IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.39/2011 (Filed on 17.02.2011)
Between:
S. Rajesh,
S/o. Sasikumar,
Maniyankuli,
Kulasekharam,
Tamil Nadu, residing at:
Thalakkavil Veedu,
Manthuka Muri, Kulanada.
(By Adv. A.C.Eapen) ….. Complainant
And:
1. Chithra Multi Speciality Hospital,
Pandalam, rep. by Dr. Jayachandran.
2. Dr. Binesh Babu. B,
Chithra Muti Speciality Hospital,
Pandalam.
(By Adv. Preetha John. K for opposite
Parties 1 and 2) ….. Opposite parties
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant is a mason by profession. From 2010 June-July onwards the complainant is suffering from continuous back pain. So he went to 1st opposite party hospital and consulted 2nd opposite party who is the orthopedic specialist in that hospital. As per the instrtuction of 2nd opposite party, the complainant taken MRI scan at Muthoot Scan Centre, Thiruvalla. After perusing the scan report 2nd opposite party told the complainant that his disc is bulged and the bulged discs are to be removed for a complete relief. 2nd opposite party advised for a surgery. The complainant several times asked 2nd opposite party with regard to the complete cure of the problem. 2nd opposite party gave assurance to the complainant that he will get complete cure after surgery. Believing the words of 2nd opposite party, the complainant given consent for the surgery. The 2nd opposite party also made complainant to believe that he had done about 85 surgeries for the same problem and all those patients got complete cure.
3. Several tests under the instruction of opposite party is done before surgery and on 15.09.2010 2nd opposite party conducted surgery for removing the bulged disc of the complainant. After the surgery 2nd opposite party advised him to take rest for one month and told that his back pain will be cured after taking rest. But the complainant didn’t get any relief after one month. His back pain increased day by day. So the complainant approached the 2nd opposite party with his complaint, then 2nd opposite party said that there is some infection in the surgical part and it can be removed by another surgery. Opposite party also told that treatment can be continued after taking a scanning. Accordingly scanning was done. After examining the scan report 2nd opposite party advised for the surgery. Thereafter the complainant consulted Dr. Renjith Kumar, Amrita Hospital, Kochi and Dr. Reji, District Hospital, Kozhencherry. Both doctors told the complainant that there was no need for a surgery and the 2nd opposite party didn’t remove the bulged disc. They also told that 2nd opposite party done the surgery negligently and they advised to take pain killers regularly for curing the back pain. They also told him that the present complications are due to the negligent surgery of the 2nd opposite party. In connection with the treatments the complainant had spent ` 2.5 lakhs and now he is not in a position to do his work and he and his family were put to untold miseries. All this occurred due to the negligence of the opposite parties and they are liable for the same. Hence this complaint for realizing ` 12.5 lakhs and cost of this proceedings from the opposite parties.
4. Opposite parties entered appearance and filed common version with the following contentions: The complainant filed this complaint by suppressing true facts and with malafide intention to harass the reputation of the opposite parties without any merit in it. Opposite parties admit that the complainant approached opposite parties with severe back pain and pain radiating to his left leg which were restricting him from his daily living. On examination it was found that he has weakness of extensor hallusis long muscle. As his pain was not subsiding with rest and pain killers an MRI LS Spine was taken to rule out the cause. The report showed an IVDP L4-L5 level with nerve root compression and mild IVDP at L5-S1 and mild degenerative changes of the spine. In a young adult IVDP L4-L5 nerve root compression and muscle weakness is surely an indication of surgery. So the 2nd opposite party advised the complainant accordingly. Even before surgery complainant was also informed that persistent back ache and weakness can occur as a complication of the surgery. The operation called Discectomy L4-L5 under spinal anesthesia was done by the 2nd opposite party on 15.09.2010 after obtaining written consent from the complainant. Post operative period was uneventful and he was discharged from the hospital on 22.09.2010 without any complaint. The complainant approached the hospital thereafter for follow up a couple of times. The complainant was not having any pain for the first one month is a clear indication that surgery was successful.
5. The subsequent MRI Report of Amrita Hospital also shows that he has no complaint other than inflammation which suggestive of discitis due to infection which is an unfortunate complication as in any surgeries and has nothing to do with the surgeon. The opposite parties are not at all responsible for surgical infection which can be caused due to many reasons. The opposite parties have taken maximum care and attention to the complainant and all necessary medical assistance were given to him and hence there was never an instance of negligence or deficiency in service. Complainant was charged only ` 50,000 for the treatments. Hence opposite parties prays for the dismissal of the complaint with their cost.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral testimony of PW1, PW2, DW1 and Exts.A1 to A40 and B1 and B1(a). After closure of evidence, both sides filed argument notes and they were heard.
8. The Point:- The complainant’s allegation is that he is a mason by profession and he approached 1st opposite party hospital and consulted 2nd opposite party Orthopedic surgeon for his severe back pain. As it was diagnosed in MRI that the complainant had disc prolapse, 2nd opposite party advised for a surgery and surgery was done on 15.09.2010. Even after surgery and adequate rest as advised by 2nd opposite party, the problems of complainant persist. So he had consulted other doctors and all the doctors told the complainant that there was no need for a surgery and the 2nd opposite party didn’t remove the bulged disc. According to the complainant, his ailment is curable by exercise and the surgery was unnecessary and the surgery done was not proper and hence he is put to irreparable injury and loss and opposite parties are liable for the same.
9. In order to prove the case of the complainant, complainant filed a proof affidavit in lieu of his chief examination along with numerous documents. On the basis of the proof affidavit complainant was examined as PW1 and documents produced were marked as Exts.A1 to A39 series. Dr. Reji George orthopedic surgeon of District Hospital, Kozhencherry was also examined as PW2 for the complainant and Ext.A40 is marked through him. Ext.A1 to A35 are the treat bills of the complainant in connection with his treatment. Ext.A36 is the MRI report of Muthooot Scan dated 10.09.2010. Ext.A37 is the MRI scan report of Muthoot Scans dated 21.10.2010. Ext.A38 is the MRI report of Amrutha Hospital dated 18.11.2010. Ext.A39 series are the Trip sheet for the complainant’s traveling expenses. Ext.A40 is the prescription slip dated 04.02.2011 issued by PW2.
10. On the other hand, the contention of opposite party is that they have treated the complainant for prolapsed disc and a surgery was done. Before surgery, opposite parties given correct information to the complainant with regard to the complications of the surgery. They have also obtained written consent from the complainant before conducting the surgery. The post operative period was uneventful and discharged him on 22.09.2010. Thereafter he visited the hospital and didn’t have any symptoms of back pain. The modality for the treatment of this type of illness is surgery. They have conducted the surgery with utmost care and there is no negligence from their part.
11. In order to prove the contention of the opposite party, 2nd opposite party filed proof affidavit and he was examined as DW1 and the document produced as per order in I.A. 200/11 is marked as Ext.B1 series. Ext.B1 is the case sheet of the complainant. Ext.B1(a) is the informed consent of the complainant attached in Ext. B1.
12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the complainant had undergone treatment at the first opposite party hospital for complaints of back pain. Second opposite party attached to the first opposite party hospital conducted a surgery named discectomy L4-L5 under spinal anaesthesia on 15.09.2010 on the basis of the scanning report and other examinations. The complainant’s allegation is that the said surgery was an unnecessary surgery and the said surgery was done without any reason and it was done in a negligent manner and the 2nd opposite party had not done anything to cure the ailments of the complainant. Complainant’s ailments are curable by exercise and medicines and the above said facts were gathered from Dr. Renjithkumar of Amrita Hospital and Dr. Reji George of District Hospital, Kozhencherry when he consulted them with the scanning reports taken before and after surgery. Because of the said unwanted and negligent surgery, he cannot do any work for his livelihood.
13. This is a case of alleged medical negligence. In such cases, the oral evidence of an aggrieved party alone is not reliable as the aggrieved party is not an expert in medical field. So the evidence of experts in the relevant field is very material. In this case, in order to prove the allegations of the complainant, an expert in orthopaedics having 17 years experience who also had occasion to see the complainant during his consultation, was examined as PW2 for the complainant. On a thorough analysis of his deposition in chief and cross clearly shows that the allegations of the complainant against opposite parties are not sustainable. The relevant portion of his deposition in chief is as follows: “Disc prolapse hymbm-a-¯n-eqsS amäm³ Ign-bn-Ã. acp-¶n-eqsS amämw. Exercise –eqsS amäm³ Ign-bnÔ. (Q)(A)…………. 6 amkw hsc Bed rest FSp-¯n«pw t`Z-am-Ip-¶n-sÃ-¦n am{Xsa surgery \nÀt±-in-¡p-I-bpÅp F¶p ]d-bp-¶Xv icn-b-Ã……………Medical ethics {]Imcw last resort F¶ \ne-bn ]qÀ®-ambpw t`Z-am-Ip-sa¶v Dd-¸p-s-¦n am{Xsa surgery -\-S-¯m-dpÅp F¶p ]d-bp¶Xv icn-bÔ. (Q)(A).
14. The relevant portion of the deposition of PW2 in his cross examination is as follows: “Surgery \S-¯n-bmepw FÃmhÀ¡w AkpJw ]qÀ®-ambn amd-W-sa-¶n-Ã. Cu kµÀ`-¯n hopw MRI advice sN¿pw. MRI -A-\p-k-cn¨vv Bh-iy-sa-¦n hopw kÀPdn \nÀt±-in-¡m-dp-v. kÀP-dn-¡p-tijw kÀPdn t]mÀj-\n Inflammation -D-m-Ip-¶Xv accepted complication BWv. Disc prolapse NneÀ¡v ]qÀ®-ambn amdn-¡n«pw F¶m NneÀ¡v amd-W-sa-¶nÔ.
15. In view of the above deposition of PW2, we cannot find any negligence on the part of the opposite parties. The complainant also admitted in his cross examination that he had not undergone any further intensive treatments except the medicines prescribed from Amrita Hospital. He also admitted that after using the said medicines, he is able to walk and now he is not using medicines. These admissions also indicate that there is no negligence from the part of the opposite parties. Further, the complainant has not adduced any evidence to prove that the surgery and the treatment of the second opposite party is against the medical ethics and the second opposite party is an incompetent doctor and he had not applied a reasonable skill. The surgery and the treatment given to the complainant by the second opposite party is the usual and generally accepted procedure and other doctors are also adopting the same procedure in like cases. So we cannot found any fault on the second opposite party.
16. From the overall facts and circumstances of this case, we cannot find any deficiency or negligence from the part of the opposite parties. Therefore, this complaint is not allowed.
17. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 28th day of May, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Rajesh. S.
PW2 : Dr. Reji George.
Exhibits marked on the side of the complainant:
A1 to A35 : Medical bills of the complainant in connection with his
treatment.
A36 : MRI report of Muthooot Scan dated 10.09.2010.
A36(a), A36(b) & A36(c) : MRI films (3 in number).
A37 : MRI scan report of Muthoot Scans dated 21.10.2010.
A37(a), A37(b) & A37(c) : MRS films (3 in number).
A38 : MRI report of Amrutha Hospital dated 18.11.2010.
A39 series: Trip sheets for the complainant’s travelling expenses. A40 : Prescription slip dated 04.02.2011 issued by Dr. Reji
George.
Witness examined on the side of the opposite parties:
DW1 : Dr. Binesh Babu. B.
Exhibits marked on the side of the opposite parties:
B1 : Original case sheet of the complainant.
B1(a) : Consent letter signed by the complainant attached in
Ext. B1.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) S. Rajesh, Thalakkavil Veedu,Manthuka Muri,
Kulanada.
(2) Dr. Jayachandran, Chithra Multi Speciality Hospital,
Pandalam.
(3)Dr. Binesh Babu. B, Chithra Muti Speciality Hospital,
Pandalam.
(4)The Stock File.
