Tamil Nadu

South Chennai

51/2007

C.Kavitha - Complainant(s)

Versus

Apollo Hospitals - Opp.Party(s)

D.Sivagnanasammamtham

06 Feb 2018

ORDER

                                                                                                                           Date of Filing  : 22.12.2007

                                                                          Date of Order : 06.02.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

          DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

CC. NO.51 /2007

TUESDAY THE 6^th DAY OF FEBRUARY 2018

                                              

C. Kavitha,

D/o. Chellan,

No.4/3, Pillaiyar Koil Street,

West Mambalam,

Chennai 600 033.                                        .. Complainant

                                      ..Vs..

 

1. M/s. Apollo Hospitals Enterprises Ltd.,

No.21, Creams Lane,

Opp. Creams Road,

Chennai 600 006.      

 

2. M/s. Apollo Hospitals Enterprises Ltd.,

Rep. by its Managing Director,

No.21, Greams Lane,

Off. Greams Road,

Chennai 600 006.                                       ..  Opposite parties.

 

 

Counsel for complainant           :  M/s. T.Sivagnanasambandan  

Counsel for opposite parties   :  M/s. S.Chandrasekharan      

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.1,15,234.60/- towards medical expenses and also to pay a sum of Rs.7,00,000/- as compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that  on 6.11.2005 she met with a road traffic accident due to a hit by  Auto sustained injury of fracture to the right arm.    Immediately the complainant was taken to the opposite party hospital and was admitted as inpatient.  Further the complainant state that since  she  sustained injury on her right hand and body,  the opposite party suggested immediate operation and due operation also held.   Implant also affixed.  The complainant was discharged from the hospital on 11.11.2005.      Further the complainant state that she paid a sum of Rs.1,16,234.60 towards medical expense.  Further the complainant state that  the time of review by the opposite party initially stated that there are better healings on the right hand of the complainant.   After taking x-ray the opposite party stated that the implant was broken resulting the failure of 1^st operation requires another one operation for that the complainant has to pay the medical expenses of Rs.1,16,234.60/-.  As such the act of the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  

2. The brief averments in the written version filed by the  opposite parties are as follows:

The  opposite parties deny each and every allegations except those that are specifically admitted herein.  The opposite parties state that  the complainant came with multiple injury, right arm fracture in a road traffic accident hit by an Auto was admitted and was examined by Dr.Madhan Mohan Reddy who diagnosed Supra Condylar fracture of right Humerus with Vascular injury.   Dr. V. Balaji, Vascular Surgeon also saw the complainant.   The complainant had Right Brachial Artery repair with vein graft and Open Reduction and Internal Fixation with plate Osteo Synthesis Right Supra Condylar Distal humerus and fasciotomy on the same date on an emergency basis.   The operation was successful and the complainant was discharged on 11.11.2005.  But the opposite parties has not explained the necessity of such surgery on emergency basis.  Further the  opposite party state that the complainant was advised to come for review on 19.11.2005 by that time the wound had a better healing.  Thereafter the complainant came to the opposite party hospital on 9.5.2006 with complaints of swelling and pain in the right elbow and x-ray revealed that there is breakage of implant and complainant had undergo reosteo synthesis and grafting.    The reason for the 2^nd operation was only due to the breakage of implant which may caused due to a fall or overstrained against the medical advised of rest.  Further the opposite party state that the implant used during the surgery was a standard one and recommended by an international reputed company (synthes) which has US-FDA approval.   Further the opposite parties state that the complainant did not examined any expert to prove the negligence of Dr. Madhan Mohan Reddy.  Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.6 marked.  Proof affidavit of the opposite party filed and Ex.B1 to Ex.B28  marked on the side of the  opposite party.

4.      The points for consideration is :

1. Whether the complainant is entitled  to recover a sum of Rs.1,16,234.60  paid towards medical expenses as prayed for?
2. Whether the complainant is entitled to a sum of Rs.7,00,000/- towards compensation for mental agony with cost as prayed for?

5.   POINTS 1 & 2:

         Both parties filed their respective written arguments.  Heard the opposite party also.   Perused the records (viz.) complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that on 6.11.2005 the complainant met with a road traffic accident, due to a hit by  an Auto; sustained grevious injury of fracture to the right arm.    Immediately the complainant was taken to the opposite party hospital and was admitted as inpatient.   But on a careful perusal of Ex.A1 filed by the complainant reveals that the complainant was taken to Sundaram Medical Foundation wherein some investigations were held and thereafter came to the opposite party hospital.  Further the complainant contended that since the complainant sustained grievous injury on her right hand and body;  the opposite party suggested immediate operation and due operation also held.   Implant also affixed.  The complainant was discharged from the hospital on 11.11.2005  as per Ex.B27.   Ex.B1 is the Patient registration  Form.   Ex.B2 is admission as emergency patient.    Ex.B5 is the Accident register preferred by the opposite party.   Further the contention of the complainant is that  the complainant has paid a sum of Rs.1,16,234.60 towards medical expense under different heads as per Ex.A2.  Further the contention of the complainant is that at the time of review by the opposite party initially stated that there are better healings on the right hand of the complainant.   After taking x-ray the opposite party stated that the implant was broken resulting the failure of 1^st operation; requires another one operation; for that the complainant has to pay another medical expenses equal to the sum.   Further the contention of the complainant is that since there is no proper healing of the wound and the fracture of the implant is proves the deficiency in service of the opposite party. The opposite party has not  pleaded and proved the reason for breakage of implant leading another surgery.  

6.     The opposite party contended that admittedly the complainant came with multiple injury,(viz) right arm fracture in a road traffic accident hit by an Auto  was examined by Dr.Madhan Mohan Reddy; who diagnosed Supra Condylar fracture of right Humerus with Vascular injury.   Dr. V. Balaji, Vascular Surgeon also saw the complainant.   The complainant had Right Brachial Artery repair with vein graft and Open Reduction and Internal Fixation with plate Osteo Synthesis Right Supra Condylar Distal humerus and fasciotomy done on the same date on an emergency basis.    The operation was successful and the complainant was discharged on 11.11.2005.  Ex.A27 is the discharge summary.   But the opposite party has not explained thereafter for such surgery on emergency basis conducted without ruling out the administration of POB and Kwire.   Further the contention of the opposite party is that the complainant was advised to come for review on 19.11.2005 by that time the wound had a better healing.  Thereafter the complainant came to the opposite party hospital on 9.5.2006 with complaints of swelling and pain in the right elbow. X-ray revealed that there is a breakage of implant and complainant has to undergo reosteo synthesis and grafting.    The reason for the 2^nd operation was only due to the breakage of implant which may cause only due to a fall or overstrained against the medical advice of rest.  But on a careful perusal of the records it is seen that there is no fracture or dislocation of the joint except the breakage of implant.   Further the contention of the opposite party is that the implant used in the surgery was  a standard one and recommended by  international reputed company (synthes) whichhas US-FDA approval.  But there is no record.  Further the opposite party contended that the complainant did not examined any expert to prove the negligence of Dr. Madhan Mohan Reddy.  Mere filing proof affidavit of Dr. T.M. Perumal S/o. Thirumalaipillai is not sufficient to prove the negligence. Much less medical negligence.  

7.    The learned counsel cited a decision reported in

(2010) 15 Supreme Court Cases 193

SENTHIL SCAN CENTE

..Vs..

SHANTHI SRIDHARAN AND ANOTHER

 

Held that

 

Consumer Protection – Services – Medical services – Medical negligence -  Negligence in diagnosis – Matters to be established – Need for expert opinion – Ultrasound diagnosis – Pre-natal diagnosis to defect deformities – Appellant Centre failed to detect deformity with which respondent gave birth to her child – State Commission awarded compensation, holding that there was deficiency in service – National Commission upheld the same, holding the foetus had only a stump below elbow without any forearm and such obvious anomaly should not have escaped scrutiny of a specialist who is expected to observe scan carefully – Held, ultrasound is not a perfect depiction of foetus and scan result cannot be 100% conclusive – It is often difficult to examine some foetal areas for several reasons – There is ample scope for genuine difference of opinion – One man clearly is not negligence merely because  his conclusion differs from that of other professional men – State Commission and National Commission erred in holding that there was deficiency in service – Claimant had not placed any material on record in support of her case that deformity could have been sighted between 2^nd and 3^rd trimester – No expert evidence available to controvert case of appellant Centre that doctor who conducted ultrasound was highly qualified and that ultrasound was done with due care and diligence –No evidence to show that failure to defect deformity was out of any negligence on part of doctor conducting ultrasound – Evidence Act, 1872 – S.45 – Consumer Protection Act, 1986 Ss.2(1) (o ) & (g)

 

Leave granted.  This appeal arises out of an order dated 12.1.2009 passed by the National Consumer Disputes Redressal Commission.  The facts giving rise to the impugned judgment have been set out in the order passed by the National Commission.  We therefore need not repeat the same over again.

 

The apart the Commissions overlooked the view taken by this court in Vinitha Ashok .v. Lakshmi Hospital and State of Punjab .v. Shiv Ram wherein this court has held that proof of negligence must satisfy Bolam test.  The said test was summarized in Eckersley v. Binnie in the following words:

 

From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent  members of his profession in the knowledge of new advances, discoveries and developments in his field.   He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill.  He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinary competent members of the profession would be alert.   He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more.   The standard is that of the reasonable average.   The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet.”

Considering the facts and circumstances of the case this forum is of the considered view that the  opposite parties shall pay a sum of Rs.1,16,234 with interest at the rate of 9% p.a. from the date of complaint i.e. 22.12.2007 to till the date of this order i.e. 6.2.2018  and also shall pay compensation of Rs.25,000/-  for mental agony with cost of Rs.5000/- and the points are answered accordingly.

In the result the complaint is allowed in part.  The  opposite parties shall pay a sum of Rs.1,16,234/-(Rupees one lakh sixteen thousand two hundred and thirty four only)  toward medical expenses with interest at the rate of 9% p.a. from the date of complaint i.e. 22.12.2007 to till the date of this order i.e. 6.2.2018  and also shall pay compensation of Rs.25,000/- (Rupees twenty five thousand only)  for mental agony with cost of Rs.5000/- (Rupees five thousand only) to the complainant.

The above  amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 6^th  day of February 2018. 

MEMBER –I                            MEMBER-II                              PRESIDENT.

COMPLAINANT SIDE DOCUMENTS:

Ex.A1- 6.11.2015 - Copy of medical bills.

Ex.A2- 11.5.2006 - Copy of X-ray report.

Ex.A3- 25.5.2006 - Copy of Legal notice.

Ex.A4- 29.6.2006 - Copy of reply notice.

Ex.A5- 10.6.2006 - Copy of discharge summary.

Ex.A6-             - Copy of proof affidavit.

OPPOSITE  PARTIES SIDE DOCUMENTS:

Ex.B1-                - Copy of Patient Registration Form.

Ex.B2-                - Copy of Admission Through emergency.

Ex.B3-               - Copy of Admission Form.

Ex.B4-               - Copy of Admission Through emergency.

Ex.B5-                - Copy of Accident injury report.

Ex.B6-                - Copy of OP Diagnosis & Recommendations.

Ex.B7-                - Copy of Initial Patient Assessment record.

Ex.B8-         -        - Copy of IP consultation request.

Ex.B9-                - Copy of OP follow up sheet.

Ex.B10-       -        - Copy of Case Sheet.

Ex.B11         -        - Copy of Pre operative checklist.

Ex.B12-       -        - Copy of Consent  for Anesthesia

Ex.B13-             - Copy of consent for surgery.

Ex.B14-              - Copy of progress report.

Ex.B15-              - Copy of Doctors order sheet.

Ex.B16-              - Copy of Department  of Anesthesiology.

Ex.B17-              - Copy of Operation Notes.

Ex.B18-            - Copy of Post Operative Recovery Chart.

Ex.B19-             -  Copy of Non- Drug / Drug Chart.

Ex.B20-               - Copy of Clinical Chart.

Ex.B21-              - Copy of Nurses Chart.

Ex.B22-              - Copy of Flow chart.

Ex.B23-              - Copy of Nursing Care plan.

Ex.B24-              - Copy of Doctors rounds /Investigations Charts.

Ex.B25-              - Copy of Care Team rounds.

Ex.B26-              - Copy of investigation reports.

Ex.B27-              - Copy of Admission /discharge checklist.

Ex.B28-              - Copy of discharge summary.

 

MEMBER –I                            MEMBER-II                              PRESIDENT.