IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 28th day of January, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 137/2017 (Filed on 07-06-2017)
Petitioner : Satheesan P.S.
Sree Nilayam,
Muhamma P.O.
Alappuzah - 688525
Vs.
Opposite party : (1) Dr. M.A. Thomas,
Department – Ortho 1,
Govt. Medical College,
Gandhi Nagar, Kottayam
(Adv. M.C. Suresh)
(2) The Superintendent,
Govt. Medical College,
Gandhi Nagar, Kottayam
O R D E R
Smt. Bindhu R. Member
The complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The complainant met with a bike accident and underwent treatment in Medical College Hospital, Alappuzha for the fracture in the upper portion of the hip disk of the right leg in 2005. After treatment, when the pain increased as a result of worn out hip disk, the complainant consulted with Dr. M.A. Thomas in the OP department of Kottayam Medical College. On his suggestion, the complainant got admitted in the Medical College Hospital, Kottayam for hip disk replacement surgery on 2nd May, 2016. The complainant was told that the steel disk used for replacement would cost around Rs.90,000/- As the pain was unbearable and was affecting the job of the complainant he underwent the surgery on 10th May, 2016 and was discharged on 21st May, 2016 with an advice of monthly review. To the astonishment of the complainant the doctor informed him that the surgery was failed as the disk moved up by breaking a bone. Another urgent surgery was advised and again on 1st July, the complainant underwent 2nd surgery and discharged on 13th July 2016. On 4th August 2016, on the review consultation doctor told the complainant that there was a slight improvement and as he had difficulty to stand up he was advised to undergo physiotherapy and checkup after two months. Due to unbearable pain, the complainant again consulted the doctor on 29th August, 2016. The Doctor told that there was a slight deviation in the position of the disk and advised him to use walker. On 6th October, 2016 the doctor again informed him that the 2nd surgery also failed as the disk slipped from its position and moved upward resulting in the shortening of length of his leg by 3 cm. He suggested another surgery in which part of the bone from the left leg will be used in right leg to rectify the problem. As the financial condition of the complainant was not in a good condition, he was advised to meet the doctor when the situation becomes comfortable. As the complainant lost faith in the doctor, he consulted doctor Sabin Viswanathan of specialist hospital, Ernakulum. On 09th November, 2016, the complainant underwent another surgery in the specialist hospital when the disk was screwed and was discharged on 14th November, 2016. Thereafter the complainant became able to walk.
The treatment in the Medical College and the subsequent treatment and recovery in specialist hospital shows the negligence of the doctor. The suffering of pain and mental agony of the complainant and his family is huge and not measurable. Hence this complaint is filed for compensation and for recovery of the expenses incurred.
Upon notice, opposite party 1 and 2appeared. 1st and 2nd opposite parties filed version.
The 1st opposite party resisted the allegation in the complaint by contending that the complaint is not maintainable either in law or on facts. The complainant consulted the 1st opposite party in the outpatient department with secondary osteo arthritis due to avascular necrosis right hip following fracture and dislocation of right hip caused by high velocity trauma in a road traffic accident 11 years ago. He is known case of diabetis mellitus. After proper examination and evaluation, the 1st opposite party was advised total hip replacement and accordingly the complainant was admitted on 02-05-2016. After pre-operative evaluation and pre-anaesthetic checkup, the surgery was posted to 10-05-2016. The 1st opposite party had explained all the pros and corns of hip replacement surgery and possible complications to the complainant and his relatives. It was also informed that on displacement, 2nd surgery would be required. Thus they signed written informed consent on 09-05-2016.
Under all aseptic care and precautions the first opposite party conducted uncemented total hip replacement (right) on 10/05/2016. Intra operatively it was found that normal morphology of acetabulam was altered due to old trauma and the deformity was corrected with bone graft harvested from removed femoral head. Intra operative and post-operative periods were uneventful and check X-ray was found satisfactory. Post operatively the complainant was treated with proper antibiotics, analegesics wound care and diabetic management as per protocol. On 21-05-2016 wound inspection showed clean and healthy wound and suture removal was done and he was discharged with an advice for review in Ortho outpatient department after one month. The complainant was strictly advised non weight bearing hip mobilization intended for muscle strengthening.
The complainant came for review on 20-06-2016 and as per X-ray examination it was found out that the acetabular component was dislocated from the acetabulum and he was admitted for revision surgery. In fact the complainant was advised non weight bearing at the time of discharge on 21-05-2016. Any inadequacy in following specific instruction for non-weight bearing can lead to dislocation of acetabular component and implant failure. In view of dislocation, the first opposite party advised revision surgery for fixation of acetabular component and explained the possible risk factors involved in surgery and obtained written informed consent for the revision surgery for acetabular hip replacement. Under all aseptic care and precautions the first opposite party conducted revision surgery on 01/07/2016. Intra-operatively it was found that the acetabular component migrated proximally crushing the bone and loosening the fixation with the same component but it failed and hence a cemented cup was fixed. Post-operative period was uneventful and check X-ray was satisfactory and the complainant was discharged on 13-07-16.
During follow up review, X-ray examination showed evidence of loosing of acetabular component at the bone cement interface. Hence the complainant was advised another surgical procedure with reconstruction of acetabulum with bone graft from iliac crest or with bone cage. But the complainant did not turn up for surgery for reconstruction of acetabulum with bone graft but instead he reported for getting the reimbursement bills signed by the first opposite party and lost further follow up.
The complainant himself bought implant components for total hip replacement surgery and fixation was done with due care and caution as per accepted protocol and found to be satisfactory in check X-ray. X-rays, investigation reports and OP tickets taken during the course of treatment are with the complainant. Even after satisfactory alignment and fixation with acetabular component, implant failure due to dislocation of acetabular cup and loosening of screws can happen due to factors beyond the control of the treating doctor. The complainant was given strict instruction for non-weight bearing hip mobilization for muscle strengthening and he was explained the possible compilations involved in the surgical hip replacement procedure. Mere fact that the second revision surgery done for fixation with cemented cup also failed necessitating further fixation along with bone grafting is not a pointer to attribute negligence or deficiency in service on the part of the first opposite party. Implant failure, migration of acetabular component and loosening are accepted complications involved in total hip replacement surgery and the treating surgeon is not an insurer against those risk factors. The complaint is filed on an experimental basis with a motive of undue financial gain and the complainant is not entitled to get any amount from the first opposite party simply because of the requirement of correctional surgeries due to implant failure. In the light of the above stated facts and medical reasons the first opposite party is not liable to compensate the complainant.
The complainant himself had purchased the implant for surgery. The opposite parties never told the complainant that the steel disk used for replacement would cost around Rs.90,000/- All the possible complications involved in total hip replacement surgery were well explained to the complainant before the surgery. The complainant was advised revision acetabulum on 06-10-2016 and advised partial weight bearing and early admission. Every 2nd or 3rd surgery does not imply that the earlier surgery was done in a negligent manner. It is misleading that Dr. Sabin Viswanathan fixed the disk with the help of a screw is misleading. The 1st opposite party also had used screw for fixation as per the accepted practice in total hip replacement surgery. The complainant developed problems related to implant failure and the same was not because of any fault or failure on the part of the 1st opposite party in the surgical management. The dislocation of hip component is an accepted risk and complication involved in total hip replacement surgery. Moreover, the complainant had a deformed acetabulum due to old fracture and the said deformity was a contributory factor for dislocation and consequent implant failure necessitating revision surgeries. The complainant did not develop any disability and it is admitted that he completely recovered with bone grafting as cemented accetabular hip also migrated probably because of early weight bearing in disregard to medical advice. The averment that the complainant suffered a lot due to negligence of the 1st opposite party is falsely and purposely stated with ulterior motive. The complainant had not suffered any loss due to the treatment and the expenses and loss alleged to have incurred by the complainant is exaggerated and cannot be allowed. The complaint filed on vexatious ground is liable to be dismissed.
The 2nd opposite party has filed version in which it is contended that the 2nd opposite party is not a necessary party to the complaint. The complainant had consulted with Dr. M.A. Thomas, Ortho department of Medical college hospital, Alappuzha due to fracture and dislocation of right hip consequent to an accident. Upon information of consumer complaint filed by the complainant, a department enquiry was conducted and the report was submitted before the 2nd opposite party. The hip replacement surgery was performed on the complainant on 10-05-2016 and after the surgery the condition of the complainant was satisfactory. He was discharged on 21-05-2016. Thereafter, when the complainant came for review, displacement was observed in the X-ray. This might have occurred beause of the non-compliance of the advise of the doctor that to not walk.
The complainant was informed about the displacement and again admitted for a second surgery. The bone had to be fixed using bone cement. The complainant did not concede to do the surgery by bone grafting or caging. These are all usual practices. The enquiry committee had found that usually in cup cementing no screwing is needed and the said cup is press fit. Sometimes one or two screws can be used for more fit. It is seen from the discharge card of the specialist hospital, where the complainant sought subsequent treatment that they had fixed 3 screws by bone grafting. The complainant had got all the reimbursement bills and thereafter did not approach the opposite parties for further treatement. There is no deficiency of service on the part of the opposite parties.
The complainant filed affidavit in lieu of chief examination and deposed as PW1. Exts.A1 to A10, X1 and X1(a) were marked.
Opposite party 1 filed proof affidavit without any documentary evidence. Opposite party 2 has not adduced any evidence.
Issues.
- Whether the complaint is maintainable under Consumer Protection Act,
- Whether there is any deficiency in service on the part of the opposite parties?
- If so, what are the reliefs?
Issue No.1
Case of the complainant is that he had to undergo a hip replacement surgery done by the 1st opposite party in the 2nd opposite party hospital in which due to the negligence of the 1st opposite party a second surgery was necessitated and even after that also he had to undergo another surgery in the specialist hospital by another doctor. The complainant was cured in the 3rd surgery only. So it is alleged that all these complication arose only because of the negligence and deficiency in service of the opposite parties. The opposite parties defended the allegations by stating that though the surgery was successful due to the carelessness of the complainant complications were caused. Both the surgeries were conducted according to the accepted practice.
Before going into a detailed discussion of the facts and evidence of the case, we would like to consider issue No.1 as the preliminary issue. It is necessitated to find out whether the complaint is maintainable or not before the Consumer Commission as the complainant had sought treatment from the 2nd opposite party hospital, which is a govt. medical college hospital were all the treatments are free of cost. The 1st opposite party did not receive any consideration from the complainant. In the absence of consideration for availing the service of the opposite parties the complainant cannot be put into the shoes of a consumer.
After hearing the rival contention of the complainant and the opposite parties on the maintainability issue we have perused the pleadings, documents and verdict of the apex court in detail.
The complainant was treated by the 1st opposite party in the second opposite party hospital where all the treatments are rendered free of cost. The govt. medical colleges normally do not charge for the treatments generally. Here in the case on hand, the complainant has produced several bills which he claims to have been paid to the 2nd opposite party. But on a thorough examination of documents, we find that the payments made by the complainant for X-ray and other lab tests had been paid to Hospital Development Society, which is an independent society constituted for giving better service to the patients and for the overall maintenance of the hospital premises. The said society functions upon the payment collected from the patients for their services as a separate entitiy. There is minimum charges for the lab services, room services etc. It is seen that the payment made by the complainant was not to the opposite parties but to the Hospital Development Society, who has no role in the treatment process. So it is evident that the services of the opposite parties availed by the complainant were fully free of cost.
Section 2(7) (ii) of Consumer Protection Act 2019 defines ‘consumer’ means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.
The intention of the Act itself is very clear that if a person be called as a consumer as per the provisions of the Act a consideration is a necessary element. Services availed without paying consideration will not come under the purview of the Consumer Protection Act, 2019.
Section 2(42) of the Consumer Protection Act, 2019 and Section 2 (1) (o) of the Consumer Protection Act, 1986 , ‘service’ means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
So rendering of any service free of charge cannot be included in the definition of service.
In V.P. Santha and Others Vs. Indian Medical Association, the Hon’ble Supreme Court has held “the other part of exclusionary clause relates to services rendered “free of charge”. The medical practitioners, government hospitals / nursing homes and private hospitals / nursing homes (hereinafter called “doctors and hospital”) broadly fall in three categories:
- Where services are rendered free of charge to everybody availing of the said services.
- Where charges are required to be paid by everybody availing of the said services.
- Where charges are required to be paid by persons availing of services but certain categories of person who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of the first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of ‘service’ under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons, they would clearly fall within the ambit of Section 2(1) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered by such doctors and hospital to paying patients undoubtedly falls within the ambit of Section 2(1) (o) of the Act”
In 2022 Livelaw (SC) 781 in Civil Appeal No.6208/22 the Hon’ble Apex Court has upheld the position as Consumer Protection Act, 1986; Section 2(1) (o) – Doctors and hospital who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of ‘service’ under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. Refrred to Indian Mecial Association Vs. VP. santha &Ors. (1995) 6 SCC 651.
In Nivedida Singh Vs. Asha Bharti (DR) and Others I (2022) CPJ 69 (SC) Hon’ble Supreme Court held that Consumer Protection Act, 1986 – Section 2(1) (d) (ii), 2(i) (o), 23 – Consumer – Medical officer who is employed in hospital renders service on behalf of hospital administration – Service as rendered by Hospital if does not fall within ambit of 2(1) (o) of Act being free of charge, same service cannot be treated as service under Section 2(1) (o) for reasons that it has been rendered by medical officer in hospital who receives salary for employment in hospital – services rendered by employee – medical officer to such person would continue to be service rendered free of charge and would be outside purview of Section 2(1) (o) of Act.
Learned Counsel for the appellant relies upon a judgement of this Court reported in III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (SLT SOFT) 561=(1995) 6 SCC 651 titled “Indian Medical Association v. V.P. Santha & Ors” to contended that payment for service availed is not a necessary ingredient to file a complaint under the Act. However, we find that the said argument is not tenable in view of the following findings recorded
“45. In respect of the hospitals /nursing homes (government and non-government) falling in category (i) ie. where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1) (d) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1) (o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) (o), being free of charge, the same service cannot be treated as service under Section 2(1) (o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a “consumer” under Section 2(1) (d) in respect of the service rendered to him. The service rendered by the employee medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1) (o)”.
Hence in the light of above discussion and settled law, we find that in the absence of any consideration paid by the complainant to the opposite parties, the present complaint cannot be adjudicated by this Commission. Hence the complaint is dismissed. As the issue No.1 is settled as the complaint is not maintainable, we are not considering the issue No.2 and 3 further.
Pronounced in the Open Commission on this the30th day of January, 2023
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Satheesan P.S.
Witness from the side of opposite party
Dw1- Dr. Thomas M.A.
Exhibits marked from the side of complainant
A1 – Service ID card No.1555 issued by Kerala Police Sannad
A2 – Copy of invoice No.79 dtd.10-05-16
A3- Discharge card dtd.21-05-16 by Medical College Hospital, Kottayam
A4 –Discharge card dtd.13-07-16 by Medical College Hospital, Kottayam
A5- Copy of medical certificate for leave
A6- Discharge summary dtd.14-11-16
A7- Copy of medical bills
A8-Salary slip for May 2016 (PEN 121943)
A9- Copy of medical certificate
A10 series – X-rays (6 nos.)
Court Ext.
X1 – Summary of case sheet Medical college hospital
Exhibits marked from the side of opposite party
Nil
By Order
Sd/-
Assistant Registrar
