IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 18th day of October, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C.No. 11/09 (Filed on 28.01.2009)
Between:
Jitty Joji (Minor),
Represented by her mother
Elsamma Joji, Kuzhivelikkalam,
Pacha-Chekkidikkadu P.O.,
Edathua, Alappuzha.
(By Adv. Vinod Varghese) …. Complainant.
And:
1. Director,
Pushpagiri Medical College
Hospital, Thiruvalla.
(By Adv. G.M. Idiculla)
2. Prof. Varghese Chacko,
Unit Chief, Dept. of Orthopaedics,
Pushpagiri Medical College Hospital,
Thiruvalla.
3. Dr. B.K. Singh MS (Ortho),
Asst. Professor-cum-
Consultant, Orthopaedics,
--do-- --do--.
(By Adv. P.K. Mathew)
4. Dr. Ashok Ramakrishnan, MS (Ortho),
Senior Lecture, --do-- --do—
5. Dr. Oommen V. Oommen,
DNB (Ortho), Lecturer,
--do-- --do-- …. 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 original complainant is a minor and she is represented by her mother. The 1st opposite party is the hospital and opposite parties 2 to 5 are the doctors of 1st opposite party.
3. The complainant’s case is that the length of the left leg of the complainant is less than the length of her right leg since from her birth. For the said deformity, the complainant was under the treatment of the opposite parties since from the age of 3 month. Initially 2nd opposite party prescribed various types of medicines and costly shoe and advised for X-rays. Accordingly, the medicines and shoe were purchased and X-rays were taken. After initial consultations, 2nd opposite party assured that if the said deformity is not cured with the medicines and by wearing the shoes, the said deformity can be corrected by a minor surgery after attaining the age of 3. Thereafter the complainant was under the observation of the opposite parties, when the complainant attained her 3rd age, she was brought to the hospital and admitted on 30.5.05 for the surgery advised by the 2nd opposite party. From 30.5.05 to August 2007 the complainant was under the treatment of the opposite parties as IP & OP. During this period, complainant was admitted and discharged on several occasions. Various types of treatments were also given to the complainant by the opposite parties during the said period including various surgeries for lengthening the complainant’s left leg. On 1.6.05 a plate was fixed in her left leg through a surgery and discharged on 11.06.2005. Thereafter on 30.11.05 the said plate was removed and illizarov external ring fixator was inserted. Subsequent to the fixing of illizarov ring, infection developed at the knee and the said infection was due to the negligent fixing of illizrov ring. Proper attention was not given for infection. Thereafter, the illizarov ring was removed for avoiding further complication. During this time, dislocation of knee bone was found. For correcting the dislocation, POP was applied. Different types of surgeries and treatments were given to the complainant by the opposite parties till 2007 August. Even after all these treatments, complainant‘s deformity was not changed. She also sustained dislocation of the hip joint. During the complainant’s treatment at opposite party hospital, complainant had suffered severe pain and many other difficulties. The complainant had also incurred heavy expenses for the treatment. Inspite of giving treatment, they have conducted experiments in the body of the complainant. Before the treatment, complainant’s ailment was only congenital short femur. But after the treatment, she cannot walk. The treatment was unscientific. Medical Board of Alleppey Medical College found 50% disability to the complainant. Now the complainant is under the treatment of Ernakulam Specialist Hospital. Because of the defective treatment, the complainant and her parents were put to irreparable injury and loss. Opposite parties never advised for better management elsewhere. All the above said difficulties are caused to the complainant due to the negligent treatment by unqualified doctors of first opposite party. Due to the above said acts of the opposite parties, the complainant and her parents suffered mental agony and financial loss. The complainant’s future was put to darkness. Everything happened due to the deficiency of service of opposite parties and opposite parties are liable to the complainant for the same. Hence this complaint for the realization of `17 lakhs with 18% interest from the opposite parties.
4. Opposite parties 1 to 3 entered appearance and 1st opposite party filed a separate version and 2nd and 3rd opposite parties filed a common version. Opposite parties 4 and 5 are exparte.
5. The main contention of the 1st opposite party is as follows:- 1st opposite party admitted the treatment of the complainant at their hospital. According to the 1st opposite party, the patient was diagnosed to have congenital short femur (thigh bone) on the left side and the said defect is one which could be treated and the length to be adjusted by a series of surgical intervention for a long period of time. Explaining these processes the child was evaluated and treated from 29th August 2002 to 28th August 2007 as outpatient and inpatient. During this period, the complainant was subjected for different types of treatment and surgeries required in the circumstances of the complainant’s deformity. All the procedures are done by qualified, competent and experienced doctors of the 1st opposite party. Before starting the treatment, opposite parties informed and explained about the period required for the treatment, the nature of the treatment and nature of surgery and about the complications and the risks involved in the treatment to the parents of the complainant. All surgeries were performed after obtaining written informed consent from the parents. The 1st surgery, Valgus Derotation Osteotomy at Subtrochanteric level was done on 30.5.05 and the patient was discharged on 11.6.05 after removing the sutures. The 2nd surgery, femur-mid 3rd corticotomy and illizarov external fixator application, was done on 30.11.05 and discharged on 20.12.05 with advice to continue the lengthening procedure by adjusting the screws at home. After a few days from the discharge, minimal discharge was noticed twice from the pin site while the patient came for review. It was indicative of infection for which appropriate antibiotics are given.
6. Unfortunately, complainant developed subluxation of knee which is a known complication, frequently encountered in femur lengthening procedure. So she was admitted again on 24.01.06 and illizarov ring was removed, surgical correction of knee subluxation was done by skeletal traction, and long leg cast was applied on 11.02.06. On 21`st March 06 when she was brought to the O.P.D and on removing the cast a small ulcer was noticed at the pin track. Appropriate treatment was given. At this stage, a significant increase in the length of femur was noticed. But subluxation, the commonest and dreaded complication of the condition was noticed. So she was admitted again on 12.02.07and illizarov apparatus was reapplied and she was discharged on 5.04.07. The complainant was again admitted on 12.04.07, the recurrent knee subluxation was corrected by distraction in illizarov. Distraction was continued and stopped on 20.04.07. She was again admitted on 28.05.07 for the same purpose and got discharged on 30.05.07. So she was admitted again on 12.07.07 for the removal of the fixator and it was removed on 14.07.07 and long leg cast was applied and discharged on 17.07.07. Again admitted on 30th July 2007 for removing the long leg cast and hinge cast applied on 31.07.07. She was reviewed in O.P after one month. Her last visit was on 28.08.07 for the removal of plaster cast. Thereafter she did not turn up for follow up.
7. The parents were informed in detail regarding the lengthiness of the procedure which involves different surgical interventions at different ages. As per medical literature lengthening of femur is performed in three surgical steps, the first stage at the age of 4-5 years, second at 8-9 years and the final stage during the adolescent age (when the child attains maturity). The whole treatment plan could be complete only by adolescent period. Till the patient finishes the growth period, the patient would be required to wear a prosthesis as well. Appropriate and scientific treatment was given to the complainant by 1st opposite party. No promises or assurances regarding the success of treatment were given to the parents at the time of commencement or at any stage of the treatment. Recurrent dislocation of the knee is a common complication of the procedure. Infection at the pin site is also a known and a common complication. The allegation that the complications are due to the negligence of opposite parties is also false. There was no dislocation of the hip joint when the patient was under the treatment of the opposite parties. All complications are detected in time and appropriate treatments were given. The complainant’s treatments were discontinued prematurely and opposite parties are totally unaware of the present condition of the child. By now she is only 8 years and the complete treatment plan is not over. So it is too early to comment on the success of the treatment plan at this age. The allegation regarding the experience and the expertise of the Orthopedic Surgeons are baseless. Treatment was not carried by a single doctor, but by a team of competent surgeons. Opposite parties 2 and 3 are famous orthopedic surgeons with several years of experience in this field. Opposite parties 4 and 5 are also qualified junior orthopedic surgeons. Any situation never occurred during the course of treatment so as to refer the patient for better management elsewhere. Without competing the treatment the disability also cannot be evaluated. 1st opposite party hospital is a Medical College with all facilities with qualified and experienced doctors. There is no negligence from the part of the opposite parties. With the above contentions, 1st opposite party canvassed for the dismissal of the complaint with their cost.
8. Since the contentions raised in the version of opposite parties 2 and 3 are more or less the same as that of the contentions in the version of 1st opposite party, we are not repeating the same for the sake of convenience. They also pray for the dismissal of the complaint with their cost as they have not committed any sort of negligence in the treatment of the complainant.
9. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
10. The evidence of this case consists of the oral depositions of PW1, PW2 and DW1 and Exts.A1 to A14 and B1 series. After closure of evidence, both sides were heard.
11. The Point: Minor complainant is represented by her mother. The allegations against the opposite parties in this complaint are as follows: The patient in this complaint is suffering from congenital short femur (thigh bone) on the left side since from her birth. The patient was brought to the first opposite party hospital at the age of 3 months. The doctors of the first opposite party after examining the patient told that the said deformity can be cured after the patient attains the age of 3 by a minor surgery. Accordingly, the patient was admitted at the hospital on 30.05.2005 and on 01.06.2005 the plate was inserted in her leg by an operation. POP was applied and discharged on 11.06.2005. Thereafter, the patient was treated by the opposite parties till 28.08.2007 as inpatient and outpatient. During this period, different types of surgeries were performed. Inspite of all these surgeries and treatments, the patient’s deformity was not cured. Proper attention was also not given to the patient while she was an inpatient at the hospital. During this period, infection was developed on her knee. Dislocation of knee bone was sustained and her hip ball was damaged. Due to the above said complications, the complainant had to suffer severe pain and mental agony. Prior to the treatment, the complainant was able to walk. But after the treatment and surgeries, the patient is not able to walk. Now the patient is having 50% disability. After the treatments of the opposite parties, the patient is now under the treatment at Specialist Hospital, Ernakulam. In connection with the treatment at the opposite parties’ hospital, the complainant had incurred an amount of ` 5 lakhs for the treatments as treatment expenses and other allied expenses. All these sufferings are due to the negligent treatment by unskilled doctors of the first opposite party. All the sufferings of the complainant were due to the deficiency of service of the opposite parties.
12. In order to prove the complainant’s case, the mother of the complainant filed a proof affidavit in lieu of her chief examination. On the basis of the proof affidavit, she was examined as PW1 and the documents produced were marked as Exts. A1 to A14. One Orthopaedic Surgeon of Specialist Hospital, Ernakulam who treated the patient was also examined for the complainant as PW2. Exts.A1 to A8 are the discharge summaries issued from the first opposite party hospital in connection with the treatment of the complainant on various occasions. Ext.A9 is the physiotherapy requisition dated 23.10.2007 issued from the first opposite party hospital in connection with the complainant’s treatment. Ext. A10 series (A10 to A10(k)) are the requests for X-ray examination issued from the first opposite party in connection with the treatment of the complainant. Exts.A11 and A11(a) are 2 bills for the X-rays taken at Vanaja X-ray Clinic, Alleppey. Ext. A12 is the bill dated 06.08.2007 for `1,390 issued from the first opposite party hospital in the name of the complainant. Exts. A13 and A13(a) are 2 discharge summaries issued from Specialist Hospital, Ernakulam in respect of the treatment of the complainant. Ext. A14 is the case sheet of Specialist Hospital, Ernakulam in connection with the treatment of the complainant.
13. First opposite party had not adduced any oral evidence in their favour. But the case sheet in connection with the treatment of the complainant was marked as Exts. B1 and B1(a) through DW1. First opposite party also cross examined PW1 and PW2.
14. The contention of the second opposite party is that the complainant was brought to the hospital for the first time on 29.08.2002 and was diagnosed to have congenital short femur on the left side while she was only 5 months old. She was reviewed in the outpatient on 31st October 2002 and was advised to come again after 3 months. When reviewed on 30th January 2003, all the details about the lengthy treatment plan were explained to them. The first admission for the purpose of surgical part of the treatment was on 16.05.2005, but surgery had postponed because the child had a bad chest infection and she was discharged on 19.05.2005. She was re-admitted on 30.05.2005 first surgery. The first step of the sequential surgical procedure, medically termed Valgus Derotation Osteotomy at subtrochanteric level was done. It was fixed with 3.5 DCP and a Hip Spica was applied. She was discharged from the hospital on 11.06.2005 after removal of sutures. She was reviewed in the orthopaedics O.P. on 21.07.2005 and the hip spica was removed. She was reviewed again on 28.07.2005 and advised to review after 2 months for starting the lengthening procedures i.e. illezarov technique. She attended the out patient clinic on 21.11.2005 and as per the advice given, got admitted on 28.11.2005. She underwent surgery on 30.11.2005 in the form of femur mid 3rd corticotomy and illizarov external fixator application. Once the lengthening equipment was applied, the implant (3.5 DCP), which was placed during the previous surgery was removed. She was discharged on 20.12.2008 with advice to continue the lengthening procedure by adjusting the screws at home. She attended the out patient clinic on 29.12.2005 and necessary adjustments were made in the lengthening equipment. She was again reviewed in the O.P. on 09.01.2006, when minimal discharge was noticed from the pin site. This was indicative of infection, for which appropriate antibiotics were given. On 23.01.2006, it was noticed that there was again minimal discharge from the pin site. X-ray showed regeneration in femur of approximately 3.5 cm length. Unfortunately, she developed subluxation, of the knee, a known complication, frequently encountered in femur lengthening procedure. She was thus admitted again on 24.01.2006, illizarov ring was removed, surgical correction of knee subluxation was done by skeletal traction and a long leg cast was applied on 11.02.2006. She was again brought for review on 21.03.2006 and on removing the cast she was noticed to have a small ulcer at the pin track. Appropriate treatment in the form of slough removal, dressing and POP splint application was done. She again attended the O.P. on 02.05.2006 and was advised to use footwear with increased sole height. As expected in the line of management and as per the records there was significant increase in the length of femur. But unfortunately there was again knee subluxation, the commonest and dreaded complication of the condition. So she had to be admitted again on 12.02.2007, illezarov apparatus was reapplied and she was discharged on 05.04.2007. She was admitted again on 12.04.2007, the recurrent knee subluxation was again corrected by distraction in illizarov. Distraction was continued and was stopped on 20.04.2007. She was admitted again on 28.05.2007 for the same purpose and got discharged on 30.05.2007. She was again admitted on 12.07.2007 for removal of the fixator, which was removed on 14.07.2007 and long leg cast was applied. She got discharged on 17.07.2007. She was again admitted on 30.07.2007, her long leg cast was removed and a hinge cast was applied on 31.07.2007. She was again reviewed in the O.P. after one month. Her last visit was on 28.08.2007 for removal of plaster cast, after this she was lost for follow up.
15. There was no negligence or deficiency of service on the side of the opposite parties in the treatment of the complainant. Standard and proper procedures alone were followed and that is universally accepted in her condition. The doctors attended the patient are qualified and experienced. The first opposite party hospital is a reputed hospital with all facilities required for the treatment of the complainant.
16. In order to prove the contentions of the second opposite party, the second opposite party filed a proof affidavit and on the basis of the proof affidavit, second opposite party was examined as DW1. Opposite parties 3 and 4 have not adduced any oral or documentary evidence, but they have cross examined the complainant and the witnesses.
17. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute regarding the treatment of the complainant at the first opposite party hospital. The first allegation of the complainant is that when the complainant was brought to the hospital for consultation at the first time, 2nd opposite party told and assured that the complainant’s ailment can be cured by a minor operation and for the surgery and treatment, they need to stay at the hospital as inpatient for 2 weeks. Instead of the aforesaid assurances, the treatment continued for more than 2 years and the ailment was not cured also. The ailment of the complainant is congenital short femur (thigh bone) and the treatment required is lengthening the bone by surgical intervention. Such a treatment cannot be completed within 2 weeks by a minor operation. This is evidenced from the deposition of PW2 which is as follows: “Hä¯hWsImv 6 c.m. \ofw hÀ²n¡pIbnÓ. Moreover, in the complaint itself, the complainant admitted that the surgery and the allied treatments started after 3 years from the date of first consultation with the opposite parties. Even after the first surgery and discharge, the complainant opted to continue the treatment and review at the first opposite party hospital. This shows that the complainant was well aware of the period and surgeries required for the complainant’s ailment. These facts and the contention of the opposite parties that a series of surgical intervention for a long period of time is required for the treatment and everything was explained to the complainant before starting the treatment, if read together, shows that the complainant’s allegation in this regard is not sustainable. The next allegation is that infection developed on the surgical portion of the complainant due to the negligence of the opposite parties. But the complainant had not mentioned the date or the period when the infection was developed. The complainant had no specific case whether the said infection was during the patient’s I.P. treatments or during patients stay at home. As per the contention of the opposite parties, the alleged infection was noticed when the patient came to the O.P. department for review. But the complainant had not adduced any evidence to show that the infection was developed during I.P. Session. Further, as per the deposition of PW2, there is chance for infection in I.R. fixation if the steel rod is not cleaned daily and the patient is not staying and living in an hygienic circumstance. As per Ext. B1 treatment records, infection was not noticed or recorded during the I.P. session. So it is clear that the alleged infection was developed not during I.P. session. So the allegation against opposite parties regarding infection is not sustainable.
18. Another allegation is that the opposite parties have not given proper attention to the patient. The complainant has not adduced any evidence to show that during such and such situation, opposite parties failed to attend the patient properly. Since the complainant had no specific allegation regarding the non-attendance towards the patient, we are compelled to examine Ext.B1 treatment records. The treatment record shows that the patient had given proper attention during I.P. session. So the said allegation is also not sustainable.
19. The next allegation is that due to the negligent treatment by the opposite parties, the patient had sustained dislocation of the knee. But according to the opposite parties, such a complication is common in this procedure. This contention was also supported by PW2 in his chief examination which is as follows: “I.R. fixation \S¯nbm knee dislocationþ\v km[yX IpdhmWtÃm (Q) icnbÃ, knee dislocationþ\v km[yX hfsc IqSpXemWv. (A). CsXmgnhm¡m³ precaution FSp¡matÃm (Q) ap³IcpX FSp¯mepw dislocation kw`hnbv¡mw (A) “. PW2 is an experienced Orthopaedic Surgeon having 15 years of service who had conducted about 1200 surgeries like this. In the circumstance and in the absence of cogent evidence, the said allegation is also not sustainable.
20. With regard to the allegation of damage to the hip ball, opposite parties’ contention is that such a complication was not found in the patient during the period of treatment at the opposite parties’ hospital. This contention is also not confronted by the complainant with cogent evidence. So this allegation is also found against the complainant. The treatment for congenital short femur (thigh bone) i.e. lengthening process requires long time and it is not a treatment which can be completed within a short time. The result cannot be achieved within a short period. As per the available evidence, the complainant left from the opposite parties’ hospital during 7/2007 i.e. after 2 years of treatment at the age of about 5 years. So the evaluation is not possible at this stage whereas the treatment is required till the patient attains her adolescent age. Moreover, PW2 in his cross examination clearly deposed that the patient was brought to him on 14.07.2008 whereas the patient left the opposite parties’ hospital on 28.08.2007. The treatment details from 28.08.2007 to 14.07.2008 are not brought in evidence by the complainant. He deposed that there is no negligence on the part of opposite parties 2 and 3 in their treatment. He also deposed that all facilities required for lengthening procedure are used at the first opposite party hospital in the treatment of the patient. His deposition is as follows: “Cu tIknse Ext.A1 toA8 tcJIÄ ]cntim[n¨Xn 2þDw 3þDw FXrI£nIfpsS NnInÕbn negligence ImWp¶nÃ(A). Lengthening procedure BhiyapÅ FÃm facilities-Dw ]pjv]Kncnbn D]tbmKn¨n«pÅXmbpw Sn tcJIÄ sImv a\Ênem¡mw“.
21. From the facts and circumstances of this case and on the basis of the observations and discussions herein above, we cannot find any deficiency of service from the part of the opposite parties in connection with the treatment of the patient and hence this complaint is not allowable.
22. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 18th day of October, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Elsamma Joji.
PW2 : Dr. C. Cherian Kora.
Exhibits marked on the side of the complainant:
A1 to A8 : Discharge summaries issued from the first opposite party hospital
in connection with the treatment of the complainant.
A9 : Physiotherapy requisition dated 23.10.2007 issued from the first
opposite party hospital.
A10 series (A10 to A10(k) : Requests for X-ray examination issued from the
first opposite party.
A11 & A11(a) : 2 bills for the X-rays taken at Vanaja X-ray Clinic, Alleppey.
A12 : Bill dated 06.08.2007 for ` 1,390 issued from the first opposite
party hospital in the name of the complainant.
A13 & A13(a) : 2 discharge summaries issued from Specialist Hospital,
Ernakulam in respect of the treatment of the complainant.
A14 : Case sheet of Specialist Hospital, Ernakulam in connection with
the treatment of the complainant.
Witness examined on the side of the opposite parties:
DW1 : Dr. V. Chacko.
Exhibits marked on the side of the opposite parties:
B1 & B1(a) : Medical records.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Elsamma Joji, Kuzhivelikkalam, Pacha-Chekkidikkadu P.O.,
Edathua, Alappuzha.
(2) Director, Pushpagiri Medical College Hospital, Thiruvalla.
(3) The Stock File.
