KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.465/2011

                             JUDGMENT DATED:17.02.2012

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI.M.K. ABDULLA SONA                            : MEMBER

1.         Mallya City Hospital,

Near LML General Motors,

Aswini Nagar, Kasaragod.

                                                                                    : APPELLANTS

2.         Dr. Suresh Mallya,

Mallya City Hospital,

Near LML General Motors,

Aswini Nagar, Kasaragod.

(By Adv:Sri.M.C. Suresh)

            Vs.

Abdul Majeed,

S/o Late Abdullakunhi,

Moolayadukkam house,                           : RESPONDENT

Peradala.P.O,

Neerchal, Kasaragod.

(Amicus Curiae by Adv:Sri.C.S.Rajmohan)

                                       JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

Appellants are the 1^st opposite party, hospital and the 2^nd opposite party, Orthopedic Surgeon in CC.118/05 in the file of CDRF, Kasaragod.   The appellants are under orders to pay a sum of Rs.1.lakh as compensation and Rs.7,500/- towards cost, to be paid within 30 days from the date of receipt of the order failing which to pay interest at 9% from the date of complaint. 

2.      The case of the complainant is that he sustained injuries while driving autorickshaw on 30.07.2003 and was admitted at the opposite party hospital on the same day.  The complainant has sustained contaminated, compound fracture and dislocation of the right ankle.  He was an inpatient up to 3.9.2003.  On the same day of admission he underwent an orthopaedic surgery.  Thereafter plastic surgery was conducted by Dr.Leo Theobald Menezes.  As against the advice of the above doctor that he should undergo daily dressing twice till complete cure he was discharged by the opposite parties after putting POP cast on his right ankle on 3.9.2003.  At the time the ankle joint of the complainant was slugging.  No implementation of steel rod was done.  After expiry of 2 days there was foul smell at the right ankle and flesh began to decompose.  He consulted at rest on OP1’s hospital on 5.9.2003. On that day the 2^nd opposite party doctor removed the POP cast and again discharged after dressing the wound and again POP cast was put.  On account of intolerable pain on 8.9.03 he was again admitted in the above hospital and again the POP cast was removed and again POP cast put.  Due to pain he got admitted again on 12.09.03.  The same procedure was repeated on that day also.  On 14.9.2003 also the same procedure was repeated.  On 18.9.2003 also the same procedure was done. Being totally disabled and under intense pain he was admitted at Colaco Hospital, Mangalore on 22.9.03 and he was an inpatient therein till 6.10.03.  Thereafter also he is being treated at Colaco Hospital, Mangalore. He underwent multiple operations and steel rod was implanted on his right ankle and was also subjected to plastic surgery.   Right now he is totally disabled.  He has spent Rs.3.lakhs for the treatment.  Whenever he visited the opposite party, the opposite party doctor was assuring that he will be recovering soon.  The opposite parties discharged the complainant against the medical advice of the Plastic Surgeon. He has alleged negligence on the part of the opposite parties and has claimed Rs.3.lakhs as compensation.

3.      The opposite parties have filed joint version pointing out that the injury sustained by the complainant was very severe and the foot portion was hanging out from the ankle.  There was fracture with dislocation of the ankle with skin loss.  He was a chronic insulin dependant diabetic patient with visual disturbance, peripheral neuropathy and also chronic migraine on medication.  He was also a chronic smoker.  In such a situation complications like repeated infection, resistance to antibiotics, delayed union, non union etc is possible.  It was a type 3 compound comminuted fracture with dislocation of ankle and skin loss.  After necessary investigations debridement  of the wound and reduction of the ankled dislocation with K-wire fixation for the medial malleolus was done under anesthesia.  Culture and sensitivity test was done.  Thereafter POP slab was applied.  As the severity of the injury was very high and pre-existing complicating medical conditions the relevant photographs exhibiting the condition and stages of its progress were taken for clinical interest and academic purposes.   Diabetic management was done by Dr.P.P.Rao, Physician.  The complainant was given standard treatment by regular dressing, supportive care and blood transfusion etc with change of antibiotics according to culture sensitivity.  Once the wound was relatively better, a raw area with the bone exposed over the medial aspect of the ankle was present.  Second opinion from another Orthopedic Surgeon, Dr.Jalaluddin, M.S Ortho, Unity Health Complex, Mangalore was taken for further management.  A flap surgery by a plastic surgeon for the raw area with exposed bone of the ankle was planned. On 24.8.03 Dr.Leo Theobald of Colaco Hospital, Mangalore with the assistance of the 2^nd opposite party did the plastic surgery on the affected area with full thickness skin flap taken from the same limb and POP slab was applied for support.  Regular dressing blood transfusion etc was given on 3.9.2003 when the wound was clean the complainant was discharged from the hospital.  He was directed to come regularly for follow up and control diabetes in consultation with a Physician.  He did not do the proper follow up. He came to the hospital only on 3 occasions after discharge.  After about 10 days when the complainant visited the 2^nd opposite party, since there was no further active orthopedic management at that point of time and that a matter of abundant caution the complainant was referred to Dr.Leo Theobald, plastic surgeon for further follow up at Colaco Hospital, Mangalore.  Thereafter the complainant has not visited the 1^st opposite party.  The treatment provided was with adequate care and as per the medical protocol.  The rest of the allegations are denied.

4.      The evidence adduced consisted of the testimony of PW1, DWs 1 to 3, Exts.A1 to A24, B1 to B5.

5.      X1 to X5 the treatment records of Colaco Hospital seen in the case bundle were marked in appeal proceedings.

6.      It is the contention of the appellants/opposite parties that there was no negligence at all and that in fact the complainant has been asked to consult the plastic surgeon for review after discharge from the opposite party hospital but he went to the plastic surgeon at Colaco Hospital, Mangalore only on 22.9.2003 whereas he was discharged from the opposite party hospital on 3.9.03.  According to the appellants every possible care was given to him.  But the complainant did not consult the Physician so that the acute diabetes that he was having was not controlled which would have complicated the condition.

7.      The Forum has found that there were no proper directions/instructions given to the complainant at the time of discharge and that the complainant was totally under dark and ignorant about the post operative procedure, after skin grafting.  It was also found that the 2^nd opposite party, doctor failed to diagnose necrosis, even after frequent visits by the complainant for review.  It was also noted that the administration of ziprovit a food supplement which contained sugar instead of ziprovit-D also evidenced carelessness and negligence. It was also found that not issuing a reference letter to the complainant also would amounted to deficiency in service.  The Forum has stressed that the complainant ought not to have been discharged on 3.9.2003 as DW2, the plastic surgeon has testified that necrosis can be caused by walking also and also due to irregular follow up.

8.      We find that the complainant was an inpatient at the opposite party hospital from 30.7.2003 to 3.9.03 ie 35 days.  On 3.7.03 he underwent surgical procedures including wound debridement, K-wire fixation etc under general anesthesia.  It is noted in Ext.B1 case sheet that the injury was compound comminuted contaminated fracture dislocation.  It is noted in Ext.B1 that cultural sensitivity test and the sugar monitoring was done.  On 16.8.03 it is noted that a large raw area of 5 x 8 cms over the medial aspect of ankle with bone exposing was found and thereafter opinion of the plastic surgeon was obtained.  The complainant was also being seen by the Physician. The plastic surgeon of Colaco Hospital/DW2 did the plastic surgery under spinal anesthesia on 24.8.03.  Evidently, DW2 was only a visiting plastic surgeon at the opposite party hospital.  Before the plastic surgery done it is seen that Dr.Jalaluddinn, the Orthopedic surgeon of Unity Hospital, Mangalore who had visited the opposite party hospital was also consulted ie on 16.8.03.  It is after that the plastic surgery done on 24.8.03.  After 10 days he was discharged on 3.9.03. It is seen from Ext.X1 to X5 of Colaco Hospital Mangalore that was inpatient at Colaco Hospital from 22.09.03 to 6.10.2003. He underwent plastic surgery as well as external fixator application on 22.9.03 on spinal anesthesia at Colaco Hospital.  Thereafter from 13.10.03 to 25.10.03 again he was an inpatient at Colaco Hospital.  From 2.12.2003 to 3.12.2003 also he was an inpatient at Colaco Hospital. On 28.1.04 he was admitted at Colaco Hospital and discharged on the same day.  Evidently, the complainant has undergone prolonged treatment and underwent multiple surgeries.

9.      PW1, the complainant has stated that after the surgery, the leg was put in POP cast and the same also caused infection.  As pointed out by the counsel for the appellants we find that in Ext.B1 case sheet, what has been noted is that POP slab has been applied.  The counsel has explained that it is applied on the posterior side to support the leg.  Hence the above contention is devoid of merits.

10.    It was also contented that K wire fixation was not sufficient and that subsequently rod was implanted at Colaco Hospital. Neither DW1, the 2^nd opposite party doctor or DW3 the Orthopedic Surgeon of KMC Hospital, Mangalore examined as expert was cross-examined on the above aspect.  Further subsequently at Colaco Hospital, Mangalore as evident from Ext.X1 case sheet only external fixator has been applied in Ext.X2 screws are also noted.  Anyway the above case was not put to the above witnesses and hence we find that the above contention stands not proved.

11.    It was also contented that ziprovit given as dietary supplement should not have been given to a diabetic patient like the complainant  and that ziprovit-D is the one meant for diabetic patients.  As pointed out by the counsel for the appellant there is no evidence adduced with respect to the ingredients of ziprovit and also there is no scientific basis for the contention that dietary supplement containing sugar contents should not be given to a diabetic patient who is hospitalized.  Hence we find that the above contention also cannot be sustained.

12.    The case of the complainant is that the plastic surgeon/DW2 had directed that the complainant should not be discharged till 20 days after the surgery and that the opposite parties discharged him in a hasty manner on 3.9.2003 and that further the directions of the plastic surgeon that the wounds should be dressed twice a day was also not observed and further on account of the discharge on 3.9.03 the surgery site was not dressed thereafter daily as suggested by the plastic surgeon.  DW2, the plastic surgeon has stated that his post operative orders included checking the wound flap on every alternate day or if required daily and if there are any complications to inform him.  He has denied that there was any such direction to keep the complainant as an inpatient for 20 days.  He has also stated that he has not advised dressing the wound twice a day.  He has further stated that if the wound is clean usually the patient will be kept in the hospital for 10 days and thereafter follow up made in the hospital.  Page 14 and 15 of Ext.B1 case sheet contains operation notes of the surgeon. It is mentioned therein as dressing after 4^th day at the grafted area and to check flap daily/alternate days.  DW2 has further stated that when he examined the complainant on 22.9.03 at Colaco Hospital, the complainant was having (1) Haematoma below the flap (2) Flap tip necrosis (3) EHL tendon necrosis (4) Diabetic Mellitus with graft infection and (5) Infection on the wound and flap.  He has also stated that tip necrosis may be caused due to walking by the patient or may be due to irregular follow up or due to failure to control diabetes or due to chronic smoking.  Entarthritis and Poly Neurosis is due to diabetes and smoking. He has stated wound debridement/slough excision, external fixation and re-setting of the flap was done on 23.9.03 under spinal anesthesia at Colaco Hospital.  The contention is that the above deterioration in the condition of the complainant was occasioned on account of the early discharge of the complainant from the opposite party hospital.  It was put to DW1 the 2^nd opposite party doctor who is also the Director of the 1^st opposite party hospital that DW2/plastic surgeon called him at Mangalore and scolded him.  Both DW1 and DW2 has denied such incident.

13.    It is the contention of the complainant that he was discharged from the hospital prematurely and inspite of his request to remain in the hospital as allegedly advised by the plastic surgeon.  It was put to DW1 that he discharged the complainant hastily as by retaining him in the hospital there will be no profit to the hospital as the surgery etc was over and as new patients had to be admitted.  Of course DW1 has denied the same.  It was brought out from the evidence of DW1 that the hospital is having the capacity of only 25 inpatients.

14.    It was pointed out that in Ext.A2 medical certificate issued at the time of discharge the advice on discharge noted is only “review with plastic surgeon for further management”.  There is also the word “follow up”.  It is the case of the opposite parties that the complainant was asked to meet the plastic surgery.  As pointed out by the counsel for the respondent/complainant no date on which the plastic surgeon is to be consulted is mentioned in Ext.A2.  According to the complainant he has gone to the opposite party hospital on 5.9.03, 8.9.03, 12.9.03, 15.9.03and 18.9.03 ie 5 times.  On the other hand, according to the opposite parties he came over to the hospital only thrice ie on 5.9.03, 8.9.03 and 12.9.03 only after discharge.  The records produced by the complainant also there are receipts issued from the hospital only with respect to the 3 dates as mentioned by the opposite parties.  According to the complainant on each occasion, the opposite parties just opened the plaster cast and re-applied the same inspite of the fact that the complainant was having severe pain.  The same is denied by the opposite parties.  According to the complainant due to acute infection when he met the opposite party doctor he just gave the telephone number of the plastic surgeon and even did not provide the reference letter.  According to the opposite parties it was made clear to the complainant that he should consult only the plastic surgeon and that on the 3 occasions when the complainant was examined at the opposite party hospital subsequent to discharge there was no infection.

15.    DW3, the Orthopedic surgeon of KMC Hospital, Mangalore who has only seen the records on the date of his examination has stated that the opposite parties has provided the required treatment and that the worsening of the condition that was found on 22.9.03 ie sub flap Heamotoma with elevation of the flap and tip necrosis can be due to the nature of the injury, diabetes mellitus of the patient and the delay of 10 days in follow up.

16.    It was also pointed out that although it is mentioned in Ext.B1 case sheet that culture and sensitivity tests were done the results of the test reports are not seen in Ext.B1.  The same stands not explained.  It was also brought out in evidence that the house of the complainant is 15 Kms away from the 1^st opposite party hospital.  The same is relevant especially as DW2, The plastic surgeon has mentioned that the deterioration of the condition cannot be due to walking, as pointed out. 

17.    We find that in Ext.B1 at page 11 dated 16.8.2003 it is mentioned as that Dr.Jalaluddin the Orthopedic Consultant, Unity Heath Complex, Mangalore from whom a 2^nd opinion was sought that the site of the injury after the K wire fixation etc was seen as a large raw area of 5 x 8 Cms over the medial aspect of ankle portion bone exposed.  It is as advised by him that the plastic surgeon on 24.8.03, the plastic surgery was done.

18.      It appears to us that the complainant ought to have been referred to a higher centre at least on 16.8.03 especially as there was no facility for plastic surgery at the opposite party hospital.  It is after 8 days thereafter that the complainant was subjected to plastic surgery, so also after the plastic surgery also at least at the time of discharge the complainant ought to have been directed specifically to consult the plastic surgeon at Mangalore and a reference letter as to the condition of the patient should have been provided to the complainant.  On the other hand, admittedly on 3 occasions ie on 5.9.03, 8.9.03 and 12.9.03 the complainant was examined by DW1.  There is no record produced to show that on those occasions the opposite parties directed the complainant to go to Mangalore and consult the plastic surgeon.  Evidently the opposite party hospital is not a major hospital and the complainant admittedly required close monitoring as he was even according to the opposite parties an acute diabetic patient with diabetic retinopathy, peripheral neuropathy etc.  It is also subsequently noted that he was having diabetic nephropathy.  It is further noted in the version itself as the severity of the injury was very high and with pre-existing complicating medical conditions, relevant photographs exhibiting the conditions and stages of its progress were taken for clinical interest and academic purposes (para 3 (c) of the version).  Subsequent repeated episodes of inpatient treatment and surgeries underwent at Colaco Hospital, Mangalore also indicated that the particular patient required highly expertised treatment and constant monitoring.  Such a patient ought not to have been discharged as in the case of  a normal  patient  who

can be discharged subsequent to the surgery at an early date.  We find that retaining such a patient in the opposite party hospital is a serious lapse and negligence on the part of the 1^st opposite party doctor.  In this regard we find that no interference in the order of the Forum is called for.

19.    The amount of compensation ordered to be paid is Rs.1.lakh which is not at all excessive if not on the lower side.  Hence we find that no interference in the order of the Forum in this regard is also  required.  The opposite parities are directed to make payments within 3 months from the date of receipt of this order failing which the opposite parties would be liable to pay interest at 12% from 17.2.2012 the date of this order.

In the result the appeal is dismissed as above.

Office will forward the LCR to the Forum along with a copy of this order.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

M.K. ABDULLA SONA: MEMBER

VL.