F.A.No.540/2007  against C.D.No.101/2005,   Dist. Forum, KARIMNAGR.                       

Between:

Dr. A.Venkataramana S/o.Appaiah,

Aged about 32 years, Occ:Doctor ,

M/s. Sri Sai  Hospital,

Markandeya Colony ,

Godavarikhani,

Karimnagar District.                                     …Appellant.

                                                                   Opp.party

        And

Jagadish Lanka S/o Gorgaiah

@ Subba Rao, aged about 28 years,

Occ::Lorry Mechanic,

Near IDL Company Centenary Colony,

Presently R/o.C-48, A Colony,

Ramagundam Village & Mandal,

Karimnagar District.                                     …Respondent/

                                                                   Complainant

Counsel for the Appellant        :  Mr.T.N.M.Ranga Rao

Counsel for the Respondent    :   M/s.T.Kiran.   

CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

AND

SMT. M.SHREESHA, HON’BLE MEMBER

               WEDNESDAY, THE TWENTY FIRST DAY OF JULY,

TWO THOUSAND TEN.

Oral Order :(Per  Smt. M.Shreesha, Hon’ble Member)

                                                ****

Aggrieved by the  order  in C.D.No.101/2005 on the file of District Forum,  Karimnagar, the opposite party preferred this appeal.

        The brief facts as set out in the complaint are that the  complainant is a lorry mechanic and he approached the opposite party on 5.9.2004  for the treatment of his right injured forefinger and on the assurance of  opposite party  he was admitted in M/s. Sri Sai Hospital and an operation was conducted  on his  injured  forefinger and he was discharged on 6.9.2004 with  a prescription  and he used the medicines regularly as advised by the opp.party  and also attended the hospital regularly for bandage etc.   After operation the complainant’s operated forefinger  become stiff and  he is unable to discharge his normal duties.The complainant subsequently approached the opposite party 3 to 4 times  and lastly on 4.1.2004  at his hospital and  requested to arrange for re-conducting  operation on his  operated right fore finger  but the opp.party refused to do so.  Vexed with the attitude of the opposite party, the  complainant  got issued a legal notice on 6.1.2005   to the opp.party    demanding to arrange for re-conducting the operation  to his right injured operated forefinger  at opposite party’s own cost  within a period of 15 days  from the date of receipt of the said legal notice  in any Corporate Hospital, Hyderabad and to pay Rs.1 lakhs towards damages but there is no response from the opposite party.  Subsequently the  complainant  approached  Dr.D.Narsimhulu at Bhanu Orthopedic Home ,Karimnagar  who advised to visit NIMS Hospital, Hyderabad. Not  able to afford to visit NIMS the complainant again visited the  Doctor at Mancherial on 3.1.2005  on whose advise  he underwent  an X-ray and expressed inability to re-conduct  the operation  on the right forefinger as it could not be made well.  Due to the negligence and deficiency in service of opp.party  in conducting the operation, the complainant   is put to huge and irreparable loss  and  he is  deprived of his source of income.   Hence the complaint seeking direction to the opposite party  to arrange  for reconducting   the operation  of his injured right operated fore finger at any good corporate hospital at the cost of opp.party, Hyderabad  and to pay  Rs.1 lakh   towards compensation  and to pay costs of Rs.1000/-.

            Opposite party filed counter   denying the averments of the complaint  and stating that   he is not working in Sri Sai Hospital   and when his services were felt necessary the said  hospital management used to call him  and on call on 5.9.2004  he went to the  said hospital and examined the injury sustained by the  complainant  and noticed that it was traumatic crush injury on the right index finger, which means the soft tissue was found  crushed and the middle phalynx was found fractured.  The opposite party explained to the complainant and his attendants  that it was a compound injury  in which both  the soft tissue  and the bone were crushed and the blood supply to the injured finger was curtailed and also told that the viability of the  injured finger is doubtful and hence advised to go for amputation of the said finger,  but the complainant and his attendants have opted for surgery   in the hope of saving the injured finger.  The opposite party  has performed surgery   on 5.9.2005  and during the course of surgery the wound was thoroughly cleaned, under aseptic precautions, K.Wire  fixation was done and the wound was sutured.  The complainant was informed that physiotherapy is a must after the wound healing, as otherwise stiffness of  finger will be caused, but the complainant  never visited     him and  never consulted him for follow up treatment.   The opposite party submits that he has  done his job well and was never negligent in treating the complainant.   The allegation made by the complainant that he consulted the opposite party lastly on 4.1.2004 and three to four times prior  there to is meaningless because the injury itself was sustained on 5.9.2004.   The complainant has not shown any purchase of medicines as prescribed  by the opp.party on 6.9.2004.  The medical bill No.1057  dt.16.12.2004   of Sri Tirumala Pharmacy, Godavarikhani filed by the complainant shows  that he purchased  the medicines prescribed by the opposite party on 16.12.2004, but he has not revealed  as to who advised  him to use the said medicines on 16.12.2004.  Opposite party states that there is no  negligence or deficiency in service on  his behalf and prayed for dismissal  of the complaint.   

        Based on the evidence adduced i.e. Exs.A1 to A7  and pleadings put forward  the District Forum allowed the complaint partly directing the opposite party to pay Rs.40,000/- towards compensation  with 9% interest p.a. from the date of complaint till the realisation and costs of Rs.1000/- within one month from the date of receipt of the  order.

        It is a case of the complainant that he is a lorry mechanic and on 5.9.2004   while he was  repairing a gear box, it fell on his right index finger  due to which incident his  finger  was crushed and almost hanging and in a  detached condition  and he approached  opposite party at   3 p.m.  and  on the same day  the opposite party operated on the right index finger and assured him that the finger will be cured and discharged him on 6.9.2004.  Ex.A2  is the prescription issued by the opposite party to use the medicines for three weeks.  It is the complainant’s further case that he has paid  Rs.1600/-  and again Rs.2,500/-  to the opposite party but his finger is not in a position to  be moved and he was unable to perform his daily duties for which he suffered a lot and he claims compensation of Rs.1 lakh for the  negligent operation conducted by the opposite party.  The learned counsel for the opposite party contend that the appellant  herein specifically advised the complainant and explained all the complications  but the complainant  did not follow his advise  and medical bill dt.16.12.2004  itself shows the  consequences as to when the medicines are to be used and that the complainant did not use the medicines at appropriate time and that the opposite party operated on the finger with due care and that the complainant did not follow the advise given by the opposite party and did not  come for follow up and the opposite party is not aware as to what happened to the patient after 6.9.2004.

It is not in dispute that  the complainant was operated on 5.9.2004 and a  ‘K’ wire was fixed  and  he was discharged on 6.9.2004.  In his deposition RW.1  doctor deposed  that the complainant’s right index  finger was completely crushed  and bone was totally fractured.  He contends that he explained to the complainant  that if the operation  is conducted on that, the chances of saving the finger is very less.  The Doctor deposed  that he operated  upon the finger with care and caution and asked the complainant to do physiotherapy and come for follow up  and review.   Ex.A6 is the legal notice got issued by the complainant to the opposite party  that his right  fore finger movement is restricted and he is not able to discharge his normal duties  and calls up the opposite party to   arrange  for re-conducting  the operation on his  right fore finger and pay damages.   

        The complainant  submits that it was only because the doctor refused to treat him inspite of visiting him subsequent to his operation  that he approached Mancherial and Karimnagar  hospitals  where he was advised to visit NIMS, Hyderabad  where he was told that the  chances of restoration of his operated finger  is only 50%.

        It is pertinent to note that when the opposite party doctor himself states that  the bone was completely crushed and that the finger was almost hanging on to the skin and that he inserted ‘K’ wire during the operation, contends  in the same breadth  that he explained to the complainant  orally the schedule of the treatment to be followed which includes physiotherapy.   He  further deposed that   he had asked the complainant to  consult him after 5 days  of  discharge.  Careful perusal of Discharge Card does not speak either of the physiotherapy or schedule of the review.  The post operative care and precautions were not explained to the complainant as seen from the Discharge Card.  It is also  apparent from the face of the record that the complainant was not explained the risks and prognosis  and informed consent was taken from him prior to the conducting surgery.  We rely on the decision of the  Hon’ble Supreme Court in  Samira Kohli Vs. Dr. Prabha Manchanda & Another  reported in (2008) 2 SCC 1  wherein it is held as follows:

(i)       A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii)      The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the  patient to make a balanced judgment as to whether he should  submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that  the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any  available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain  remote or theoretical risks involved, which may frighten or confuse  a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or  theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance  should  be achieved between the need for disclosing necessary and  adequate information and at the same time avoid the possibility of  the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii)     Consent given only for a diagnostic procedure, cannot be  considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized  additional surgery is beneficial to the patient, or that it would save  considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery.  The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or  preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

From the afore mentioned judgement it is evident  that the opposite party doctor ought to have taken the informed consent of the complainant prior to operating on him and  ought to have explained him the  risks and prognosis and also post operative care  i.e. physiotherapy.  Taking into consideration the expenses which the complainant had to incur subsequent to the operation and also the fact that he is a lorry mechanic  and the non usage of his finger has affected his livelihood  directly, the District Forum has awarded Rs.40,000/- which we are of the considered view is reasonable and  meets the ends of justice . Therefore we  see no reason to interfere  the well considered order of the District Forum .

        In the result this appeal fails and is accordingly dismissed.  Time for compliance four weeks.

                                                                        PRESIDENT

                                                                        MEMBER

                                                                        Dt. 21.7.2010

Pm*