Tamil Nadu

South Chennai

CC/58/2014

M/s.Alagappan - Complainant(s)

Versus

Appollo Hospital - Opp.Party(s)

A.P.Sathya Murthy

19 Oct 2022

ORDER

Date of Complaint Filed : 29.01.2014

Date of Reservation      : 19.09.2022

                                                                                Date of Order              : 19.10.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No.58 /2014

WEDNESDAY, THE 19^th DAY OF OCTOBER 2022

Alagappan, M / Aged 55,

S/o.Appavu,

11A-Block Police Quarters,

Naidu Street,

Kottur, Chennai - 600 085.                                               ... Complainant                         

..Vs..

1.The Managing Director,

   Appollo Hospital,

   21, Greams Lane,

   Off. Greams Road,

   Chennai-6.

 

2.Dr.P. Balaji, MS DNB FICS FAMS IAGES,

   Department of General Surgery,

   Appollo Hospital,

   21, Greams Lane,

   Off. Greams Road,

   Chennai-6.                                                               ...  Opposite Parties

 

******

Counsel for the Complainant               : M/s. A.P. Sathyamurthy

Counsel for the 1^st Opposite Party        : M/s. C. Manishankar

Counsel for the 2^nd Opposite Party       : M/s. B. Vijayakumar

 

        On perusal of records and after having treated the Written Arguments of the Complainant as oral arguments of the Complainant, we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the 1^st and 2^nd Opposite Parties to return back the Medical Bill of Rs.1,81,871/- for deficiency of service and negligence and to pay a sum of Rs.3,00,000/- for mental agony pain and financial loss suffered by the Complainant and  to pay Rs.1,00,000/- for food, medicine and transportation charges.

2.     The averments of Complaint in brief are as follows:-

          The Complainant was working as a Sub-Inspector of Police at Sastri Nagar Police Station, Chennai. As he was suffering from inguinal Hernea, on 05.10.2012 he visited the 1^st Opposite Party Hospital for treatment and he was referred to the 2^nd Opposite Party who is an expert in that field. The 2^nd Opposite Party after examination of the Complainant opined that the Complainant is suffering due to Inguinal Hernia on right and left side and advised him to undergo surgery. The Complainant had deposited the amounts as sought for by the Opposite Parties. The surgery was fixed on 12.10.2012 and before going to the Operation theatre the complainant was informed that he was having left and right Inguinal  Hernia  and  the Operation would be done on the same day on both side, which was agreed by the Complainant. After the operation on 12.10.2012 the 2^nd Opposite Party informed the Complainant that operation was done only on the right side. The Complainant has totally paid a sum of Rs.181,889.81 for the surgery. On 16.10.2012 the Complainant got discharged from the Hospital on advice of the 2^nd Opposite Party to take complete bed rest for two weeks and to use pressor sticker on the operated side. The Complainant followed the advice of the 2^nd Opposite Party due to which he had severe pain on both side of stomach below. Though the 2^nd Opposite Party gave assurance that the Complainant can go for work after two weeks of surgery, the Complainant was suffering due to heavy pain, hence consulted the 2^nd Opposite Party he gave a shocking news that the Complainant have to undergo another minor surgery to cure hernia problem, due to which the Complainant has suffered physically, mentally and financially. The 2^nd Opposite Party was informed that the surgery was done on him was failure and to rectify that he has to under go another surgery. Before the operation the 2^nd Opposite Party had not clinically examined the Complainant and no thorough check-up was done to determine the nature of Inguinal Hernia and without proper evaluation the surgery was done by the 2^nd Opposite Party which ended in failure. When the Complainant had hernia on both sides the Opposite Party had done surgery only for right side and neglected to operate on the left side. The scan report dated 20.02.2003 reveals that he is having moderate right and indirect hernia and small left indirect inguinal hernia due to which the Complainant is suffering from heavy pain. The act of the Opposite Parties in not diagnosing the actual problem of the Complainant and not giving proper treatment in spite of charging heavy medical bills amount to negligence and illegal trade practice. The Complainant issued legal notice dated 28.03.2013 to the Opposite Party for which there was no response. Hence the complaint.

3. Written Version filed by the 1^st Opposite Party in brief is as follows:-

        The 1^st Opposite Party adopts written version filed by the 2^nd Opposite Party in respect of the treatment given by him to the Complainant. The Opposite Party denies the allegation that they are charging exhorbitant rate and stated that charges were collected only in respect of the treatment given and the surgery performed. The Complainant was covered under insurance scheme which reimbursed the cost for which the complainant was found eligible. The Complainant is only interested in extracting money from the Opposite Party without any basis with ulterior motives. In any event the sum collected was as per the prescribed fees/charges and after prior intimation to the Complainant. The entire complaint proceeds on the basis of conjectures and surmises without an iota of evidence. The amount claimed by the Complainant is not only arbitrary but also fanciful. The Complainant has not disclosed any cause of action to file this complaint against the Opposite Party. When there was no negligence or deficiency in service the question of paying damages does not arise. Hence prayed to dismiss the complaint.

4. Written Version filed by the 2^nd  Opposite Party in brief is as follows:-

        The Complainant was first clinically examined by Dr.Ramanakumar, Associate of 2^nd Opposite Party in the outpatient department on 05.10.2012 who diagnosed him as having right inguinal hernia with cough impulse on the left side. Subsequently, the Complainant was examined by the 2^nd Opposite Party and found to have only right side inguinal hernia and there was no obvious hernia clinically on the left side. Therefore, there is no question of surgery to be done on the left side. Regarding the pain of operation and inability to lift weight as Complained by the Complainant, the 2^nd Opposite Party submitted that pain is a common problem following any surgery and after hernia surgery, it is universally recommend not to lift weight for next 4 to 6 weeks. The Complainant was advised not to lift heavy weight to prevent further weakening of the inguinal area thereby reducing the chances of recurrence of the disease. The Complainant was adviced to apply compression dressing (presser sticker) over the operator side to prevent the formation of fluid collection in the operation site which is an expected complication following hernia repair. After 3 weeks the Complainant was having minimal fluid collection in the operative site and advised regular follow ups. The 2^nd Opposite Party has not forced him to under go any 2^nd surgery immediately. The Complainant took a CT Scan on 12.11.2012 which showed only fluid collection in the operative site and no hernia on the right inguinal region – operative site. Almost after 3 1/2 months of the surgery, on 28.02.2013 the Complainant had taken a scan. The Complainant was advice to come for periodical review for which the Complainant failed to do so. If the Complaint  had come for review the 2^nd Opposite Party would have assessed clinically. The 2^nd Opposite Party is not liable for any medical negligence. Hence the complaint is to be dismissed.

5. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-11 The 2^nd Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd Opposite Party, documents were marked as  Ex.B-1 to Ex.B-23 were marked. The Proof Affidavit of 1^st Opposite Party was closed.

Points for Consideration

1. Whether there is medical negligence committed by the Opposite Parties as against the complainant? 
2. Whether there is any deficiency in service on the part of the Opposite Parties?
3. Whether the Complainant is entitled to get compensation as claimed in the complaint?
4. To what other relief, the Complainant is entitled?

Point Nos.1 and 2:-

The Complainant had visited the 1^st Opposite Party for treatment of Inguinal Hernea, who directed to approach the 2^nd Opposite party. The 2^nd Opposite Party on examination opined that the Complainant is having inguinal hernia on both right and left side. According to the advise of the 2^nd Opposite Party the Complainant got admitted in the 1^st Opposite Party hospital on 08.10.2012.  The contention of the Complainant was that before entering the operation theatre on 12.10.2012 he was informed that they are going to operate on both sides, but after completion of the operation that he was told that he had hernea only on the right side and so operation was done for the right side and not on the left side. The Complainant got discharged on 16.10.2012 with advice to take rest for 2 weeks. Evenafter 2 weeks the Complainant was not able to do anything and pain increased. When contacted the 2^nd Opposite Party he informed to undergo another minor surgery at Padmapriya Hospital, at that time the Complainant realised that the operation was total failure.

The 1^st Opposite Party has not proved their case by filing Proof Affidavit. The 2^nd Opposite Party had contented that the Complainant was examined and found to have right side indirect inguinal hernia, which according to the Complainant was present for the last 2 years and only minimal cough impulse with mild weakness on the left side and there was no obvious evidence of hernia clinically on the left side. At the time of evaluation there was no hernia on the left side and that no surgery was done on the left side. The 2^nd Opposite Party submitted that pain after operation is a common problem after surgery. The Complainant was advised to  not to lift weight for 4 to 6 weeks and to apply compression dressing over the operated site to prevent the formation of fluid collection (Seroma) in the operated site. As regards the allegation of the Complainant that he was informed that he had inguinal hernia on both sides, however the 2^nd Opposite Party has performed surgery only on the right side, the 2^nd Opposite Party had submitted that on examination there was no obvious evidence of  hernia clinically on the left side and that the Complainant had only right side indirect inguinal hernia for which surgery was performed on 12.10.2012. In the Discharge Summary, Ex.A-1, the Complainant was diagnosed as Right Indirect Inguinal Hernia. The CT Whole Abdomen Scan Report dated 12.11.2012, Ex.A-6 which was taken at Fortis Malar Hospital, one month after surgery show the finding as “Post-operative study with seroma at the operated site.”, which is not a failure of the operation but an expected complication after hernia repair. There was no finding of left inguinal hernia or recurrence of hernia on the right inguinal region.

The Complainant had taken a scan on 28.02.2013 at Saravana Scans, which is after 3 months of surgery reveal “Moderate right indirect inguinal hernia seen containing ileal loop and omentum Small left indirect inguinal hernia seen containing omentum”. As submitted by the 2^nd Opposite Party  the Complainant was advised for periodical review which the Complainant never did and if he had gone for the review the 2^nd Opposite Party would have advised accordingly.

The scan taken by the Complainant on 12.11.2012 one month after the surgery did not show any recurrence of hernia on the right side and no evidence of hernia on the left side. The 2^nd Opposite Party had produced Medical literature to show that recurrence of inguinal hernia is multi factorial which is problem of biology and collagen. The incidence of recurrent hernia after primary repair varies from 1% to 30%. The Hernia Journal August 2011 show that in patients having a unilateral repair with a negative contralateral exploration and no previous contralateral hernia repair, hernias develop on the previously healthy side. Inguinal hernia can be bilateral and there is 2% yearly risk of a person developing hernia in the opposite side. Medical Literature also show that when a patient develops an inguinal hernia he is at increased risk to developing an additional hernia on the Opposite side or a recurrence in the same side.

The  allegation that the Complainant initially had inguinal hernia on both sides and that the Opposite Parties failed to performed surgery on the left side is not proved by the Complainant. Moreover, the Opposite Parties had produced Medical Literature from Journal to show the possibility of  recurrence of hernia and bilateral development of hernia.  The Complainant has not established that the Opposite Parties were negligent in treating the Complainant.  Hence, we found that that the allegations of wrong diagnosis and improper treatment by the Opposite Parties were not proved by the Complainant with relevant documents and proper evidence.

  There is no expert evidence to allege that the procedures followed by the Opposite Parties were not medically sound.  Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the Complainant, no negligence or deficiency in service could be found on the part of the Opposite Parties .  Medical negligence cannot be inferred it has to be proved by the complainant by evidence supported by medical expert evidence which is totally absent in the instant case. 

Therefore, we found that the Complainant has failed to establish any negligence as against the Opposite Parties. Hence there is no deficiency in service on the part of the Opposite Parties. Accordingly, Point Nos.1 and 2 are answered.

Point No.3 & 4:-

We have discussed and decided that there is no medical negligence or deficiency in service on the part of the Opposite Parties.  Hence, the Complainant is not entitled to get any relief as against the Opposite Parties.   Accordingly, Point Nos.3 and 4 are answered.

       

 

 

       In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 19^th of October 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1	05.10.2012	Original O.P chit
Ex.A2	16.10.2012	Appollo Hospital DS
Ex.A3	08.10.2012	Appollo Hospital Medical Bill
Ex.A4	22.10.2012	Appollo Hospital medical certificate
Ex.A5	22.10.2012	Apollo hospital Bill
Ex.A6	11.11.2012	Lab receipt of Medical
Ex.A7	28.02.2013	Saravana scan report
Ex.A8	02.03.2013	PKG Clinic Report
Ex.A9	28.03.2013	Legal notice
Ex.A10	05.4.2013	Receipt and acknowledgement
Ex.A11	09.04.2013	Reply notice

 

List of documents filed on the side of the 2^nd Opposite Party:-

 

ExB1	-	Hernia Journal august 2011
ExB2	-	Journal of Minimal access surgery 2006
ExB3	-	World journal of Surgery April 2002
ExB4	-	European Journal of Clinical Investigation November 2009
ExB5	-	British Journal of surgery February 2011
ExB6	-	Hernia Journal of Surgery June 2009
ExB7	-	Hernia Journal February 2011
ExB8	-	Hernia Journal February 2012
ExB9	-	Hernia Journal June 2012
ExB10	-	Hernia Journal December 2013
ExB11	-	Nigerian Medical Journal October 2010
ExB12	-	Annals of surgery 2008 & 2009
ExB13	-	British Medical Journal
ExB14	-	Russian Journal (Mosk) 2014
Ex B15	-	Francesco Guarnieri from Italy in his treatise at the joint meeting of the American Hernia Society and European Hernia Society in September 2009 in Germany
ExB16	-	Thesis submitted in the University of Toronto in 2012
ExB17	-	Journal Frontiers of Surgery June 2015
ExB18	-	Greenfield Textbook
ExB19	-	Danish Medical Journal May 2014
ExB20	-	British Journal of Surgery 2011
ExB21	-	British Hernia Society 2015
ExB22	-	State Consumer Disputes Redressal Commission, Chennai in its Judgement in C.C.277/200 dated 30th December 2011
ExB23	-	Journal hernia August 2008.

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT