Date of Filing : 30.08.2004
Date of Order : 01.03.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.686/2004
TUESDAY THIS 1ST DAY OF MARCH 2016
N. Buhari,
S/o. Mr.M.Noordeen,
Rep. by his power agent,
Mr.M.M.Noordeen,
“Nurul Haq Manzil”,
No.2/233, Thevar Mahan Street,
Via – Periyar Salai,
Palavakkam,
Chennai 600 041. ..Complainant
..Vs..
1. Dr. P.V.Vijayarachavan,
Consultant – Ortopaedieian,
Apollo Hospitals
NO.21, Greams Lane,
Chennai 600 006.
2. M/s. Apollo Hospitals,
Rep. by its Managing Director,
NO.21, Greams Lane,
Chennai 600 006. ..Opposite parties
For the Complainant : M/s. D. Arunkumar & other
For the 1st Opposite party : M/s. C. Mani Shankar & another
For the 2nd opposite party : M/s. A.S.Chadrasekharan
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.10,00,000/- as compensation with interest to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant submit that he was met with road traffic accident on 06.10.2002 and sustained multiple injuries involving face, left knee and hand and complainant was admitted in the 2nd opposite party’s hospital and was referred to the 1st opposite party doctor who was a consultant Orthopaedician. The clinical examination revealed that the complainant has multiple abrasion over the left eyebrow and Intertrochanteric Fracture Left Leg fracture left leg. Basic investigation done were within normal limit which was elevated.
The complainant had loss of consciousness for some time Dr. Balamurugan, Consultant Neurosurgeon’s opinion was sought for and his advice was followed. For the multiple abrasion over left eyebrow Dr. Sridhar, consultant plastic surgeon opinion was obtained and he plan to wound debridement exploration and removal of foreign bodies and suturing wounds left side face were done in the presence of the 1st opposite party. After routine pre operative tests and arrangements complainant was posted to skeletal traction and wound debridement, exploration and removal of foreign bodies and suturing wounds left side were done on 07.10.2002. The complainant who is a patient was also tolerated the said treatment done, following this on the 3rd post operative way after routine pre operative work, the complainant was posted for re- construction IM Nailing left femur on 10.10.2002. The complainant also tolerated said treatment well. In the post operative period he was mobilized non weight bearing walking with walker frame and quadriceps exercise. The complainant course in the hospital was satisfactory and the wound was health and chest x-ray was satisfactory and he was stable and vital advice was given to review the 1st opposite party doctor on 21.10.2002 for the suture removal and with doctor Sridhar at 12 noon and with Dr. Balaji after 3 days with FBS and PPBS reports. In the above said treatment given to the complainant by the opposite parties, for the fracture of left femur bone, the 1st opposite party done surgery by fixing the closure inter locking reconstruction nailing and wound debridement, which was not done properly, as such after discharge from the hospital the complainant had the recurrence of the same problem and was unable to move as freely as promised by the 1st opposite party and the neorealist who were given treatment despite of complainant has followed the advices and the Respondents-osteosynthesis treatment as advised by them. Therefore the complainant was compelled to consult the another Dr. Mohondoss, Miot Hospital on 26.12.2002 and on his advice complainant admitted in the Miot Hospital on 03.01.2003. Where on 06-01-2003, complainant was operated upon the removal of implants and treated with condylar plate fixation followed with non weight quadriceps exercises and gentle knee bending exercises. As such complainant has taken treatment and further operation for the said femur fracture in Miot Hospital from 3.1.2003 and 17.10.2003 and also taken further treatment there and he was fully cured and comfortable. Further the treatment given by them for the complainant’s left femur fracture by fixing IM and re- osteosynthesis is not proper, as such the said bone is not united and caused intolerable pain and hardship to the complainant and the same was caused unnecessary medical expenses to the complainant, as such the opposite parties have committed medical negligence and deficiency of service which caused mental agony and hardship to the complainant. As such the complainant has sought for a sum of Rs.10,00,000/- as compensation with interest to the complainant. Hence the complaint.
Written Version of 1st opposite party is briefly as follows:
2. The 1st opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 1st opposite party submit that the complainant was referred to the opposite party for further management. Clinical examination revealed that patient had multiple abrasion left eyebrow and interochantric fracture left leg. Basic haematological investigation done were within normal limits except his blood sugar which was elevated.
Since the patient had loss of consciousness for some time Dr.Balamurugan, consultant Neurosurgeon’s opinion was sought and his advice followed. Because of his multiple abrasion over left eyebrow Dr. Sridhar, Consultant Plastic Surgeon opinion was sought and he planned to do wound debridement, exploration and removal of foreign bodies and suturing wounds left side face along with Dr.Vijaya Raghavan. After routine pre operative work up he was posted for skeletal traction and wound debridement, exploration and removal of foreign bodies and suturing wounds left side, on 7.10.2002. He tolerated the procedure well. Following this on the 3rd post operative day after routine pre operative work up he was posted for reconstruction IM nailing left femur on 10.10.2002. He tolerated the procedure well. He was discharged with stable vitals and advised to review with the opposite party on 21.10.2002 for suture removal and with Dr.Sridhar at 12 noon on the same day and with Dr.Balaji after three days with FBS and PPBS reports. The complainant’s blood sugar levels was 309 mg % against the normal of 120 mg %. Hence the allegation that everything was normal except a slight elevation in blood sugar level is not correct. A recording of 309 mg % against the normal level of 120 mg % cannot be construed to be normal by any standards. The facial wound debridement and skeletal traction was done on 7.10.2002 by Dr. Sridhar and the opposite party respectively. Reconstruction Nailing on Left Lower Limb done on 10.10.2002 for stabilization of intertrochanteric Fracture Left Femur by the 1st opposite party and the patient was mobilized gradually. In bed mobilization was started first and then non weight bearing walker support walking was started and patient tolerated this well. It is submitted X-ray was taken post operatively, which showed the fracture and implants in position and were satisfactory.
3. Further the 1st opposite party submit that after discharge the patient reported back for suture removal on 21.10.2002. He was sluggish in his rehabilitation and physiotherapy regime in spite of being able to move his left lower limb fairly well. These types of injuries after stabilization are not fit for full weight bearing n the initial phase of 3 to 6 weeks following the surgery. It is submitted that it is not possible to predict union so early after the treatment and as per the medical literature there is a 1.5 to 4% chance of delayed / non union & implant failure, following this procedure as a complication and if this happens alternative procedures are possible. This was also explained to the complainant when he visited for follow-up during December 2002. There was absolutely no negligence or deficiency in service and complaint is liable to be dismissed.
4.Written Version of 2nd opposite party is briefly as follows:
The 2nd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 2nd opposite party states that they are not personally aware of the treatment given to the complainant. The complainant was under the care and treatment of Dr.P.V. Vijayaraghavan i.e. the 1st opposite party. The 2nd opposite party is given to understand that the 1st opposite party would be filing a separate and detailed version giving the details of the treatment given. Hence the 2nd opposite party is not commenting on the same. However the 2nd opposite party symphathically denies all the allegations made in the complaint to strict proof of the same. The 2nd opposite party states that the 1st opposite party is specialist in his field and is capable of handling any emergency. The line of treatment followed was not at all negligent. The 2nd opposite party adopts the written version of the 1st opposite party as regards the treatment given. Hence this complaint is liable to be dismissed.
5. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A10 were marked on the side of the complainant. Proof affidavit of Opposite parties are filed and Ex.B1 to Ex.B26 were marked on the side of the opposite parties.
6. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs asked for?.
7. POINTS 1 to 2 : -
Perused the complaint filed by the complainant, the written version filed by the opposite parties, proof affidavits filed by complainant, 1st opposite party and 2nd opposite party and the documents Ex.A1 to Ex.A10 filed on the side of complainant and Ex.B1 to Ex.B26 filed on the side of opposite parties and considered both sides arguments.
8. There is no dispute that the complainant was met with road traffic accident on 06.10.2002 and sustained multiple injuries involving face, left knee and hand and complainant was admitted in the 2nd opposite party’s hospital and was referred to the 1st opposite party doctor who was a consultant Orthopaedician. The clinical examination revealed that the complainant has multiple abrasion over the left eyebrow and Intertrochanteric Fracture Left Leg fracture left leg. Basic investigation done were within normal limit which was elevated.
The complainant has loss of consciousness for some time Dr. Balamurugan, Consultant Neurosurgeon’s opinion was sought for and his advice was followed. For the multiple abrasion over left eyebrow Dr. Sridhar, consultant plastic surgeon opinion was obtained and he plan to wound debridement exploration and removal of foreign bodies and suturing wounds left side face were done in the presence of the 1st opposite party. After routine pre operative tests and arrangements complainant was posted to skeletal traction and wound debridement, exploration and removal of foreign bodies and suturing wounds left side were done on 07.10.2002. The complainant who is a patient was also tolerated the said treatment done, following this on the 3rd post operative way after routine pre operative work, the complainant was posted for re- construction IM Nailing left femur on 10.10.2002. The complainant also tolerated said treatment well. In the post operative period he was mobilized non weight bearing walking with walker frame and quadriceps exercise. The complainant course in the hospital was satisfactory and the wound was health and chest x-ray was satisfactory and he was stable and vital advice was given and to review the 1st opposite party doctor on 21.10.2002 for the suture removal and with doctor Sridhar at 12 noon and with Dr. Balaji after 3 days with FBS and PPBS reports. The above said facts relating to the treatment given and necessary medical and lab tests were taken for the complainant and the surgery done for the complainant on 07.10.2002 and 10.10.2002 and also the treatment given as post operative in the hospital in the 2nd opposite party are all reveals from the hospital records and discharge summaries filed on the side of complainant as Ex.A1 to Ex.A5 and documents filed on the side of opposite parties as Ex.B1 to Ex.B24.
9. Whereas the complainant has raised grievance in the complaint against the opposite parties in the above said treatment given to the complainant by the opposite parties, for the fracture of left femur bone, the 1st opposite party done surgery by fixing the closure inter locking reconstruction nailing and wound debridement, which was not done properly, as such after discharge from the hospital the complainant had the recurrence of the same problem and was unable to move as freely as promised by the 1st opposite party and the neorealist who were given treatment despite of complainant has followed the advices and the Respondents-osteosynthesis treatment as advised by them. Therefore the complainant was compelled to consult the another Dr. Mohondoss, Miot Hospital on 26.12.2002 and on his advice complainant admitted in the Miot Hospital on 03.01.2003. Where on 06.01.2003, complainant was operated upon the removal of implants and treated with condylar plate fixation followed with non weight quadriceps exercises and gentle knee bending exercises. As such complainant has taken treatment and further operation for the said femur fracture in Miot Hospital from 3.1.2003 and 17.10.2003 and also taken further treatment there and he was fully cured and comfortable. The discharge summary Ex.A6 and Ex.A7 are reveals the above facts that the complainant has once again taken treatment in the Miot Hospital where the IM plates fixed for the fracture of the femur was removed and condylar plate fixation was done by the another surgery.
10. The complainant has raised allegation against the opposite parties that the treatment given by them for the complainant’s left femur fracture by fixing IM and re- osteosynthesis is not proper, as such the said bone is not united and caused intolerable pain and hardship to the complainant and the same was caused unnecessary medical expenses to the complainant, as such the opposite parties have committed medical negligence and deficiency of service which caused the complainant hard ship and mental agony.
11. Whereas the opposite parties resisted the said allegations made by the complainant by stating that the treatment given for the left femur fracture by the opposite parties is one of the standard method known to the medical literature i.e implating IM for the stabilization of the bone and the post operation treatment given in the hospital are all proper which is up to the standard and the complainant was discharged after observation as mentioned in the discharge summary Ex.A4 with future advise. Whereas after discharge the patient reported for suture removal on 21.10.2002. The complainant sluggish in his rehabilitation and physiotherapy regime thereby inspite of being able to move his left lower limb fairly well. These type of injuries after stabilization were not fit for full weight bearing in the initial Phase 3-6 weeks following the surgery. Though the complainant was moving with walker support he was found to be less co-operative. Thus opposite parties does not aware under whose case he followed up the psychotherapy that was advised and this opposite parties makes the allegation that the complainant health was deteriorating and was recurring of same problem. And further stated it is not possible to predict union of the fracture of the bone so early after the treatment as per the medical treatment there is a 1.5% to 4% chance of delayed non union and implant failure, following this procedure as a complication and if this happens alternative procedure are possible. This was also explained to the complainant when the complainant visited for follow up during December 2002. As a matter of fact the complainant was advised to come back for readmission and assessing but he did not come as advised. Further contended that complainant being the known diabetes patient and not followed the advice given by the 1st opposite party, complainant having voluntarily went to another hospital and taken alternative treatment, blaming the opposite parties about the treatment given are all baseless and not supported by medical evidence. As such the allegation are false, and there is no deficiency or medical negligence in the treatment given to the complainant by the opposite parties and not liable for any claim made by the complainant.
12. The learned counsel for the opposite parties, has argued that the complainant has not proved the operation done by this opposite parties was negligent or fault. The complainant has not examined by any medical expert to prove his contention. The complainant ought to prove that the doctor did not follow the standard procedure and his contact fell below that of the standards of reasonably competent practitioner in his field. The opposite parties counsel in his arguments also placed reliance on the judgment of the Hon’ble Supreme Court in the case of
Jacob Mathew
–vs-
State of Punjab and another
reported in (2005) 6 SCC 1 (Paras 19,24,26 and 32)
13. On going through the hospital records for the treatment given by the opposite parties to the complainant it reveals that the complainant was admitted in the opposite parties hospital for the multiple injuries suffered by him at road traffic accident. The complainant was treated not only for left femur fracture injury but also the other injuries such as Skelton traction and wound explosion of removal of foreign bodies and sustaining wounds on left side of the face and not only treated by the 1st opposite party doctor and also other Doctors Dr. Sridharan, consultant plastic surgeon and Dr. V. Balaji consultant Diabealitgist, the said hospital records also reveals that the complainant was known diabetics patient and treatment was also attended on that aspect. Further the complainant has not raised any grievance about the treatment given for other injuries in respect of the injuries caused in the face.
14. Further the counsel appearing for the complainant has argued that as stated by the opposite party, the 1st opposite party’s doctor is well qualified doctor as consultant Orthopaedician, the surgery contacted by him along with other doctors and treatment given for the left side femur fracture i.e IM Nailing is one of the standard treatment recognized in the field of orthopedic treatment as per the medical literatures Annexure A and Annexure B i.e Campbell’s Operative Orthopaedics Volume 3 and Apley’s System of Orthopaedics and fractures - by Louis Soloumn David J. Warwick, Selvadurai Nayaga respectively are all acceptable. Whereas it is mentioned that the healing is natural process and there is no 100% guarantee, that the fracture will unite. Further, for the allegation made by the complainant that the IM Nail fixation is not properly done by the 1st opp. party as such this caused non union of bone and also caused unbearable pain and hardship to the complainant there is no proper medical evidence on the side of complainant. According to the discharge summary Ex.A4 it was mentioned that even after the said fixation of IM nailing for the femur fracture during the post operational treatment and at the time of discharge of the complainant from the hospital, the complainant was found comfortable without any complaint. Further even on 21-10-2002 also when the complainant came for the suture removal to the 1st opposite party there is no complaint regarding the fixation of IM for the femur fracture said to have been made by the complainant. Further as contended by the 1st opposite party in his proof affidavit as well as in his written version though the complainant was advised during the December 2002 when the complainant made follow up visit for readmission and for assessment with regard to the union of fracture bone the complainant has not come forward to follow the same. It is also pertinent to mention after discharge from the hospital the complainant has not made any complaint with regard to the treatment given for the fracture femur bone to the complainant directly before the complainant said to have been consulted Dr. Mohandass of Miot Hospital. It is also again pertinent to mention that as contended by the opposite parties since there is no averments or evidence on the side of complainant with regard to the physiotherapy treatment after discharge from the opposite party hospital will admitting in the Miot Hospital, and raising doubt about the physiotherapy treatment as well as other follow up action if any against the advice of the doctors would have caused the problem suffered by the complainant and non union of the fracture of bone. Therefore the mere allegation made by the complainant against the opposite parties that they have not properly fixed the IM nailing for the left femur bone fracture as such it has not united properly is not acceptable. Since the union of the fracture above mentioned in the medical literature Annexure A and B is need for period of 6 weeks and also chances of non union depending upon the different physical medical condition of the patient the complainant. The discharge summary given b y the Miot hospital EX.A7 reveals only that the IM nailing was removed and in alternative candlyar plate anti biotic injection Sefogram was given as treatment. There is no complaint is mentioned in the discharge summary that the IM Nailing fixation already done for the complainant fracture was improper or defective one. Therefore we are of the considered view that there is no proof of evidence on the side of the complainant for the allegation made in the complaint against the opposite parties that the opposite parties have not properly fixed the IM Nailing for the left femur fracture as such the said fracture of the bone was not united.
15. Further as contended by the opposite parties the 2nd and alternative treatment taken in the Miot Hospital for the said left femur fracture i.e removal of IM nailing already fixed and in alternative the candlyar plate fixation was given is of the another method of treatment which would have been done if the complainant would have properly approached or followed the 1st opposite party advice, as follow up. Having failed to do the same complainant voluntarily have went to the Miot Hospital and taken alternative treatment for which the opposite parties are not liable to be blamed. Further as contended by the opposite parties the treatment said to have been given in the Miot Hospital is not considered to be a corrective procedure, but appears to be an alternative treatment as stated above.
16. The learned counsel appearing for the opposite parties has also placed reliance on the judgment rendered by the Hon’ble Supreme Court published in 1996 2 SCC page 634
“In Achutrao Harinbhau Khodwa
–Vs-
State of Maharashtra the court noticed that
in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment is available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with dir dace and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.” The said decision cited by the opposite parties counsel is squarely applicable in this case in support of the contention raised by the opposite parties”..
Therefore we are of the considered view as discussed above that the complainant has miserably failed to prove the medical negligence and deficiency of service attributed against the opposite parties, as such the complainant is not entitled for any relief sought for in the complaint against the opposite parties and the complaint is liable to be dismissed. Considering the facts and circumstances of the case the parties are to bear their own costs. Accordingly the points 1 and 2 are answered.
In the result, this complaint is dismissed. No costs.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 1st day of March 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 6.10.2002 - Copy of Registration of receipt of 2nd opposite party
Ex.A2- - - Copy of Series of clinical reports of 2nd opposite party
Ex.A3- - - Copy of series of Radiological reports of 2nd opposite party
Ex.A4- 15.10.2002 – Copy of Discharge Summary.
Ex.A5- - - Copy of Series of bills
Ex.A6- 16.12.2002 - Copy of Advice report of Dr.P.V.A.Mohandoss of MIOT
Hospital.
Ex.A7- 17.1.2003 - Copy of Discharge summary.
Ex.A8- 9.3.2004 - Copy of complainant’s letter to 1st opposite party
Ex.A9- 26.3.2004 - Copy of reply of the 1st opposite party
Ex.A10- 6.8.2004 - Copy of power of attorney.
Opposite parties’ Exhibits:-
Ex.B1- 8.10.2002 - Copy of Admission form.
Ex.B2- - - Copy of History and findings on admission.
Ex.B3- - - Copy of General information.
Ex.B4- - - Copy of Haemotogy reports.
Ex.B5- - - Copy of Microbiology report.
Ex.B6- - - Copy of Biochemistry report.
Ex.B7- - - Copy of Radiology and imaging reports.
Ex.B8- - - Copy of Case sheet.
Ex.B9- - - Copy of consent sheet.
Ex.B10- - - Copy of preoperative checklist.
Ex.B11- - - Copy of Anesthesiology report.
Ex.B12- - - Copy of operation notes.
Ex.B13- - - Copy of post operative orders.
Ex.B14- - -Copy of post operative recovery chart.
Ex.B15- - - Copy of Consultation request.
Ex.B16- - - Copy of progress report.
Ex.B17- - - Copy of investigation Chart.
Ex.B18- - - Copy of ICU CCU chart.
Ex.B19- - - Copy of Nurses’ chart.
Ex.B20- - - Copy of clinical chart.
Ex.B21- - - Copy of Drug chart.
Ex.B22- - - Copy of IV fluid Chart.
Ex.B23- - - Copy of Diabetes monitor chart.
Ex.B24- - - Copy of Neuro observation chart.
Ex.B25- - - Copy of Discharge summary.
Ex.B26- - - Copy of Acknowledgement.
MEMBER-I MEMBER-II PRESIDENT.
