Telangana

Mahbubnagar

CC/08/2

Thippanna S/o Shambhoji O/c Rtd Employee - Complainant(s)

Versus

Dr Vishnu Janardhan and Dr Laxmikantha Reddy - Opp.Party(s)

Sri C.S. Kumar n Sri L.Ganagdhar Reddy

12 Nov 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

 

Wednesday, the 12^th day of November, 2008

 

                   Present:- Sri M.Rama Rao, B.A.,LL.B., President

     Sri P.Venkateshwara Rao, B.com., LL.B., Member

       Smt.B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

 

                                                                                       C.C.NO. 2  Of   2008

 

Between:-

Thippanna S/o Shambhoji, age 63 years, Occ: Retd. Employee,                          R/o H.No.3-6-74, Ravindra Nagar, Mahabubnagar.  

                                                                                               … Complainant

And

1. Dr.Vishnu Janardhan, Vijaya Nursing Home, Behind                               Head Post Office, Mahabubnagar.
2. Dr.Laxmikantha Reddy, Dhanwanthari Orthopedic                                  Hospital, Adjacent to Shetty Complex, Rajendranagar,                 Mahabubnagar.

 

                                                                                      … Opposite Parties

 

 This C.C. coming on before us for final hearing on 30-10-2008,         in the presence of Sri C.S.Kumar and Sri L. Gangadhar Reddy, Advocates, Mahabubnagar for the complainant and of Sri K.Pratap Kumar, Advocate Mahabubnagar for the opposite parties and having stoodover for consideration till this day, this Forum delivered the following:

 

O R D E R

 

 (Sri M.Rama Rao, President)

 

1.      This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to      the opposite parties to pay compensation of rupees Six lakhs towards damages and also pay the costs of the proceedings.

 

2.      The complaint averments are as follows:-   The complainant suffered an injury to the right foot as he slipped by putting his foot on a brick and fell down.  The complainant sustained bruises on his body and due to twisting of the foot there was a sprain in foot.  On 26-07-2007 the complainant approached OP.No.1 for treatment to his foot and requested OP.No.1 to take an X-Ray of the foot.  But he diagnosed the foot, as there is sprain as it is a simple one and he prescribed medicines.  The complainant purchased and used the medicines for 5 days as prescribed by OP.No.1.  But the sprain and pain did not subside and there was heavy swelling of the foot and the entire foot has become black as it got infected.  The complainant visited OP.No.1 he was advised to continue the medicine for further 10 days.  But there is no improvement and the complainant totally got immobilized and suffered unbearable pain and aching and the swelling, inflammation and the blackening of the leg increased enormously.  On the advise of OP.No.1 the complainant approached OP.No.2 on 08-08-2007 and asked to take X-Ray of the foot.  But he also stated that the injury is simple and it is only a sprain it does not require the X-Ray examination of the foot and prescribed medicines.  The complainant used the medicines regularly.  But there was no relief and life became practically hell and ultimately the complainant approached Orthropadecian at SVS Medical College Hospital on  28-08-2007.  The doctors declared that the sprain is deteriorated and had the X-Ray of the foot taken at the very inception the dislocation in the bone could have been set right by performing simple operation of setting right the dislocated bone and applied plaster and they should have taken into consideration that the complainants, preexisting diseases like diabetes and hypertension the doctors at SVS hospital opined that the operation to set right the dislocated bone can not be done now because of the deterioration of the condition of the foot and they only prescribed medicines and injection to reduce the inflammation and pain.  The complainant also consulted the Dr. Vijay Raghavan, Orthopedic Surgeon at Hyderabad.  He also confirmed the opinion of the doctor’s at SVS Medical College hospital.  Due to the negligent treatment of OPs the complainant is permanently deprived of use of his right leg and if the leg is used there is very danger of dislocated one coming out of the skin by piercing the skin thereby causing bleeding injury which may develop into gangrene.  The prescription of medicines of OPs.1 & 2 used by the complainant resulted in the permanent disablement of his right leg and also the medicines deteriorated the condition of the complainant and his preexisting complication of diabetes and hypertension.  That the complainant suffered and underwent the trauma of pain and suffering due to the negligent conduct and callous, unethical approach and wrong and unscientific diagnosis of OPs.1 & 2.  Hence they are liable to pay Rs.6 lakhs in total as compensation and costs of the proceedings.  Hence the complaint.

 

3.    The opposite parties filed counter with the following averments:-  It is false to say that the complainant has suffered an injury to the right foot as he slipped by putting his foot on a brick and fell down.  All other averments pleaded about the alleged injury are denied as the complainant has not stated anything about the said injury when approached the opposite parties for treatment.  It is true that the complainant approached the opposite parties for treatment.  It is true that the complainant approached OP.No.1 for Medical treatment, but it is false to say that he approached for treatment to his foot for accurately determining the damage caused to the foot and for proper and necessary treatment.  Admittedly the complainant was under the treatment of Dr.Mahesh Babu, Cardiologist for heart disease, diabetes, hypertension and he was advised by the said Cardiologist to consult OP.No.1 for diabetic right foot sepsis/infection of right foot as OP.No.1 is a general surgeon.  It is false to say that on 26-7-2007 the complainant requested OP.No.1 to take an X-Ray of the foot and that OP.No.1 has stated that he diagnosed the foot as a sprain and it is simple one and prescribed medicines.  In fact, the complainant never disclosed about his alleged injury on the said date or at any other point of time.  The complainant has walked into the consultation room of OP.No.1 on 26-7-2007,   30-7-2007 and 4-08-2007 and there was no history of injury to his right foot.  The opposite party has examined the complainant thoroughly as out patient in his consultation room and came to conclusion that he is suffering from acute cellulites, lymphangitis with lymphodema of foot- Diabetic foot (Infection of foot or sepsis of foot).  OP.No.1 has prescribed appropriate medicines for the infection (Spesis) of foot on 26-7-2007 for 5 days and advised him to take absolute bed rest with elevation of foot.  As there was no history of injury, the opposite party has not advised any  X-Ray particularly in view of the fact that the complainant has not reported any injury to his right foot.  OP.No.1 has reexamined the complainant on 30-7-2007 and found that there was some response for the medicines and OP.No.1 has changed the medicines and asked the complainant to report back him after 5 days.  On 04-08-2007 the complainant has again visited OP.No.1 and he was examined and it is observed that there was very good response for the medicines and hence he was advised to continue the same medicines for another 5 days and further OP.No.1 has advised the complainant to take Orthopedic Surgeon’s opinion also and report back to OP.No.1 .  The complainant thereafter never visited OP.No.1.   It is false to say that even after using the medicines prescribed by OP.No.1 the injury and pain did not subside and aggravated enormously and that the complainant totally got immobilized and suffered unbearable pain and ache and swelling, inflammation and the blackening of the leg increased enormously.

It is true that the complainant approached OP.No.2, but not on  08-8-2007.  In fact the complainant has approached OP.No.2 on      10-8-2007 for swelling and pain of Diabetic foot.  The opposite party examined the complainant and found swelling and tenderness of foot and leg.  The complainant never gave history of trauma.  The complainant informed OP.No.2 that he was under the treatment of Dr.Mahesh Babu, Cardiologist and he referred him to OP.No.1 for treatment for Diabetic foot, as he was known for diabetic and cardiac patient for many years.  OP.No.2 has advised the complainant to get Doppler test done to exclude Deep Vein THROMBOSIS (DVT) as DVT is one of the common and serious complication in diabetic, cardiac in elderly people and who had evidence of infection of the part.  The Doppler Test showed incompetence of one perforator vessel with venous stasis.  Hence, OP.No.2 prescribed him drugs to control the swelling of foot and asked him to take rest with elevation of foot.  The complainant left the out patient clinic of OP.No.2 by walking.  OP.No.2 has not taken any X-ray as there was no history of injury and the complainant has also not reported any injury.  The complainant has again visited OP.No.2 on 16-8-2007 walking without any support and without feeling any pain.  OP.No.2 found decrease in swelling of foot of complainant and he was feeling better.  OP.No.2 has prescribed medicines for 10 more days.  The complainant on said date also never revealed that he sustained injury to foot.  Thereafter, the complainant never approached OP.No.2 for further treatment.  The complainant is falsely alleging that OP.No.2 has stated that the injury is simple and it is only a sprain and it does not require X-ray examination.  When the complainant has not complained any injury and there is no history of injury, the question of taking X-ray does not arise.  The opposite parties have no personal knowledge whether the complainant has used the medicines prescribed by them properly or not.  The opposite parties have no personal knowledge whether the complainant approached SVS Medical college hospital on 28-8-2007 and about the nature of advice or opinion given by the doctors in the said hospital.  The complainant is put to strict proof of the said facts pleaded in said para.  The opposite parties also do not know the nature of treatment taken by the complainant in the said hospital.  However, as per the documents submitted by the complainant he was admitted to SVS hospital on  26-9-2007.  There is a gap of 40 days from the date of last visit of complainant to OP.No.2 i.e., 16-8-2007 and visit to SVS hospital on  26-9-2007.  The complainant has to explain as to what sort of treatment he has taken during said period and who were the doctors that treated him and the details of medicines used by him during said period.  The discharge summary given by SVS Medical hospital also show some discrepancy as at one place they have stated that the problem of complainant is 2 1/2 months old Talonavicular dislocation and at another place it was mentioned it as 1 1/2 month old Talonavicular dislocation.  The complainant has falsely pleaded in the complaint that he visited SVS hospital on 28-8-2007.    It is not known to the opposite parties whether the complainant is using all the medicines and also consulted Dr. Vijay Raghavan and about the opinion given by the said Doctor.  It is false to say that the complainant is totally and permanently disabled by non-use of right leg.  Even if the complainant is permanently disabled, the opposite parties are not proper persons to give reply to the same, as they are not responsible for the problem of complainant.  The patients with Diabetic foot will face similar problems and there are cases where patients will have to go for amputation of foot, inspite of the best treatment.     It is false to say that the prescription of medicines by the opposite parties and use of said medicines by the complainant resulted in the permanent disablement of the right leg of complainant and the medicines deteriorated the condition of the complainant and his preexisting complication of diabetes and hypertension.  It is false to say that the complainant suffered and underwent trauma of pain and suffering due to negligent conduct of callous and unethical approach, wrong and unscientific diagnosis of the opposite parties resulted into permanent disablement of the complainant.  It is false to say that the opposite parties are liable to pay compensation to the complainant due to professional negligence and erroneous treatment of opposite parties.  In fact, the opposite parties are not at all negligent and they have given proper treatment to the complainant.  The complainant has levelled wild and false allegations against the opposite parties for the purpose of present complaint.

 

         The opposite parties further pleaded that the real facts of the case are that the complainant never disclosed about his alleged injury to the opposite parties when he visited them as pleaded.  When there is no history of injury, there is no need to take X-Ray and hence the opposite parties did not advise the same.  If really, the complainant has reported about the injury as contended by him with OP.No.1 or at later point of time with OP.No.2, they might have definitely advised for X-Ray.  As the complainant was referred by Dr.Mahesh Babu to OP.No.1 to treat the Diabetic foot, the same treatment was given.  Admittedly the complainant was known diabetic for many years.  Therefore one of the complications that can occur in elderly people, who are diabetic, is Charcot joint.  In Charcot joint complication in diabetic foot, there can be spontaneous dislocation of Talanovicular joint of foot.  He might have had spontaneous dislocation of Talonavicular joint of the foot during the 40 days period which is a gap between treatment given to him by OP.No.2 after he was referred by OP.No.1 and till he took treatment in SVS hospital.  In the discharge summary of SVS hospital, it was written that the complainant is having 11/2 month old dislocation.   The complainant has falsely alleged that he had unbearable pain and agony and totally got immobilized.  In fact during his visits to the opposite parties, the complainant came walking independently without any support and left walking independently.  The complications in the case of complainant may occur due to uncontrolled diabetes and not due to treatment or alleged negligent treatment of opposite parties.   The complainant has referred about opinion of Dr.Vijaya Raghavan, Eminent Orthopedic Surgeon at Hyderabad, it is also evident that he has advised him only some foot wear to be worn, and not any surgery.  According to complainant, the Doctors in SVS hospital, Mahabubnagar have advised him for surgery.  Thus, there are contradictory versions by the complainant.   The complainant falsely alleged that he might develop ulcers, Gangrene, Amputation due to treatment given by the opposite parties.  In fact, he may develop the above complication in the natural course of the disease, diabetes mellitus, uncontrolled particularly in Elderly people, but not due to drugs.   There is no negligent treatment on the part of the opposite parties and they have treated the complainant properly and there is no deficiency of services on the part of opposite parties.  The opposite parties have taken reasonable care and given good and required treatment to the complainant.  The complainant might have developed complications due to diabetes mellitus, Hypertension, due to his own negligence like not attending for regular treatment and checking, not following the doctors’ advise and prescription and not adherent to strict diabetic diet.  The complainant has intentionally not produced all the medical records and prescriptions pertaining to the treatment that he has taken subsequent to examination.  On this ground also the present complaint is fit to be dismissed.   The opposite parties are very reputed and experienced doctors and prescribed proper medicines to the complainant and not indulged into any negligent act.  The complainant has filed present complaint to harass the opposite parties and to extract money from them.  The complainant has not come to the Forum with clean hands and suppressed all the real and material facts and filed the present complaint.  The complainant has also filed false Medical bills to show that he has spent lot of amount on medicines.  On this ground also the present complaint is fit to be dismissed.   

 

            The present dispute is not a consumer dispute and there are complicated questions involved in the case and hence the present complaint is not maintainable and the complainant has to approach civil court for the relief.  The opposite party No.1 is insured with Indian Medical Association for Professional protection and welfare scheme.   By viewing from any angle there are absolutely no merits in the complaint, as such the complaint is fit to be dismissed with costs.

 

4. The complainant filed his affidavit and got marked Exs.A-1 to A-15.

 

5. The opposite parties filed their affidavit and did not file any documents  on their behalf. 

 

6. The complainant and OPs filed their respective written arguments and argued at length. 

 

7. The point which falls for consideration is whether the complainant is entitled to the reliefs as prayed for?

 

8.    The specific contention of the complainant is that he suffered an injury to the right foot as he slipped by putting his foot on a brick and fell down.  He sustained bruises on his body and due to twisting of the foot there was a sprain in foot.  Therefore on 26-7-2007 initially he has approached OP.No.1 for treatment of his foot and he has given initial treatment and diagnosed the foot as a sprain and it is a simple one and prescribed medicine.  Inspite of using medicines injury was not cured.  As such OP.No.1 referred him to OP.No.2.  He also prescribed some medicines.  But there was no improvement.  Then the complainant has approached the doctors of SVS Medical Hospital, Mahabubnagar and they declared that the sprain is deteriorated and gave opinion that proper treatment was not given initially by the opposite parties.  Thus OPs have not properly treated and even they have not advised for X-Ray and the medicines prescribed by them deteriorated the condition of foot.  As a result the complainant is permanently deprived of use of his right leg.  Hence he is entitled to claim Rs.5,70,000/- towards compensation and Rs.30,000/- which he incurred towards expenses.

     On the other hand the opposite parties denied the allegations of the complainant and it is their specific case that when the complainant approached OP.No.1 he has not reported any history of fracture or injury to his foot.  In fact the complainant is known heart and diabetic patient and he was referred by Dr.Mahesh Babu with a specific reference to treat the complainant for diabetic foot sepsis/infection of right foot.  Hence OP.No.1 has treated the complainant in the same lines and given proper treatment.  There is no necessity to take X-Ray in each and every case.  The complainant was known diabetic for many years and one of the complication that can occur for elderly people who are diabetic is Charcot, when such Charcot joint complication in diabetic found there can be spontaneous dislocation of Talonavicular joint of foot.  The complainant had the said problem.  Therefore there is no negligence on the part of the opposite parties in treating the complainant and the doctors who treated subsequently at SVS hospital also not found any fault in treatment of OPs.  Hence the complaint is false and OPs are not liable to pay any amount and complaint is liable to be dismissed.

 

9.    The complainant relied on Exs.A-1 to A-15 to prove his contention and examined CW2 to CW5 on his behalf.  There is no dispute with regard to the prescriptions, i.e., Ex.A-1.   CW2 & CW3 are the persons who said to have assisted the complainant in shifting for checkups.  CW4 and CW5 are the doctors who have treated the complainant subsequently in SVS Medical College, Mahabubnagar. The complainant vehemently contended that these doctors are subject experts and opined and found fault in giving treatment to the complainant by OPs. 

 

10.   The complainant solely relied on the evidence of CW4 & CW5 to establish his case of medical negligence against the opposite parties that the treatment given by them is not correct.  Therefore we feel it is proper to reproduce the deposition of the CW4 and CW5 hereunder:

 

Dr.Someswar Reddy, Associate Professor, SVS Hospital, Mahabubnagar who was examined as CW4 deposed that;

 

“I am working as Associate Professor in SVS Medical College since September, 2004.  I have seen him on 29^th August, 2007.  He came with a swelling of right ankle and foot.  He admitted on 2^nd September, 2007 with complaints pain and swelling and is able to walk.  History of treatment taken out side.  He is known diabetic and hypertensive taking treatment for both conditions.  X-Ray was taken his blood sugar (fasting) 416 and post lunch sugar 482.  Planned for surgery case was referred to physician and Anesthetist.  He left the hospital against my advise on 5-9-2007 and he was readmitted on 26-9-2007.  Case again referred to physician and Anesthetist physician has asked for cardiologist opinion.  The Anesthetist given on opinion thus the patient is having diabetic melliths and hypertension with chronic Rheumatic heart disease with mitral stenosis mitral regurgitation with pulmonary arterial hypertension with left ventricular hypertension with tricuspid regurgitation and only general anesthesia is choice of anesthesia and case requires certain special  equipments and drugs which are not available in this institute advised to refer the case to higher institute.  The patient was discharged on 3-10-2007.

 

In diabetics which is long stand duration which is already effected, to prevent ulceration skin we will advised surgery.  The surgery in form of removing any projecting part.  In diabetics of long stand duration the foot can affected with peripheral neuropathy and peripheral vascar involvement which can lead into a Charcut’s joint where spontaneous Subluxation or protrusion of bone can occur.  I have not seen early case sheet.  Diabetics can cause dislocation in some people.  I can’t say that this will not happened had it been treated earlier”.

 

 In the cross examination the witness said that  “there is no need to take X Ray for each and every swelling witness adds when we suspects any pathology which can be known by taking  X-ray we will take X-Ray.  It is true to say that the problem can arise without injury in patients with long standing diabetic.  If the patient doesn’t care and proper treatment it may lead to further complications”. 

 

Dr.Narsimulu, Asst. Professor, SVS Hospital, Mahabubnagar who was

       examined as CW5 deposed that;

 

          “I am working as Assistant Professor in SVS Hospital since 3 ½ years.  I have examined the patient on 26^th September, 2007.  The patient was complaint in pain and swelling on right foot due to fall.  On my clinical examination there was swelling medial aspect of the right foot which is bone hard in consistency by seeing the X-Ray the talo navicular dislocation of right foot.  Whenever dislocation there reduction is done by surgery or conservation.  (Conservative means by manipulation, medication or modified foot wear).

     This dislocation may leads to ulceration of the skin over the bone prominence for that I planned execution of the bone problem under anesthesia medically the patient is not fit for surgery, referred to higher center because of the non availability of equipment and special drugs.

 

          This is very difficult to say whether the dislocation is happened due to injury or due to long standing diabetic.

 

          Whenever there is dislocation that should be corrected immediately.  Provided the patient is medically fit.

 

          I have not seen the previous case sheet of the patient pertaining taking treatment from other doctors.

 

          The patient told me he had taken treatment from Orthopedic surgeon in a conservative manner before coming to SVS Hospital.

 

     According to patient the age of the dislocation was 2 ½ months old as on 26-9-2007.  If it is acute dislocation due to trauma there may be severe pain swelling and the patient unable to walk immediately after injury.  The patient came by walk and he was not having severe pain.  It can be happened such type of dislocation may occur by standing diabetic without injury also as for my knowledge”.

 

          In cross examination the witness said that “It is true in the discharge summary in columns of history illness the version of patient will be mentioned.  If a patient comes with ulceration of skin it has to be treated”.

 

11.    Both the doctors made it clear that they have not seen early case sheet of the complainant pertains to taking treatment from OPs.  However the complainant visited them with a complaint of swelling of right ankle and foot.  He came by walk and he was not having severe pain.  He is known diabetic and hypertensive taking treatment for both conditions.  The alleged problem can arise without injury in patients with long standing diabetic and diabetics can cause dislocation in some people and it can not be said that this will not happen had it been treated earlier.  Both the witnesses who are experts and examined on behalf of the complainant have not made any support to the case of the complainant and not pointed out any fault in the treatment of OP.No.1.  The CWs 2 & 3 have supported the case of the complainant. However they are not the subject experts to depose on the medical science.  Therefore no credibility can be given to their version.  Hence we are not considering their evidence.  Further the complainant has not shown any medical literature to the effect that what was done was not the correct approach to deal with the situation.   No evidence has been led by the complainant to show as to what was done by OPs ought not to have been done. 

 

      It is by now a settled proposition of law that in case of medical negligence onus to prove medical negligence heavily lies on the complainant.  The Hon’ble National Commission had occasion to deal with this issue in the case of Dr. Harkanwaljit Singh Saini  Vs. Gurbax Singh and another reported in CPJ 2003 (1) P.153 wherein it was held that; 6. “The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based”.  In another decision  the Hon’ble National Commission in the case of Kanhaiya Kumar Singh Vs. M/s Park Medicare and Research Centre, reported in CPJ 1999 (3) P.9 held that “the medical negligence has to be established and cannot be presumed”. 

 

         Therefore in our considered opinion unless the complainant proves the medical negligence through legally acceptable evidence and through   the opinion of experts and evidence of experts, medical negligence  cannot be inferred.   In the instant case the complainant failed to do the    same.   Hence we hold that the complainant failed to establish medical   negligence against the opposite parties with cogent  evidence.  Therefore  in our view the complaint is devoid of merits and liable to be dismissed.   As such the complainant is not entitled for any amount as claimed under  the complaint.

 

12.     In the result, the complaint is dismissed without costs.

 

   Typed to dictation, corrected and pronounced by us in the open Forum on this the 12^th day of November, 2008.           

 

        

 MEMBER                                MEMBER                              PRESIDENT

 

Appendix of evidence

       Witness examined

 

For complainant:                                                    For opposite parties:  Nil

 

CW.2: L. Raju

CW.3: R. Shekhar

CW.4: Dr. Someshwar Reddy

CW.5: Dr. Narsimulu

 

Exhibits marked for Complainant:-  

 

Ex.A-1:        Medical Prescription, dt.3.7.2007.

Ex.A-2:        Scanning Report.

Ex.A-3:        Xerox copy of Discharge Summary, dt.3.10.2007.

Ex.A-4:        Scanning Report, dt.10.8.2007.

Ex.A-5:        Cash receipt, dt.26.7.2007.

Ex.A-6:        Cash receipt, dt.30.7.2007.

Ex.A-7:        Cash receipt, dt.4.8.2007.

Ex.A-8:        Medical Prescription, dt.26.7.2007.

Ex.A-9:        Medical Prescription, dt.30.7.2007.

Ex.A-10:      Medical Prescription, dt.10.8.2007.

Ex.A-11:      Cash receipt, dt.10.8.2007.

Ex.A-12:      Cash receipt, dt.10.8.2007.

Ex.A-13:      Cash receipt, dt.16.8.2007.

Ex.A-14:      Cash receipt, dt.25.8.2007.

Ex.A-15:      Phone No. Slip.

   

Exhibits marked for OPs:-

   - Nil-

 

 By the Forum:

     - Nil-

                                                                                                                                                                                                                            PRESIDENT

 

 

Copy to:-

1. Sri C.S.Kumar and Sri L.Gangadhar Reddy, Advocates, Mahabubnagar for the complainant.
2. Sri K.Pratap Kumar, Advocate Mahabubnagar for the opposite parties.