This Complaint coming up before us for hearing on 31-10-12 in the presence of Sri G.S. R. Reddy, advocate for complainant and of Sri G. Ramalingeswara Rao, advocate for opposite party, upon perusing the material on record and after hearing both sides and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri A. Hazarath Rao, President:- The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking refund of Rs.1,35,000/- given to the opposite party as fees and hospital charges; Rs.1,50,000/- being the amount spent by the complainant for his treatment in Hyderabad; Rs.5,00,000/- as damages towards loss of business together with interest besides costs.
2. In brief the averments of the complaint are these:
The complainant is a diabetic patient. The opposite party is specialized in plastic surgery and is running a nursing home under the name and style of M/s Srinivasa Nursing Home. The complainant on 11-07-09 approached the opposite party for treatment of non healing ulcer on left lower leg. The complainant took treatment with the opposite party as in patient from 11-07-09 to 12-08-09. The opposite party conducted some minor surgeries during treatment. The complainant learnt that the opposite party did multiple punctures to let out pus from the foot and thigh and debridemet of ulcer and done the grafting of ulcer. The opposite party informed the complainant that he gave vacuumed assisted wound care. The opposite party issued receipt for Rs.42,000/- though received Rs.62,000/- due to tax problems. The complainant spent Rs.6,000/- towards investigation charges and further spent Rs.18,000/- towards medicines and Rs.30,000/- for attendants. The complainant’s condition did not improve inspite of treatment and his health became worse. The complainant again admitted in the hospital of the opposite party on 07-10-09 as in patient. The complainant took treatment as in patient on the second occasion till 22-10-09. On the date of discharge the opposite party issued a certificate showing the treatment given by him. The opposite party advised the complainant to come for review within five days. On the second occasion the opposite party received Rs.14,200/- for his treatment, charges, rent etc. The complainant spent Rs.400/- towards investigation charges and Rs.3750/- for medicines. The complainant returned to his house though the ulcer was not cured, took bed rest and approached the opposite party within five days as advised and underwent dressing. But the complainant did not find any improvement. The complainant on 14-11-09 approached the opposite party. The opposite party advised the complainant to undergo micro vascular surgery. On 19-11-09 the complainant approached Dr. N.G. Sastry, consultant diabetologist at Hyderabad and he thoroughly investigated the case history of the complainant and advised him to take x-ray and colour Doppler test of left lower limb. On 19-11-09 in Focus Diagnostic Centre, Hyderabad x-ray of left leg, AP and lateral view of the complainant were taken. In the x-ray on 19-11-09 it was found that there was radoopaque bandage clips. In the colour Doppler test it was found that dilation of SOV in the region of lateral aspect of middle 1/3rd of left lower leg with intraluminal echogenic area suggestive of thrombus and evidence of perforator in the lateral aspect of 1/3rd left lower leg. The opposite party thus negligently treated the complainant and the treatment adopted by him was incorrect. In the surgery conducted by the opposite party the skin staples/clips were not removed from inner skin due to which the complainant suffered a lot mentally and physically. Dr. D. Prasad did surgery on 30-11-09 and removed staples and further did the surgery of trendcien, berg legatation and multiple sabfacial legatation of left leg was done under spinal anesthesia on 24-11-09. For the said surgeries the complainant spent Rs.1,00,000/- besides Rs.50,000/- for the expenses of attendants in Hyderabad. While doing surgery the opposite party ignored the skin staples fixed in the inner skin layers and due to that the wound was not healed and the complainant was confined to bed and suffered with severe pain. The opposite party negligently advised the complainant to undergo micro vascular surgery. The complainant sustained a loss of Rs.5,00,000/- due to his absence in business for which the opposite party is liable to reimburse as damages. The opposite party gave evasive replies for oral demands of the complainant. As a last resort the complainant got issued a legal notice on 13-02-10 demanding him to pay Rs.7,85,000/-. The opposite party gave a reply with false allegations. The conduct of the opposite party amounted to deficiency of service. The complaint therefore be allowed.
3. The contention of the opposite party in brief is hereunder:
The opposite party is a highly qualified and reputed plastic surgeon and an expert in his own field. The opposite party is diligent and highly professional in his approach to his patients and treats them with patience, love and affection. The opposite party provided treatment to the complainant in accordance with accepted medical procedure and acted diligently true to his skills and qualifications. At the time of admission in to the hospital of opposite party the complainant was brought in wheel chair and his condition was toxic. The complainant was running high temperature with chills and rigors, breathlessness accompanied by swelling of the entire lower limb. The complainant is obese and is suffering from chronic diabetes with stocky neck. The opposite party followed the accepted procedure in draining out the pus by performing surgery under spinal anesthesia. The reason for getting pus into complainant’s lower limb is due to presence of ulcer in the leg. The complainant informed the opposite party that he developed ulcer as a consequence of road accident that took place about an year prior to approaching him and did not take proper care. The complainant had not taken care of ulcer for about an year and is now trying to blame doctors for his negligence. Aggravation of the condition was due to poor diabetes control, diet control, poor lifestyle management and obesity. Any ulcer which was left without complete treatment for one long year is difficult to heal. Surgery at earlier stage could have improved his chances of better cure. Chronic ulcers are wounds that fail to heal due to various factors. The opposite party being a plastic surgeon is concerned with wound heal. It is an established medical fact that chronic wound ulcer management is always in stages i.e., repeat graft over chronic ulcers is described management for which patients compliance is of fore most importance. Any time during examination or treatment of the patient the opposite party did not see any reason to suspect venous problem. There are no prominent veins clinically either in the long saphenous or short saphenous veins on clinical examination to suspect venous problem. The complainant was in toxic condition and not suitable for venous Doppler. In the process of treatment in the 1st stage apart from reducing the pus skin grafting was done and the 1st stage was successful. The opposite party did re-grafting when the complainant approached for re-ulceration and did major surgeries competently. Graft had partial breakdown i.e., in the course of nature of illness and not due to technical fault of opposite party. Pins/staples have been placed for holding skin edges together and they could have been removed at appropriate time had the complainant revisited the opposite party for regular follow up as per advice and medical procedure. Complainant never followed the advice of the opposite party in visiting him regularly for further treatment after 2nd surgery. Complainant never complained of any unbearable pain due to pins during his stay in the hospital and at any time. It is a known fact that the pins get buried by proliferating granulation tissue. The color Doppler done at Hyderabad and subsequent surgery performed at Hyderabad clearly revealed problems at short saphenous vein. The surgery was done in the region of great saphenous vein which is far away from the stated location of problem. The opposite party on 14-11-09 advised complainant’s son to take his father to a higher centre for micro vascular surgery. Complainant underwent open venous surgery which is un-indicated. It is not clear from the averments of the complaint as to the qualification of the doctor who was said to have treated complainant and performed surgery on 30-11-09 and removed the staples and further performed surgery of trendlenberg ligation and multiple sabfacial of ligation of left leg. The surgery which was done at Hyderabad would not add to wound healing and may further have delayed or worsened the chance of healing. The staples at no point of time would cause any problem as alleged by the complainant. The opposite party is not aware what transpired at Hyderabad and the expenses incurred there. The complainant exaggerated his claim to have unlawful gain and also made baseless and defamatory allegations against the opposite party. Rest of the allegations contra mentioned in the complaint are all false and are invented by the complainant to suit his claim.
4. Exs.A-1 to A-20 and Exs.B-1 and B-2 on behalf of complainant and opposite party were marked respectively besides Ex.X-1.
5. Now the points that arose for consideration in this complaint are:
1. Whether the opposite party committed deficiency of service by treating the complainant negligently?
2. Whether the complainant is entitled to compensation?
3. To what relief?
6. Exs.A-10 to A-20 were marked subject to objection raised by the opposite party. The complainant filed IA 63 of 2012 to reopen his side for further cross examination of the opposite party and IA 64 of 2012 for further cross examination of the opposite party. This Forum on 06-03-12 dismissed both the IAs. The complainant preferred RPs Nos.39 of 2012 and 41 of 2012 before the AP. State Consumer Disputes Redressal Commission and both revision petitions were dismissed. Again the petitioner tried to mark Exs.A-10 to A-20 inspite of orders of this Forum in IA 63 of 2012 and 64 of 2012 and RPs 39 of 2012 and 41 of 2012. Under those circumstances, the objection raised by the learned counsel for the opposite party in raising objection for marking Exs.A-10 to A-20 is having considerable force and objection is tenable. Therefore Exs.A-10 to A-20 cannot be looked into in our considered opinion.
7. Admitted facts in this case are these:
1. The complainant is diabetic.
2. The complainant approached the opposite party for non healing ulcer on left lower leg.
3. The opposite party treated the complainant from 11-07-09 to 12-08-09 and 07-10-09 to 22-10-09.
4. The opposite party issued certificate on 14-11-09 referring the complainant to higher centre for micro vascular surgery (Ex.A-3).
5. The opposite party issued receipts on 12-08-09 and 22-10-09 (Exs.A-4 and A-5)
6. Exchange of notices between the complainant and the opposite party (Ex.B-1 and B-2).
7. This Forum received expert opinion from a panel of doctors of GGH, Guntur (Ex.X-1).
8. The opposite party placed pins/staples in the body of complainant and did not remove them.
8. POINT No.1:- Medical negligence cannot be inferred. It is well settled in law that initial burden is on the complainant to establish negligence or deficiency of service on the part of the opposite party in treating him for the complained ailment and thereafter the burden shifts to the opposite party to establish the absence of negligence or deficiency of service in treating the complainant.
9. The complainant did not examine any expert to prove prima facie that the treatment given by the opposite party was not proper and non removal of pins/staples caused/exaggerated his suffering. After cross examining the opposite party the complainant on 06-01-12 reported no further evidence. On the other hand, the complainant as well as the opposite party relied on Ex.X-1 expert report to corroborate their respective contentions.
10. The expert committee arrived at the following conclusions and they are extracted below for better appreciation:
“1. Initial condition what appears to be a diabetic cellulites was treated appropriately by the surgeon at Srinivasa Nursing Home, Guntur.
2. Recurrence in the diabetic ulcer may occur due to
a. Persisting local trophic changes and local infection
b. improper graft care (cleaning) by the patient and poort local hygiene.
c. Foreign body in the wound (Radio opaque clips).
3. Lower limb varicosities may be an associated condition, made out on further investigations done for failure of graft to heal the wound after second surgery”.
11. Ulcer means a local defect or excavation of the surface or an organ or tissue produced by sloughing of necrotic inflammatory tissue. Leg ulcer is a long-lasting (chronic) wound on leg or foot. Common types of leg ulcer are: (a) arterial leg ulcers – caused by poor blood circulation in the arteries. (b) diabetic leg ulcers – caused by high blood sugar associated with diabetes, (c) vasculitic leg ulcers – associated with chronic inflammatory disorders such as Rheumatic arthritis and lupus, (d) traumatic leg ulcers – caused by injury to the leg and (e) malignant leg ulcers – arising from a tumor of the skin of the leg
12. The symptoms of a venous leg ulcer include pain, itching and swelling on the affected leg. There may also be other signs such as discolored or hardened skin around the ulcer. A venous leg ulcer is the most common type of leg ulcer accounting for 80-85% of all cases. Venous leg ulcers develop when persistently high blood pressure in the veins of the legs causes damage to the skin which eventually breaks down and forms an ulcer.
13. Diabetes is a long – term condition caused by too much glucose (sugar) in the blood. The main symptoms of diabetes are a) feeling very thirsty b) urinating frequently particularly at night c) feeling very tired d) weight loss and e) loss of muscle bulk. The main two types of diabetes are Type-I diabetes and Type-II diabetes. Type-I diabetes can develop quickly over weeks or even days. Many people have type-II diabetes for years without realizing because early symptoms tend to be general.
14. Diabetes mellitus is a metabolic disorder and hence the defects observed in diabetic wound healing are thought to be the result of altered protein and lipid metabolism and thereby abnormal granulation tissue formation. Increased glucose levels in the body end up in uncontrolled covalent bonding of aldose sugars to a protein or lipid without any normal glycosylation enzymes. Debridement is the process to remove dead skin and tissue. Proper debridement is necessary to decrease the risk of infection and reduce peri-wound pressure, which can impede normal wound contraction and healing. After debridement, the wound should be irrigated with saline or cleanser, and a dressing should be applied.
15. Wound healing is a ‘make-up’ phenomenon for the portion of tissue that gets destroyed in any open or closed injury to the skin. Being a natural phenomenon, wound healing is usually taken care of by the body’s innate mechanism of action that works reliably most of the time. Key feature of wound healing is stepwise repair of lost extracellular matrix (ECM) that forms largest component of dermal skin layer. Therefore controlled and accurate rebuilding becomes essential to avoid under or over healing that may lead to various abnormalities. But in some cases, certain disorders or physiological insult disturbs wound healing process that otherwise goes very smoothly in an orderly manner. Diabetes mellitus is one such metabolic disorder that impedes normal steps of wound healing process. Many histopathological studies show prolonged inflammatory phase in diabetic wounds, which causes delay in the formation of mature granulation tissue and a parallel reduction in wound tensile strength.
16. The expert committee in Ex.X-1 opined that the opposite party properly treated diabetic cellulites. Ex.A-2 dated 22-10-09 revealed that the complainant approached the opposite party on 07-10-09 with history of ulcer leg previously treated by him. It means that the ulcer again reoccurred. On both the occasions the opposite party did debridement and skin grafting. Follow up treatment was not mentioned in Ex.A-1 dated 12-08-09.
17. The complainant approaching the opposite party again for the earlier complaint nearly after two months on 07-10-09 leads us to draw an inference that he was comfortable and satisfied with the treatment given by the opposite party. The expert committee in its conclusions (Ex.X-1) observed that recurrence in diabetic ulcer may occur due to a) persisting local tropical changes and local infection b) improper grafting (cleaning) by the patient and poor local hygiene and c) foreign body in the wound (radio opaque clips). The conditions a) persisting local trophic changes and local infection b) improper grafting (cleaning) by the patient and poor local hygiene are not within the control and management of the opposite party.
18. The opposite party in its version and affidavit mentioned that pins/staples have been placed for holding skin together. Neither the complainant nor the opposite party mentioned when those pins/staples have been placed for holding skin on the 1st occasion or 2nd occasion. The opposite party during cross examination admitted that he used staples for normal skin edges to hold them together and also to fix the skin graft to the surrounding skin. The complainant though cross examined the opposite party failed to elicit the same. The opposite party in its version and affidavit mentioned that pins/staples could have been removed at appropriate time had the complainant revisited him regularly for follow up and further treatment as per advice and medical procedure. The above admission of the opposite party revealed that the pins/staples placed by him were not removed either on 22-08-09 or 22-10-09 or 14-11-09.
19. Under Ex.A-2 the opposite party advised the complainant to come back in five days for continuous treatment with an advice of bed rest and dressing. The complainant in his complaint and affidavit mentioned that he approached the opposite party within five days as advised and underwent dressing which the opposite party stoutly denied. The complainant did not place any material before this Forum to show that he approached the opposite party after 22-10-09. No such endorsement was found either on Ex.A-1 or A-2.
20. The expert committee in its report observed that presence of radio opaque bandage clips may be a cause for non healing of ulcer in its conclusions. Staples are used to close both internal and skin wounds. In the material furnished to this Forum by the opposite party on surgical staple it was mentioned that the use of staples for skin closure is contra indicated when it is not possible to maintain atleast a 5 mm distance from the stapled skin to underlying bones, vessels or internal organs. The expert committee reiterated paragraph (9) in its conclusions at 2(c) i.e., recurrence in the diabetic ulcer may occur due to presence of foreign body in the wound (radio opaque clips). It is not the opinion of the expert committee that the presence of radio opaque clips alone is the cause for recurrence of diabetic ulcer as contended by the complainant. The contention of the opposite party is that the treatment given by him was incomplete. The complainant ought to have filed affidavit of the doctor who removed those clips to support his contention. The complainant failed to do such exercise. Even the discharge summary given by Dr. Mohan’s Diabetic Specialties Centre filed by the complainant along with the complaint was incomplete. The complainant did not take proper care to file complete discharge summary issued by Dr. Mohan’s Diabetic Specialties Centre, either at the time of filing complaint or when cross examined the opposite party and thus failed to show that the opposite party treated him improperly or negligently. Under those circumstances, the contention of the complainant in our considered opinion is devoid of merit (as Exs.A-10 to A-20 were filed at a belated stage).
21. The expert committee in its conclusions at (3) mentioned that lower limb varicosities may be an associated condition made out on further investigations done for failure of graft to heal the wound after second surgery. As already observed the healing mechanism of a person suffering from diabetes mellitus is not normal for which the opposite party cannot be held liable. The expert committee in its report no where mentioned that the opposite party did not follow the accepted procedure in treating the complainant.
22. The complainant relied on the decision reported in B. Srikanth vs. Dr. H.M. Shiva Kumar 2010 (1) ALD (Cons.) 6 (NC). The above decision in our considered opinion is not applicable in view of Ex.X-1 report. We therefore opine that the opposite party was not negligent in treating the complainant and thereby hold him not guilty of deficiency of service. We therefore answer this point against the complainant.
23. POINT No.2:- In view of above findings, the complainant is not entitled to any compensation. We therefore answer this point also against the complainant.
24. POINT No.3:- In view of above findings, in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 9th day of November, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Dr. Garlapati Sateesh Kumar (opposite party) was cross examined by the counsel for the complainant.
DOCUMENTS MARKED
For Complainant :
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
A1 | 12-08-09 | Copy of discharge summary issued by opposite party |
A2 | 22-10-09 | Copy of discharge summary issued by opposite party |
A3 | 14-11-09 | Copy of letter issued by opposite party |
A4 | 12-08-09 | Copy of bill for Rs.45,000/- issued by opposite party |
A5 | 22-10-09 | Copy of bill for Rs.14,200/- issued by opposite party |
A6 | - | x- ray |
A7 | 29-07-09 | Copy of report- USG-Left lower limb-arterial Doppler |
A8 | 19-11-09 | Copy of report of x-ray |
A9 | 19-11-09 | Copy of report of colour Doppler study of left lower limb |
Subject to objections:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
A10 | 30-11-09 | Copy of medical certificate issued by Sai vani hospitals limited, Hyderabad |
A11 | 30-11-09 | Copy of bill for Rs.3500/- issued by Sai vani hospitals limited, Hyderabad |
A12 | 29-04-10 | Report of colour Doppler study of right lower limb |
A13 | 29-04-10 | Scan reports |
A14 | 29-04-10 | Scan reports |
A15 | 04-12-09 | Copy of bill for Rs.12,880/- issued by Dr. Mohan’s diabetes specialities centre |
A16 | 04-12-09 | Copy of bill for Rs.18,980/- issued by Dr. Mohan’s diabetes specialities centre |
A17 | 04-12-09 | Copy of bill for Rs.1300/- issued by Dr. Ganesha’s Super Speciality Centre, Hyderabad |
A18 | 04-12-09 | Copy of cash receipt for Rs.14,000/- issued by Dr. Mohan’s diabetes specialities centre |
A19 | - | Copy of surgery bill for Rs.26,880/- issued by Dr. Mohan’s diabetes specialities centre |
A20 | - | Copy of list of transactions as on 04-12-09 |
For Opposite Party:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
B1 | 13-02-10 | Office Copy of legal notice got issued on b/o complainant to the opposite party |
B2 | 05-03-10 | Office copy of reply legal notice got issued on b/o of opposite party to the counsel for complainant |
By the Forum:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
X1 | 27-05-11 | Opinion of committee of specialized doctors of GGH, Guntur |
PRESIDENT
