Telangana

Khammam

CC/12/24

Racha Narender Kumar, S/o. Nageshwar Rao, Age 41 years, Occu Business, R/o. Kothagudem, Khammam District. - Complainant(s)

Versus

Dr. Ch. Krishna Prasad, S/o. Not known, Age Adult, Occu An Orthopeadic Doctor, R/o. Kothagudem Town, - Opp.Party(s)

Sri. M.A. Qayyum,

28 Aug 2018

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM

 

Dated this, the 28^th day of August, 2018

 

          CORAM:     1. Sri. P. Madhav Raja, _{B.Sc., M.Li.Sc. LL.M.,}– President

2. Sri. R. Kiran Kumar_{, B.Sc., LL.M.} – Member

                                    

C.C. No.24/2012

Between:

Racha Narendra Kumar,

S/o.Nageshwar Rao, Age:41 years,

Occu:Business, R/o.H.No.4-2-49,

Gajula Rajam Basthi, Kothagudem Town,

Khammam District.                                                 …Complainant

 

And

Dr Ch.Krishna Prasad,

Age:Adult, Occu: Orthopeadic Doctor,

R/o:Krishna Orthopedic Hospital,

M.G.Road, Kothagudem,

Khammam District.                                     …Opposite party

 

        This C.C. is coming on before us for hearing in the presence of                                 Sri. M. A. Qayyum, Advocate for complainant; and of Sri. P. Ganesh Babu, Advocate, Kothagudem for Opposite Party; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Sri. P. Madhav Raja, President)

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

 

The set of brief facts in the complaint are that the complainant is the resident of Kothagudem Town doing kirana business. On 22-05-2009 the complainant met with an accident near Sujatha Nagar village and sustained fracture of right shaft humerus and shifted to the opposite party hospital for treatment. On 27-05-2009 at 04-00 A.M., opposite party had conducted the surgery and the complainant came to know that along with his surgery the opposite party had conducted seven surgeries on that day and the said surgery had taken two hours to complete. After surgery the opposite party by observing the X-Rays film explained to the complainant that the operation was successful.   On 01-06-2009 prescribed some medicines for healing of wound and discharged the complainant. The complainant approached the opposite party with the complaint of pain in his right shaft and after examining the opposite party prescribed some medicines, even though the pain was not reduced. The complainant approached the opposite party on 02-11-2009 with pain and itching and the opposite party made believe him that it is post operative pain and is common in every case. In the month of July when the pain was intolerable on 26-07-2010, the complainant questioned about the pain and genuineness of the treatment for which the opposite party did not gave reply. The complainant consulted Dr. P. Naveen Reddy, Orthopedic Surgeon, Apollo Hospital at Hyderabad, he had examined him and opined that the surgery conducted by the opposite party was failed as the opposite party had inserted insufficient nails and small screws which were fixed to the right shaft humerus and suggested to go for another surgery. On 21-10-2010 the complainant consulted Dr. M.J.Naidu, Orthopedic Surgeon at Vijayawada as  Dr.Naveen Reddy was in America.  The said doctor was examined the complainant and opined that the surgery conducted by the opposite party was failed as the opposite party had inserted insufficient nails and small screws to the right shaft humerus and suggested to go for another surgery.  On                 25-10-2010 Dr. M.J.Naidu, Orthopedic Surgeon removed the nails inserted by the opposite party and inserted suitable nails and suitable screws to the right shaft humerus, there after the complainant become normal and painless.

 

2.       The complainant spent Rs.1,50,000/- in  the hospital of opposite party for surgery and Rs.1,50,000/- had spent in Dr. M.J.Naidu Hospital Vijayawada for second surgery and Rs.3,000/- were spent in Apollo Hospital, Hyderabad for consultation charges.

 

3.       On 21-12-2010 the complainant got issued legal notice to the opposite party but it was retuned as unclaimed for seven days. On 11-01-2011 the complainant sent another leagal notice to the opposite party, for which opposite party had given an evasive reply.  Hence complainant filed this complaint to direct the opposite party to pay an amount Rs.6,00,000/- at 24% interest per annum towards damages.

 

4.       The complainant filed a I.A.No.12/2017 to appoint Advocate Commissioner to record the evidence of Dr M.J.Naidu, Orthopedic Surgeon and mark the documents. After execution of warrant the advocate Commissioner has filed the Commissioner’s Report along with the deposition and marked documents of Dr M.J.Naidu, Orthopedic Surgeon as PW2 and the Petition was closed.

 

5.       The complainant filed I.A.No.77/2017 to direct the opposite party to submit the records and registers pertaining to the complainant surgery. The opposite party contended that the said registers are not available in his Hospital except case sheet, Recording the same the said I.A was closed.

6.       The complainant examined as PW-1.  Dr M.J.Naidu, M.S. (Ortho), Vijayawada examined as PW-2, through Commissioner Advocate.

 

7.       In support of his contention the complainant filed documents and got marked as Ex.A-1 to Ex.A-9.   

                   

Ex.A-1         is the Office copy of Legal Notice Dt:21-12-2010.

Ex.A-2         is the returned Postal Cover with receipt.

Ex.A-3         is the Office copy of another Legal Notice dt:11-01-2011.

Ex.A-4         Reply letter dt:09-02-2011 by Opposite Party.

Ex.A-5         Medical Prescriptions (57) in number

Ex.A-6         Medical Bills (85)

Ex.A-7         X-Ray films (16) in number.

Ex.A-8         is the Diagnostics Prescriptions by Dr. P. Naveen Reddy.

Ex.A-9        Discharge Summary Dt:25-10-2010 given by Dr. M.J.Naidu,

Vijayawada.

 

8.       On receipt of notice, the opposite party appeared through his counsel and filed written version and contended that the complainant was brought to his hospital on 22-05-2009 with history of road traffic accident and injury to his right arm. After taking X-Ray he was found communited fracture, shaft, and humerus bone right side in middle third region. First aid was given, complainant was admitted and explained in detail about the treatment modalities, surgical procedure of closed inter locking nailing for the said problem. Pre anesthetic advice was taken as the complainant was told about anesthetic problem due to obesity.   On 27-05-2009 after controlling the Hypertension the complainant was operated and under C-Arm X-ray closed interlocking nailing for humerus was done and proximal distal locking was done with screws. As no post operative complications were found on                       01-06-2009 the complainant was discharged at his request.   At the time of discharge fracture union possibilities regarding non union and delayed union were explained to the complainant and also advised to visit the hospital after five days for removal of stitches and accordingly stitches were removed.  The complainant was strictly advised not to drive the vehicles at least for one year, not to lift the weights, not to take total body weight on the particular limb and cautioned about re-fall and re-fracture. After very long time the complainant came with pain and with a history of fall, after taking X-Ray broken nails and screws were found then the complainant was referred for higher centers for further management.  The subsequent broken nails and screws may be due to subsequent fall but not due to improper surgery. The opposite party further contended that he was running orthopedic nursing home for last 20 years and gained much more experience in giving treatment and doing surgeries. The opposite party has taken all precautions and followed acceptable practice of medical profession for the complainant surgery and no piece of evidence to allege the negligence against the opposite party except oral allegations of the complainant.   If at all further surgery is needed it may be due to re-fall or improper care taken by the complainant after post operation period. As the opposite party was not negligent at any point of time in providing treatment to the complainant the opposite party is not liable to pay the damages to the complainant and complaint may be dismissed with costs.

 

9.       The opposite party was examined as RW-1.       

 

10.     In support of his contention, the opposite party did not file any documents.

 

11.      The complainant and opposite party filed written arguments.

12.      Heard both side oral arguments.  

13.     In view of above submissions, now the point that arose for consideration are

 

       1):-      Whether there is any deficiency of service on the part of the                  

opposite party.

       2):-      If so to what relief ?

 

Point No.1:-       

 

          According to the afore mentioned averments and basing on the material available on record it is evident that the complainant was brought to opposite party hospital on 22-05-2009 with history of road traffic accident and an injury to his right arm. After taking X-Ray he was found comminuted fracture, shaft, and humerus bone right side in middle third region. On 27-05-2009 after controlling the Hypertension the complainant was operated and under C-Arm X-ray closed inter locking nailing for humerus was done and proximal distal locking was done with screws. As no post operative complications were found on 01-06-2009 the complainant was discharged. The Opposite Party admitted in his cross examination that the 02-11-2009 prescription and x-ray film shown in page No.10 was issued by him pertaining to the complainant. The said x-ray film shows fracture is not united fully that can be termed as non union or delayed union.  It was also admitted by the Opposite Party as RW-1 in his cross examination that the x-ray film on page No.14 pertains to the complainant and it was issued by Apollo hospitals, Hyderabad on 19-08-2010 and in the x-ray film there is non-union of fracture and gap increased with broken screws and nails.  He has further admitted that there is any non-union of the injury, bone grafting is advised and further adds that it takes for normal union of the fracture stipulated time is 16 to 20 weeks, but sometimes delayed especially with co morbid conditions like obesity, hypertension and osteoporosis.  The Opposite Party in his cross examination admitted that as per Ex.A-8 Dr. Naveen Reddy, Apollo Hospitals, Hyderabad has advised bone grafting on 19-08-2010. Dr. M.J.Naidu has performed bone grafting on                   21-10-2010 to 25-10-2010. Dr. M.J.Naidu has fixed facture with a plate and with six screws and further accepted that he had fixed only two screws with a plate and added the procedure adopted by him in interlocking nail, which requires only two screws. The opposite party has not substantiated with proper proofs that the complainant is with co morbid conditions like obesity, hypertension and osteoporosis.

 

Dr. M. J. Naidu, Orthopedic Surgeon at Vijayawada was examined before Advocate Commissioner as PW-2 and he deposed in his chief examination that the complainant was joined as in patient on 21-10-2010 and underwent treatment because of non union of fracture humerus right which is 1½ year old.  The patient was underwent inter lock nailing surgery at Kothagudem.    In his cross examination deposed that there are two types of surgeries for humerus fractures, one is nailing and another is plating, where as nailing is closed operation,  no opening at fracture site and it is less complication rate and less infection rate in case of nailing. Non possibility of bone union  is 6% to18%. The patient is obese. Obesity, smoking, deficiency of the calcium, intensity of injury, diabetic, alcohol and infections are the factors of non union. The patient was advised to visit every month till the union of the fracture.  The patient has not shown previous reports and follow up treatment and deposed that the possible of breakage of implants in a case of fall on ground from the two wheeler and further deposed that  as per his observation surgery was done slandered and acceptable procedure and not found any fault with surgical technique with adequate fixation of the fracture. In case of non union load will be on the implants as such there is possibility of breakage of implant or loosening of the implant and screws.  If the fracture is not united within 3 to 4 months grafting has to be done for better union. On Re-examination by the complainant Counsel PW-2  i.e. Dr. M.J.Naidu deposed that there is time gap of one and half year between previous surgery and surgery done by him and further deposed that bone grafting was not done by the previous doctor. The opposite party relied on order of Hon’ble National Commission, New Delhi  in Baljith Singh Vs Kumar Hospital and Anr, dated: 07-03-2017 where in the Hon’ble National Commission, New Delhi observed that if the screws and plates loosened for some reasons after the surgery the doctor who conducted surgery cannot be blamed. The opposite party had failed to establish the above said contents and the factors with proper evidences. It has been found through the prescriptions i.e. Ex. A-5 the opposite party has prescribed pain killers due to which the complainant might have born the pain for the said period.  After perusal of the deposition of RW-1 it has made clear through 02-11-2009 dated x-ray film in Page No.10 that there is non-union of the bone. The 02-11-2009 prescription issued by Opposite Party does not show any remarks about the non union except prescribing three types of medicines. Dr. M. J. Naidu prescription and in his re examination as PW-2 stated that the bone grafting was not done by previous doctor to this patient/ complainant. Dr. M.J.Naidu discharge summary Ex.A-9 reveals post operative interlocking mailing humerus right with implant failure plus non union humerus. As per the opposite party and Dr. M.J. Naidu, if the fracture is not united within 3 to 4 months grafting has to be done for better union. It is made clear that the opposite party after knowing of non union of bone after 4 months of injury would have made bone grafting but as per the Ex.A-9 and PW-2 evidence bone grafting was not done by previous doctor to this patient/ complainant             

The Hon’ble National Commission, New Delhi observed in P. D. Hinduja Hospital & Medical research Center, Dr. Sanjay Agarwal v/s Veera Rohinton Kotwal & Anr II(2018) CPJ 342 (NC) observed that

            “ Medical Negligence- Duty of care- for medical professional duty starts from patient implied consent for his treatment and medical professional accepts him as a patient for treatment, irrespective of financial history of patient and covers all aspects of treatment, like writing proper case notes, performing proper clinical examination, advising necessary tests and investigation, making proper diagnosis and carry out careful treatment- when a medical   professional who possesses a certain degree of skill and knowledge decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill care and knowledge” [ paras 34,36 ],  relied on Apex court order in P.B.Desai v/s State Maharashtra & Anr IV (2013) ACC 68 (SC) and also  observed “Distinction -  Standard of care and Degree of care-  were Explained.”

 Complainant filed I.A.No.77/2017 to direct the opposite party to furnish the records and registers pertaining to the complainant surgery. The opposite party contended that the said registers are not available in his Hospital except case sheet as they become old the said register and papers pertaining to the complainant surgery were destroyed.  The complainant got issued legal notice on 21-12-2010 through his legal Counsel to the opposite party narrating all the subsequent facts of post operative period presuming to take leagal action against the opposite party and opposite party would have been cautious to safe guard the said documents to substantiate his contentions and taking plea that as they become old the said register and papers pertaining to the complainant surgery were destroyed vitiated his contentions and an adverse inference has drawn in favour of the complainant. In Savita Garg (Smt.) v/s Director, National Heart Institute (2004) 8 SCC 56 it has been observed by the Hon’ble Apex court as under:

                "Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."

       Taking the above observations of Hon’ble Apex court we are in view of that the Opposite Party is held liable for deficiency of service for conducted surgery. 

 

POINT NO.II:- The complainant filed various bills and have not properly demarcated from two different surgeries conducted by the Dr.M.J.Naidu.  The complainant filed Dr M.J.Naidu issued 22-04-2011 bill for Rs.50,000/- which shows that the date of admission is 19-04-2011 and date of discharge                     22-04-2011, but  Dr M.J.Naidu has conducted surgery on 21-10-2010 likewise there are some more bills in ambiguity.   The accident was Road traffic accident and original consolidated bill has not filed instead he had filed all individual bills, the medical reimbursement or other insurance claims have not clarified. Under this circumstances bearing in mind the observations of the Hon'ble Supreme Court order in V. Krishna Kumar Vs State of Tamil Nadu and Ors. - (2015) 9 SSC 388, a lump sum of compensation for ₹1,00,000/- may meet the ends of justice which would include the medical expenses, stated to have been expended and for the physical and mental agony undergone by him.

 

14.    In the result, the complaint is allowed in part directing the opposite party to pay Rs.1,00,000/- to the complainant  and  Rs.3,000/- towards costs within 30 days from the receipt date of this order. In the event of failure to comply with the order in payment the amount shall carry interest @ 9% p.a. from date of complaint to till its realisation.   

 (Typed to dictation, corrected and pronounced by us in the open forum, on this the 28^th day of August, 2018).

                                                                                       

                                               

                   Member                           President

                                                          District Consumer Forum, Khammam.

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

 

For Complainant                                          For Opposite party  

PW-1:- Racha Narendra Kumar.                   RW-1:- Dr.Ch.Krishna Prasad, 

 

PW-2:- Dr. M.J.Naidu, M.S. (Ortho),             Orthopedic Surgeon,      

  Vijayawada.                                     Kothagudem.

 

DOCUMENTS MARKED:-

For Complainant                                                    For Opposite party

Ex.A-1:-	is the Office copy of Legal Notice Dt:21-12-2010.		NIL
Ex.A-2:-	is the returned Postal Cover with receipt.
Ex.A-3:-	is the Office copy of another Legal Notice dt:11-01-2011.		-
Ex.A-4:-	Reply letter dt:09-02-2011 by Opposite Party.
Ex.A-5:-	Medical Prescriptions (57) in number		-
Ex.A-6:-	Medical Bills (85)
Ex.A-7:-	X-Ray films (16) in number.
Ex.A-8:-	is the Diagnostics Prescriptions by Dr.Naveen P.Reddy.
Ex.A-9:-	Discharge Summary Dt:25-10-2010 given by Dr.M.J.Naidu, Vijayawada.

                                                         Member                           President

                                                          District Consumer Forum, Khammam.