further alleged that the opposite party no.2 did not conduct the surgery properly.
The opposite parties have not disputed the fact that on 04.01.2010, the complainant again approached opposite party no.2 and opposite party no.2 took Ex.A4 X-Ray of the fracture and that the Ex.A4 clearly shows the fracture and the screw fixed. Instead of making the efforts toknow the reason for the complainant getting continuous pain, even after operation was conducted, the opposite party no.2 simply asked the complainant to take pain killers.
The opposite parties have not disputed the fact that the complainant got admitted in Avinash Ortho, Trauma and Critical Care Hospital, Bhimavaram on 08.2.2010 and Dr.Sivashankar conducted operation on 09.02.2010 and discharged on 12.02.2010. The complainant has stated in his evidence affidavit about the said fact and filed Exs.A21 to A38 medical bills issued by the said Avinash Ortho, Trauma and Critical Care Hospital. As per Ex.A21, the complainant paid an amount of Rs.24,900/- on 12.02.2010 to Avinash Ortho, Trauma and Critical Care Hospital. Ex.A18 is the X-ray taken in the said hospital at the time of second operation and it shows that there is fracture to right leg of the complainant after removal of the screw. Ex.A20 is the X-ray taken on 23.03.2010 1 ½ month after the second surgery conducted by Dr.Shivashankar. Ex.A20 clearly shows that during the operation he fixed the plates after removal of the screws. It is mentioned in the order of the District Forum that the complainant produced the screw which was fixed by the opposite party no.2 and removed by Dr.Siva Shankar and the screw produced before the District Forum is a big screw. The opp.parties have not disputed the said fact stating that the said screw produced is not the same screw fixed by opposite party no.2 at the time of first operation in opposite party no.1 hospital. It is the specific case of the complainant that he used to get pain continuously even after the first operation conducted by opposite party no.2, till the date of the second operation conducted by Dr.Shivashankar and after removal of this big screw and after fixing of the plates in its place, the complainant got relief from pain. We do not find any reason to disbelieve the said case of the complainant. Had the opposite party no.2 conducted the operation by applying care and caution, there is no need for the complainant to approach another doctor, who conducted second operation on the complainant successfully.
In these circumstances, we are of the view that irrespective of the fact whether fracture sustained by the complainant is compound fracture or simple fracture, the opposite party no. 2 committed negligence in conducting operation and in treating the patient after operation.
For all the afore said facts and circumstances, we do not find any irregularity or illegality in the impugned order of the District Forum, which was made considering the principles of law on medical negligence laid down by the Hon’ble Supreme Court in 1).Kusum Sarma and others vs. Batra Hospital and Medical Research Centre and others 2010, CTJ 241 SC and 2). Jacob Mathew . State of Punjab, reported in 2005 (6) SCC I.Hence the appeal fails.
In the result, the appeal is dismissed confirming the order of the District Forum. The appellants are directed to pay a sum of Rs.5000/- to 1st respondent/complainant towards costs of this appeal.
PRESIDENT
MEMBR
Pm* Dt. 01.05.2014
