Tamil Nadu

North Chennai

CC/47/2015

M.Thangaraj, S/o.Muthusami - Complainant(s)

Versus

Appasamy Hospitals, Rep by its Managing Director, - Opp.Party(s)

K.P.C.Mohan

14 Jun 2016

ORDER

                                                             Complaint presented on:  02.03.2015

                                                                Order pronounced on:  14.06.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

TUESDAY THE 14^th   DAY OF JUNE 2016

 

C.C.NO.47/2015

 

M.Thangaraj,

S/o.Muthusami,

Aged 47 years,

No.9, Palayam Street,

Aminjikarai,

Chennai –  600 029.

                                                                                            ..... Complainant

 

..Vs..

	1.Appasamy Hospitals, Represented by Managing Director, No.23, Friends Avenue, Arumbakkam, Chennai – 106.     No.61, 7th Avenue, Ashok Nagar, Chennai – 83.
	.....Opposite Parties

Date of complaint                                  17.03.2015

Counsel for Complainant                      :K.P.C.Mohan

Counsel for 1^st opposite party                  : Ex – parte

Counsel for 2^nd opposite Party                      : M/s. V.Balaji & A.Sermaraj

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant has suffered with abdominal pain and fever and he approached the 1^st Opposite Party hospital on 28.01.2013 for treatment and consulted the Doctor/ 2^nd Opposite Party who is specialized with the said treatment and he advised that there is urinary stone problem and a surgery has to be conducted. After conducting various diagnosis and he was admitted in the 1^st Opposite Party Hospital on 04.02.2013 and the 2^nd Opposite Party has conducted the surgery on the same day and discharged on 06.02.2013 by prescribing  certain medicines to him. Subsequent to the surgery, the Complainant was suffering with pain and immediately consulted the 2^nd Opposite Party and in turn he advised the Complainant that in the post surgery period it is usual to have a pain for some time and by taking more fluids, pain will be reduced in the course of time. On 09.01.2015, the Complainant again suffered severe abdominal pain and having temperature while passing urine. In this connection, the Complainant consulted physician an x-ray was taken on the advice of the physician, it was noticed that a fractured stent is found partially in the left kidney and urinary bladder. The said stent was used at the time of performing L-URS surgery by the 2^nd Opposite Party and the same has been misplaced due to the negligent act of him.

2. The 2^nd Opposite Party has suppressed the fact that stent got fractured during the surgery and has been misplaced between the kidney and urinary bladder.  This fact was brought to the 2nd opposite Party’s knowledge on 10.01.2015 and on his reference a MRI Scan was done at Gemini Scans at Chennai and the scan report also establishes the same fact. The fractured stent has caused adverse consequences on the health of the Complainant and put inconvenience and mental agony. If the 2^nd Opposite Party has taken an X ray of post surgery, the fractured stent would have certainly come to light. Therefore the Opposite Parties have committed Deficiency in Service while conducting surgery on the Complainant and thereby he was compelled to undergo another surgery for removal of the stent. Hence the Complainant filed this Complaint for claiming compensation and hospital expenses with cost of the Complaint.

3. WRITTEN VERSION OF THE  2^nd OPPOSITE PARTY IN BRIEF:

          The Complainant was discharged on 06.02.2003 from the 1^st Opposite Party hospital and hence the Complaint ought to have been filed within a period of 2 years i.e., on or before 05.02.2015 but the Complaint is filed nearly after 24 days on 02.03.2015. Hence the Complaint is barred by limitation. The Complainant did not come for review after his discharge and hence no deficiency can be attributed against the Doctor. On 28.01.2013, the Complainant approached the 2^nd Opposite Party for pain left loin radiating to the left groin for 1 month duration. The Complainant had history of similar episode 7 years previously and he was also alcoholic. The 2^nd Opposite Party after considering all the pros and cons and after obtaining the consent of the Complainant, he had done surgery on the Lithotripsy method. A black stone in the upper ureter was broken with lithoclast into small particles. A bit went inside the kidney, DJ stenting to be removed after stone clearance.

4. The said DJ stent fixed to the Complainant is a soft flexible tube and if it is kept for a prolonged period, calcium deposit (from urine) forms on it, making it stiff and degenerated. This results in fragmentation. The second Opposite Party has not left a broken DJ stent during his surgery. The 2^nd Opposite Party received a call from one Dr.Sudha on 10.01.2015 that one of his patient Complains about the fractured stent. Over the phone he informed the said doctor to take CT scan at Gemini Scans. Accordingly the scan was taken on 11.01.2015. The scan report never revealed the cause for fracture of stent. It is because of long duration, the stent became classified and nowhere in the Complaint he has stated that the fractured stent was removed. The 2^nd opposite Party is practicing urology for the past 17 years. This Opposite Party has not committed any Deficiency in Service and therefore this Complaint is liable to be  dismissed.

5. POINTS FOR CONSIDERATION:

          1. Whether the complaint is barred by limitation?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what relief?

6. POINT NO :1

          It is an admitted fact that the Complainant went to the 1^st opposite Party hospital for abdominal pain on 28.01.2013 and consulted with the 2^nd opposite Party Doctor who issued Ex.A1 prescription after checking the Complainant and suggested that urinary stone to be removed and thereafter the Complainant was admitted in the 1^st opposite Party’s hospital on 04.02.2013 and the 2^nd opposite Party Doctor conducted surgery on the same day by removing the stone and thereafter he was discharged on 06.02.2013 and at that time Ex.A7 provisional discharge summary was issued to the Complainant.

        7. While so, the 2^nd Opposite Party contended that after discharge from the hospital from that date within two years, the complainant ought to have filed this complaint but the case in hand, the complainant filed the complaint only on 2.3.2015 nearly after 24 days without filing any petition to condone the said delay and thereby the complaint is barred by limitation and hence the complaint is liable to be dismissed. In order to support his contention, the 2^nd Opposite Party   relied on the judgment of the Supreme Court reported in  IV (2010) CPJ 27 (SC) (V.N. SHRIKHANDE (DR) Vs ANITA SENA FERNANDES). There is no dispute that the complainant was discharged from the hospital on 6.2.2013 and the limitation also prescribed for filing the complaint is of two years. The complainant averred in the complaint that he had pain on 9.1.2015 and therefore the MRI scan was taken on 10.01.2015 at Gemini Scan Centre.   According to the complainant, as per Ex.A.4 and Ex.A.5, the fragments of stent seen in those reports, such fragment of stent was negligently left by the doctor at the time of surgery. Hence  the 2^nd opposite party’s defect came to the knowledge of the complainant only after seeing such a report and therefore as per the plea taken  by the complainant, the defect of the surgery came to the knowledge of the complainant as per scan report on 10.1.2015 is acceptable.

     8.  The counsel for the opposite party relied on para 18 of the Supreme Court judgment above referred is extracted below for better appreciation.

“In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative – complainant discovers the harm/injury caused due to such act or the date when the patient or his representative – complainant could have, by exercise of reasonable diligence discovered the act constituting negligence”

In the above para, the Supreme Court held that there is no straitjacket formula to determine or to ascertain the cause of action and further the cause of action will arise on the date when the patient or his representative of the complainant discovers the harm caused to him. In the case in hand, according to the complainant, the harm was caused to him during surgery came to the knowledge of the complainant only on 10.1.2015, after seeing the MRI scan report. Such a knowledge was very well within the limitation period and therefore as per the above ratio of the judgment of the Supreme Court, we hold that 10.1.2015 gives fresh cause of action to this complainant and from such date the complainant has filed this complaint is within the limitation period and therefore the contention of the opposite party is that the complaint has no cause of action and barred by limitation is not sustainable.

9. POINT NO : 2

       According to the complainant that at the time of conducting the surgery, the 2^nd opposite party /Doctor committed deficiencies that he had left the fractured stent and such a stent caused unbearable pain and for removal of fractured stent placed in left kidney and Urinary bladder, the complainant moved City Tower Hospital in Anna Nagar, Chennai and he sent Ex.A.9 notice after undergoing such surgery,  to the opposite parties and the photographs of the fractured stent was marked as Ex.A.10. It is  further stated that the 2^nd opposite party had not given any specific advice for review about the stent in the discharge summary and these deficiencies committed by the 2^nd opposite party in the course of conducting surgery and while giving advice for review.

        10.  It is not in dispute that at the time of surgery, the 2^nd opposite party doctor fixed stent in the left kidney and urinary bladder and the doctor also in his Ex.A.3, Provisional discharge summary, categorically stated that review on Thursday in medical OPD on morning. However, as per such advice, the complainant did not go for review of the following date of discharge. The complainant relied on Ex.A.4 X-ray report, Ex.A.5 MRI scan report, which the fractured stent was left by the Doctor at the time of conducting surgery.  Ex.A.4 is not a X-ray report, it is only a scan report for Abdomen and KUB Scan report and Ex.A.5 is the MRI scan report. In Ex.A.4, the impression mentioned in the report as follows:-

IMPRESSION:-

“Left renal calculus with hydroureteronephrosis? due to vesico ureteric reflex segments of DJ sent seen in the left collecting system and urinary bladder Rest of solid abdominal organs are normal”

 IN EX.A.5, THE IMPRESSION OF STENT MENTIONED AS FOLLOWS:-

 IMPRESSION:-

“Ureteric stent in situ on left side. Fracture of the stent is visualized at the junction of upper third and lower 2/3rds. Upper end of the fractured stent is visualized in pelvivalyceal system of left kidney. Lower end of the stent is visualised in lower ureter and urinary bladder”

The above two reports reveals that the stent was available in between the left kidney and urinary bladder. However the reports do not reveal that fragments of the stent was seen in the kidney or in the urinary bladder. Further after surgery nearly for one year and 11 months, the complainant without any problem carried on normal activities on  his day to day life and there is no record available that after surgery till 9.1.2000, he went to the 2^nd opposite party and made any complaint that he had pain in the abdomen. Further this type of cases, it is essential for the complainant to examine a Doctor and prove through medical evidence that the fragments of stent was left by the 2^nd opposite party doctor at the time of conducting surgery. In our view Ex.A.4 and A.5 do not show that any fragment of stent was left by the 2^nd opposite party during surgery of the complainant.

            11. The complainant specifically contended that after taking Ex.A.5, the complainant admitted in the City Tower Hospital on 21.1.2015 and discharged on 24.1.2015 as per Ex.A.7, discharge summary issued by the City Tower Hospital. In the City Tower Hospital, they diagnosed the disease as “Left Lower Calyx Calculus” which  means that the patient has been admitted only for the removal of the stone. The procedure done to the complainant is PCNL (Percutaneous Nephro Lithotomy).  This is one of the procedures for treating urinary stone disease. Therefore Ex.A.7, report issued by the City Tower hospital clearly reveals that the complainant was admitted only for removal of stone and the same was removed by using grasper and thereafter the left system was fixed with DJ stent. On the whole the surgery in the City Tower hospital was done only to remove the stone and the DJ stent was placed in the left system. Nowhere in the report in Ex.A.7, has it been stated that as contended by the complainant a fragmented stent was removed from the complainant on 21.1.2015 when the surgery was conducted at the City Tower Hospital.    

           12.  The 2^nd opposite party categorically pleaded in his written version that DJ stent is a  soft flexible and if it is kept in a prolonged period calcium deposit forms on it, making it stiff and de-generated and this results in fragmentation and the 2^nd opposite party have not left the broken DJ stent during his surgery. The above version of the 2^nd opposite party was not denied by the complainant in his evidence.  Further there is no medical evidence forth coming on behalf of the complainant to deny the above version of the opposite parties. Moreover, absolutely there is no evidence or medical evidence to support the case of the complainant to accept that the fractured stent was left by the 2^nd opposite party/ doctor at the time of conducting surgery.

         13. The 2^nd opposite party further contended that the complainant has not come for review and therefore he has not committed any deficiency in service. In Ex.A.3, Provisional discharge summary, it has been clearly stated that review on Thursday morning in medical OPD and further in Ex.B.2 discharge summary, it has been stated that the review with 2^nd opposite party doctor. Admittedly, the complainant did not go for review as advised in the discharge summary. The complainant contended that the advise for review given in Ex.A.3 is not enough and they should have clearly stated that the patient should have come for removal of stent and further in this he relied upon the decision of the National Commission held in III (2009) CPJ 107(NC) (V.KRISHNAKUMAR Vs. STATE OF TAMILNADU & ORS.) that clear warning should be given in the discharge summary about what kind of treatment would be given in the review.  No doubt as relied on by the complainant the National Commission held that it has to be clearly stated in the discharge summary. The case relied upon by the Complainant is in respect of the birth of a pre-mature baby. In the case of premature baby the complication to be inherent risk can be pre-determined by the medical practitioner. The Hon’ble National Commission considering those aspects had only given finding that the failure in writing the inherent risk in discharge summary amounts to Deficiency in Service. Hence in the case in hand there is no such inherent risk can be predetermined. Moreover the Complainant has not tendered himself for review and hence the above citation is not applicable to the facts of the case in hand.

14. As we discussed above, there is no proof or medical evidence is available to accept that the 2^nd opposite party doctor left fragmented stent at the time of conducting surgery as alleged in the Complaint. Even in the discharge summary issued by the City Tower Hospital, nowhere it has been stated that the stent was removed by them as alleged by the Complainant. Therefore in these circumstances, the above judgments of the National Commission do not apply to the facts of the case in hand. Hence considering the above facts and observation made above, it is crystal clear that the complainant has not proved that the 2^nd opposite party doctor had left the fragmented stent in the body of the complainant at the time of conducting surgery in the 1^st Opposite Party’s hospital on 4.2.2013 and the same was removed from the body of the Complainant subsequently when he undergone the surgery in the City Tower hospital. Therefore we hold that the 1^st and 2^nd opposite parties have not committed any deficiency in service while conducting the surgery on 4.2.2013 to the complainant.

15. POINT NO:3

       Since the opposite parties 1 and 2 have not committed any deficiency in service, the complainant is not entitled for any relief as prayed and hence the complaint is liable to be dismissed.

In the result, the complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 14^th day of June 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 28.01.2013	Prescription of Dr.Govindarajan

Ex.A2 dated 05.02.2013                   Bills of Appasamy Hospitals

Ex.A3 dated 06.02.2013                   Discharge summary

Ex.A4 dated 10.01.2015                   X-ray and report showing fracture stant

Ex.A5 dated 10.01.2015                   MRI Scan report of Gemini Scan

Ex.A6 dated 12.01.2015                   Prescription of City Tower Hospitals

Ex.A7 dated 21.01.2015                   Discharge summary of city Tower Hospitals

Ex.A8 dated 21.01.2015                   Medical bills of City Tower Hospitals

Ex.A9 dated 04.02.2015                   Legal notice sent to the Opposite Party/Reply

                                                notice received

Ex.A10 dated NIL                             Photos of fractured stant

 

 

 

 

 

 

LIST OF DOCUMENTS FILED BY THE 2^nd  OPPOSITE PARTY:

Ex.B1 dated NIL                     Case Sheet

Ex.B2 dated 05.02.2013                   Discharge Summary

Ex.B3 dated NIL                     Reply notice

 

 

 

MEMBER – II                                                               PRESIDENT