Kerala

Idukki

CC/59/2017

Kochumol Scariya - Complainant(s)

Versus

Administrator Morning Star Hospital - Opp.Party(s)

Adv.Pathalil

25 Nov 2022

ORDER

 

 

DATE OF FILING : 30.3.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 25^th day of  November, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.59/2017

Between

Complainant                                            :   KochumolScaria, W/o. Scaria,

                                                                    Maruthanal (Niravathukandathil) House,                                                                Chithirapuram P.O.,

                                                                    Anachal, Kunchithanni, Idukki.

       (By Adv: Pratheesh Prabha)

And

Opposite Parties                                       : 1. The Administrator,

                                                                      Morning Star Medical Centre,        

                                                                      Adimali P.O.

           (By Adv: K. Rainge)

      2.  Dr. Jacob, Orthopedician,

                                                                      Morning Star Hospital,

                                                                      Adimali.

(By Adv: Johnson Joseph)

                                                                             3.  Dr. Jacob,

                                                                      Orthopedician,

                                                                      Bishop Vayalil Hospital,

                                                                      Moolamattam.

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1.  This is a complaint filed under Section 12 of Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant had met with an accident on 11.1.2016, for which she had gone for treatment in 1^st opposite party hospital, namely, Morning Star Medical Centre, Adimali, which is represented by its Administrator in this proceeding.  She was examined and treated by 2^nd opposite party, Dr. Jacob, Orthopedist, working under 1^st opposite party.  After examination and investigation, it was revealed that complainant had sustained fracture of her left knee.  2^nd opposite party had advised insertion of a steel plate as an implant.  As advised, a steel plate/rod was implanted in the fractured leg.  After surgery                                                                                                                       (cont…2)

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on 18.1.2016, complainant was discharged from the hospital on 29.1.2016.  1^st opposite party had charged Rs.23,000/- for the steel implant and Rs.52,000/- for surgery and allied treatment expenses.  Thus a total of Rs.75,000/- was spent by complainant for treatment.  Though complainant was advised rest for only 2 months, she had taken rest for 5 months.  However, upon experiencing pain in September 2016, she had gone to 1^st opposite party hospital.  X-ray was taken and it was revealed that a screw of steel implant had fallen out. It was removed after surgery and complainant was sent back.  Since pain subsisted, complainant had again approached 1^st opposite party for treatment.  She was given pain killers and sent back.  As there was no relief, complainant had gone to Kothamangalam Government Hospital in October 2016.  A detailed investigation was done.  As advised by the doctor at Kothamangalam Government Hospital, she had gone to District Hospital at Thodupuzha for expert management.  A scan was taken of the affected leg and it was found that steel plate/rod implanted inside the leg was broken.  A surgery was again done by Orthopedist Dr. Finix Baby of District Hospital, Adimali, broken implant was removed and new one was fixed inside the knee.  2^nd steel implant had costed only Rs.16,500/-.  Complainant alleges that 1^st opposite party had by pressurizing 2^nd opposite party, implanted a steel plate/rod which was of inferior quality.   Due to this, it had broken and caused much sufferings and inconvenience to complainant.  Complainant further alleges that this is deficiency in service on the part of opposite parties and prays for a compensation of Rs.50,000/- towards deficiency in service, Rs.50,000/- to compensate for pain and sufferings undergone by her due to deficiency in service, for return of Rs.16,500/- expended by complainant for the 2^nd steel implant, reimbursement of Rs.30,000/- spend by her towards medicines and treatment expenses, Rs.40,000/- as compensation for loss of employment and Rs.10,000/- towards litigation costs from opposite parties. 

 

2. During the pendency of proceedings, complainant had filed IA 27/2018 seeking impleadment of doctor who had treated complainant which was allowed. However, we notice that 2^nd opposite party, one Dr. Jacob, who had by that time left employment of   1^st opposite party hospital and joined Bishop Vayalil Hospital at Moolamattam, as Orthopedist was again impleaded as 3^rd opposite party in original complaint. This discussion became necessary for the reason that, though there was already appearance by 2^nd opposite party, Dr. Jacob, as the Orthopedist of 1^st opposite party, a written version is seen filed by  Managing Partner of Osteo Plus Surgicals as 3^rd opposite party,claiming to be distributor of the product, namely, the steel implant.  We notice that there was no motion by complainant for impleading implant manufacturer and neither it was ordered by this Commission. 

 

3. Opposite parties and the manufacturer of steel implant have filed detailed written versions.  Contentions addressed by 1^st opposite party are briefly discussed here under :

 

                                                                                                      (cont….3)

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According to 1^st opposite party, complaint is not maintainable in law or upon facts.  Complaint filed against administrator, without impleading the Doctor who had treated the complainant  is bad for non-joinder of necessary parties.  Steel implant used for corrective procedure had ISO certification.  It is manufactured by a concern, Sigma Surgical Pvt. Ltd.  (ISO 13485).  It is incorrect to say that steel implant was of inferior quality.  It is true that complainant was admitted in 1^st opposite party hospital and treated by Dr. Jacob, who is a very experienced orthopedist.  Corrective procedure was followed in accordance with medical protocol.  Implant used was of prescribed quality having ISO certification.  It is incorrect to say that steel plate/rod had broken as it was of inferior quality.  It is further incorrect to say that the broken implant was removed and a new one was implanted on 27.11.2016, by Dr. Finix Baby of Adimali Government Hospital.  It is incorrect to say that 1^st opposite party had pressurized 2^nd opposite party to implant a steel plate/rod of inferior quality.  There was no deficiency in service.  Complainant has not sustained any injury or suffered pain due to any acts of 1^st opposite party.  Complaint is to be dismissed with costs as it is experimental in nature.

 

4. 2^nd opposite party, the doctor who had treated complainant has filed a detailed written version contending the allegations leveled in the complaint.  His contentions are briefly discussed here under :

 

According to 2^nd opposite party also, complaint is not maintainable in law or upon facts.  Manufacturer of the implant, who is a necessary party is not impleaded.  Complainant had come to 1^st opposite party hospital on 11.1.2016 with history of pain in left leg following a fall.  She was initially seen by duty RMO.  Investigation reveals that she had fracture of distal end of femur with bleeding.  Pre-operative procedure as per medical protocol was initiated and patient was put on IV fluids.  2^nd opposite party had found that complainant had type 1 supracondylar fracture of left femur.  Nature of fracture and its treatment by open reduction and internal fixation was discussed with the patient and her bystanders.  They had agreed for surgery for fixation of fracture.  Thereafter surgery was done and LIS plate (distal femoral locking plate and screw) was implanted through postero lateral distal femur approach.  Surgical procedure was uneventful and patient was kept under close observation.  During post operative period, patient was put under proper antibiotics.  There were no signs of infection upon regular inspection of wound.  X-ray revealed that fracture fixation position was good with normal findings.  After healing of surgical wound, sutures removed on 12.4.2016.  X-ray taken during review showed that fracture was uniting.  Hence physiotherapy was initiated and complainant was advised gradual and guarded partial weight bearing with walker. Physiotherapy exercises were also prescribed.  On 2^nd review done on 31.5.2016, X-ray revealed that the fracture was uniting.  Patient was advised to continue physiotherapy and was advised gradual and guarded partial weight bearing with support.  On 31.5.2016, 2^nd opposite party had left the employment of 1^st opposite party and therefore was not able to follow up the treatment.  2^nd opposite party submits that he had                                                                                                      (cont….4)

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exercised reasonable skill and care in fracture fixation.  He had used distal femur lock plate for fixation which was the ideal implant for the nature of fracture sustained by complainant.  High quality implant with standard specifications, manufactured by Sigma Surgicals was used for fixation.  It is incorrect to say that 2^nd opposite party, upon pressure by 1^st opposite party had used an implant of inferior quality.  Surgical fixation of fracture was done with utmost care and caution.  All the skill and professional expertise of 2^nd opposite party was put into the procedure. This is evident from the fact that the implant remained intact for a long period of nine months and facilitated proper union of fracture.  Implant used for fracture fixation was made by a standard and certified company. 2^nd opposite party has not advised start walking after taking two months rest. During last review on 31/05/2016 also complainant was advised to continue physiotherapy exercises and partial load bearing with support. Alleged breaking of implant was probably due to early full weight bearing before complete union of fracture  without support against medical advice or due to traumatic causes.

 

It is incorrect to say that complainant was put to financial loss, mental agony and pain due to use of inferior quality implant.  Further contentions that complainant is still in a state of walking inability are baseless.  There was no deficiency in service from the part of 2^nd opposite party.  Contentions concerning complainant’s loss of employment resulting in loss of income are totally unfounded. Claim for compensation under nine heads and treatment expenses is excessive. There is no cause of action against 2^nd opposite party.  Complaint is experimental in nature and is to be dismissed with costs.

 

As mentioned earlier, Managing Administrator of the concern, “Osteo Plus Surgicals” has filed written version which compliments contentions of 2^nd opposite party and asserts that implant used was of standard quality with quality of 316L (low carbon).  Since the said institution had not been ordered to be impleaded as additional opposite party, we are not concerned with the contentions addressed by the said concern, shown to be represented by its Managing Partner. 

 

5. We had taken evidence in this case after affording sufficient opportunity to both sides to take steps.  On the side of complainant, PWs1 and 2 were examined and Ext.P1 to P5 were marked.  PW1 is the complainant herself and PW2 is the Orthopedist, who had treated complainant at Government Hospital, Adimali.  Upon application by complainant, treatment records relating to her were summoned from Head Quarters Hospital, Adimali.  Original records produced along with copies were returned and copy was marked as Ext.X1.  Administrator of 1^st opposite party hospital was examined as RW1.  No oral evidence was tendered by RW2.  Exts.R1 and R2 produced by him were marked without formal proof.  Both sides were then heard.  Now the points which arise for consideration are :

1)  Whether there was any deficiency in service on the part of opposite parties 1 and 2 ?                                                                                                         (cont….5)

 

- 5  -

2) Whether complainant is entitled for reimbursement of treatment charges undergone by her at 1^st opposite party hospital and thereafter in Govt. Hospital along with compensation prayed for ?

3)  Reliefs and costs ?

 

6.  Point Nos.1 and 2 are considered together :

 

          We have already adverted to the contentions advanced by the parties.  Opposite party No.3 shown as impleaded in cause title is opposite party No.2.  Manufacturer of the implant purported to be defective is not seen implanted.  As mentioned earlier, a written version filed by distributor of the manufacturer of defective implant is seen filed.  Since there is no formal impleadment of the distributor his written version does not merit any consideration.  However, we notice that 2^nd opposite party apart from contending that there was no negligence from his side in treating complainant, has also stated that the implant was of standard quality and not inferior as contended by complainant.

 

Upon analysis of pleadings and evidence tendered, it can be seen that contentions advanced with regard to deficiency in service is on the premises that steel disk/rod of inferior quality was implanted in 1^st opposite party hospital, by 2^nd opposite party, the treating doctor.   At this juncture, it would be apposite to refer to evidence tendered by complainant in this regard.  During cross examination, complainant has categorically admitted that when she had gone for review on 31.5.2016, nothing amice was noticed after taking X-ray.  She has also admitted that she had filed this complaint only against hospital and that it was not against the doctor who had treated her there.  When it was suggested that there was deficiency in service from the part of 2^nd opposite party, the witness would answer that she does not know about that.  These answers given by complainant would prove that there was no deficiency in service in the matter of treating the complainant from the side of PW2.  Therefore we do not think that the case of 2^nd opposite party will suffer any infirmity as he had not chosen to tender evidence.  It is also pertinent to note that 2^nd opposite party has specifically contended in his written version that on 12.4.2016, after review, complainant was advised gradual and guarded partial weight bearing with walker and static quadriceps exercises.  Thereafter on 31.5.2016, after 2^nd review, she was advised to continue physiotherapy exercises and only partial weight bearing with support.  2^nd opposite party has also pleaded that on 31.5.2016, he was relieved from the services of 1^st opposite party hospital and therefore had not continued follow up treatment.  Complainant has not pleaded or given evidence with regard to subsequent follow up treatment, if any done by her at the same hospital or at any other hospital as such.  Contentions raised by 2^nd opposite party with regard to advice given after both reviews are not seen denied in the proof affidavit filed by complainant.  During her cross examination, she was questioned with regard to pleadings raised in the complaint to the effect that she was advised to walk after taking                                                                                                              (cont….6)

• 6  -

2 months rest. PW1 would say that she does not know about this.  It is also clear from her evidence which we have discussed above that nothing was wrong with implant until the 2^nd review on 31.5.2016.  PW1 has also admitted that she used to walk to the toilet at her residence. There is no evidence to show  whether the toilet was inside the house or outside in the household compound.  Walking as such by herself is apparently against the advice given by 2^nd opposite party doctor during both reviews.  During later stages of cross examination, complainant had tried to levitate from the admission by stating that she had used walking stick for support. Evidence tendered above would probablise that PW1 has not correctly followed the procedure prescribed during two reviews regarding partial weight bearing and use of walker. 

 

          We also notice that an application was filed by PW2 seeking production of defective implant which was removed during 2^nd surgical procedure by PW2.  Complainant had filed objection stating that it was not given to her from the hospital where it was removed.  PW2 has explained this during his re-examination by stating that removed implants are not handed over to patients as it is against medical protocol.  Even if it be so, complainant could have taken steps to summon similar implants of same period as the brand name of implant was mentioned in the written statements filed by 1^st and 2^nd opposite parties. There was no attempt to prove that implant of the same brand manufactured or sold during the period when 1^st implant was done in the leg of PW1 had any similar defects as alleged by complainant.

 

          PW2 is the expert on which complainant relies to prove that there was defect in the implant.  From the evidence tendered by PW2, we find that there was a conscious attempt on his part to shield 2^nd opposite party in this case.  It would be relevant to examine the evidence tendered by him during initial phases of chief examination.  Though he would initially depose that he does not know whether the patient had come for corrective treatment and whether screw of the implant was removed subsequently, during later stages of chief examination, when confected with Exts.P4 and P5, PW2 admitted that he had surgically removed the earlier implant and placed a new one in its place.  He has also admitted that as per Ext.P5 case sheet maintained in 1^st opposite party hospital, screw of the implant was found to be removed.  During cross examination by 2^nd opposite party, he has admitted that nothing wrong was found with the implant, on 18.3.2016, 12.4.2016 and 31.5.2016.  That on all these 3 occasions, fracture was found to be uniting as per Ext.P5 case records.  When this evidence along with evidence of PW1 that nothing was wrong until 31.5.2016  is considered, case of complainant that implant used was of inferior quality becomes doubtful.  From the evidence of PW2, it is seen that a screw of implant was loosened, which was removed from the hospital of 1^st opposite party.  It is also proved that PW2 had performed the very same surgery and placed a new implant in place of the old one.  This will prove that the earlier implant had some defects which necessitated its change, subsequently.  As contended by complainant, it was replaced due to breakage.  However, there is no reliable evidence to                                                                                                       (cont…7)

• 7  -

prove that braking was due to the steel plate/rod implant was of inferior quality.  Complainant has not attributed any deficiency in the quality of implant due to loosing of its screw. She has also admitted that she had not brought this case against 2^nd opposite party and that her case is only against 1^st opposite party hospital.  There is no question of there being any negligence on the part of 2^nd opposite party.  What remains is the question whether the implant is of inferior quality or not.  In view of the discussion held above, we are of the view that this aspect has not been satisfactorily proved by complainant.  On the other hand, her evidence discloses a probability that she had not heeded medical advice given by 2^nd opposite party with regard to partial weight bearing and walking with support and walker.  This may have resulted in loosing of the screw and subsequent breakage of implant.  There is no deficiency on the side of 1^st opposite party either.

 

          For these reasons, we find that complainant has not proved that the implant used was of inferior quality.  Deficiency in service is also consequentially not proved.  Complainant is not entitled for reimbursement of treatment charges with regard to earlier implant done in 1^st opposite party hospital or for reimbursement of amount expended for implanting the 2^nd steel plate/rod and expenses connected with it.  She is also not entitled for any compensation for the alleged deficiency in service which had caused her pain and agony.  Point Nos.1 and 2 are answered accordingly. 

 

7.  Point No.3 :

 

          Considering the circumstances, we are of the view that the complaint is to be dismissed under the circumstances, without costs.  Therefore complaint is dismissed without costs.  Parties shall take back extra copies submitted, without delay.

                                                         

                        Pronounced by this Commission on this the  25^th  day of November, 2022

 

                                                                                                    Sd/-

  SRI. C. SURESHKUMAR, PRESIDENT

 

                              Sd/-

           SMT. ASAMOL P., MEMBER

 

                                    Sd/-

SRI. AMPADY K.S., MEMBER

 

 

                              (cont....8)

 

 

• 8  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Kochumol

PW2         -  Dr.Finix Baby

On the side of the Opposite Party :

RW1        -  SisterLincy.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of Bills and receipts issued from 1^st opposite party hospital.

Ext.P2      -  Copy of discharge card issued from T.H.Q. Hospital, Adimali.

Ext.P3      -  X-ray sheet.

Ext.P4      -  Certificate issued by Dr. Finix Baby, T.H.Q. Hospital, Adimali.

Ext.P5      -  Treatment records of complainant in 1^st opposite party hospital.

Ext.X1     -  Copy of in-patient case records of T.H.Q. Hospital, Adimali.

On the side of the Opposite Party :

Ext.R1     -  Copy of ISO Certificate of Sigma Surgical Pvt. Ltd.

Ext.R2     -   Copy of Distributorship agreement of Sigma Surgical Pvt. Ltd.

 

 

                                                                                          Forwarded by order,

 

 

                                                                                     ASSISTANT REGISTRAR