BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No. 380 OF 2007 AGAINST C.C.NO.717 OF 2003 DISTRICT CONSUMER FORUM-I VISAKHAPATNAM
Between
Smt Gorsa Bangaramma W/o T.Narayana Rao
Aged about 30 yrs, Occ: Employee in A.P.State Police
R/o MIG-I-A, Sujatha Nagar, Pendurthy Mandal
Visakhapatnam
Appellant/complainant
A N D
Dr.Susantha Kumar Malik
Aged Major, occ: Doctor Consultant
Orthopedic Surgeon, Seven Hills
Hospital, Visakhapatnam
Seven Hills Hospital
Rep. by its Managing Director
Visakhapatnam
The National Insurance Company Ltd.,
rep. by its Divisional manager, Seethammapet
Dwarakanagar, Visakhapatnam
Respondents/opposite parties
Counsel for the Appellant Sri R.Dilip Kumar
Counsel for the Respondents No.1&2 Sri S.Raju
Counsel for the Respondent No.3 Sri Kota Subba Rao
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE FIFTEENTH DAY OF JUNE
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The unsuccessful complainant is the appellant. The appeal is preferred by the complainant being felt aggrieved by the order dated 21.11.2006 passed by the District Forum-I, Visakhapatnam.
The brief facts of the case as mentioned in the complaint are that the complainant was traveling by train on 24.6.2002 from Varampudi to Visakhapatnam. In the course of the travel the complainant fell down from the train and sustained severe injuries on her right knee and other parts of her body. She was shifted from the accident spot to KG Hospital Visakhapatnam and from there to the opposite party no.2 hospital. On 28.6.2002 where the doctor Alok Mujamdar had performed surgery on the abdomen of the complainant by assuring the complainant that she would recover within 15 days from the date of the operation. Before conducting the operation the doctors in the second opposite party hospital had not diagnosed the knee fracture of the complainant. After performing the operation, the first opposite party advised the complainant to attend on 18.7.2002 for MRI scan at Dolphin Diagnostic Services Limited. Accordingly, the complainant had undergone the MRI test. After examining the knee fracture, the first opposite party opined that the complainant required the replacement of knee joint with implant. On 25.7.2002 the first opposite party advised for stay of 15 days in the second opposite party hospital after the complainant has undergone the knee surgery. On 6.8.2002 the first opposite party had performed the knee surgery upon the complainant. The date of surgery was by mistake mentioned as 6.7.2002 in the legal notice instead of 6.8.2002. The complainant was suffering from knee pain immediately after the surgery was performed. The opposite party no.1 advised for an x-ray. The x-ray report dated 9.8.2002 revealed that the affixed implantation was dislocated and the operation completely failed.
Prior to the date of the operation, the first opposite party advised the complainant to take X-ray of the fractured knee joint. The x-ray revealed fracture at knee joint. Basing on the x-ray report the first opposite party had performed the operation on 6.8.2002 on the knee joint of the complainant. The medical procedure prescribed treatment for the complainant’s problem as ligaments reconstruction i.e., functioning of veins system at knee joint but not replacement of the complainant’s injured knee by way of affixing artificial steel joint i.e., I.E. Implantation. The complainant has been suffering from pain and became 100% disabled due to the negligent operation conducted by the first opposite party. The complainant is unable to walk and move from her bed. After the total knee replacement by the first opposite party the complainant is unable to bend right knee joint. In the discharge summary the opposite parties no.1 and 2 admitted the fact that the complainant was not able to bend her right knee. The failure of the opposite parties in performing operation by exercising due care was confirmed by Kamineni Hospital in the discharge summary dated 25.9.2002.
The opposite parties had implanted low grade steel joint at the injured right knee of the complainant. Due to the inefficiency of the first opposite party, the operation was completely failed resulting in shapelessness of the complainant’s leg and 100% disability to her person. The complainant is unable to attend to her duty and in future the complainant would not get the higher rank promotion. The complainant is a hard worker. She has lost the chance of promotion and increments due to the negligent surgery conducted by the opposite party no.1. The complainant is the only earning member of her family. Her husband, a home guard is not looking after her after the operation and deserted her. The complainant has been residing with her brother at Sujatha Nagar in Vizag. The complainant’s brother is looking after her. Theo opposite party no.1 advised the complainant to undergo another surgery to relocate the knee joint. Refusing to hear the advice of the opposite party no.1, the complainant got discharged on her request on 13.8.2002 from where she was admitted to Kamineni Hospital at L.B.Nagar Hyderabad. In the Kamineni Hospital the doctors conducted number of tests and certified that the total knee replacement surgery was completely failed. The complainant had undergone hinged total knee replacement orthoplasty by way of second operation on 26.8.2002. On 25.9.2002 the complainant was discharged from Kamineni Hospital. As per the advice of the doctors the complainant has been taking bed rest. Even after the second surgery the complainant is unable to bend her right knee.
The complainant had paid Rs.1,85,000/- + Rs.3,150/- to the second opposite party hospital for the first knee surgery. The complainant paid the amount through the department under the Arogya Badratha Scheme for police. The department has been deducting the amount from the complainant’s salary and remitting the amount every month to the total medical expenditure. The complainant had incurred an amount of Rs.1,85,000/- in Kamineni Hospital for the second knee surgery and the amount was paid under Arogya Badratha scheme for police. The complainant had spent a total amount of Rs.3,73,150/- for her medical expenses. The opposite party no.1 had negligently performed the knee surgery whereby the complainant’s right leg was permanently disabled. The complainant suffered mental shock.
The opposite parties no.1 and 2 filed common counter contending that on 24.6.2003 the complainant suffered a lacerated injury just below the right knee and the second opposite party ordered for x-ray of the right knee, pelvis and x-ray of chest of the complainant but did not diagnose the fracture of the patient. On 24.6.2003 the second opposite party advised for X-ray and after going through the X-ray, he diagnosed the right knee deformity of the complainant. Dr.Alok Mujumdar performed surgery on 28.6.2003. Dr.Laxman Rao, Consultant Neuro surgeon examined the patient on 24.6.2002 and shifted the patient to the operation theatre for suturing of the scalp wound and in the same sitting the second opposite party had put above knee posterior slab to the patient as the dressing of the wound. One day after her admission in the hospital the patient had abdominal distension. On the advice of the second opposite party Dr.Alok Mujumdar treated the complainant. In the case sheet he had noted that the complainant has a varus deformity (Rt) knee with ligamentus instability (Rt) knee.Aafter examining the case, Dr.Alok Mujumdar performed the surgery on 28.6.2003 upon the complainant. The head injury and abdominal injury of the complainant required urgent attention than her right knee problem. The second opposite party immobilized the right knee first with A/k plaster of paris cast and later on a posterior knee brace and therefore the right knee problem did not require urgent intervention. The MRI scan of the right knee of the patient was delayed and done on 18.7.2003 since the MRI machine was not available in the opposite party no.1 hospital at the time of admission of the complainant therein.
Shifting the patient to an outside centre for MRI of her right knee would be very risky to her life. When the patient was on 18.7.2002 little stable, she was sent for further MRI test. The clavicle of the patient was immobilized with a clavicular brace and arm punch. The x-ray of knee joint of the complainant revealed a small fracture of head of fibula (rt). Fibula is a minor supporting bone in the leg. Most of the fractures to the fibula are to be conservatively treated and left to be healed on its own. Any active intervention for fracture head of fibula (rt) side was not required. The MRI test showed complete tear of ACL and PCL ligaments, tear of lateral, collateral ligament and tear of the medial capsule. After discussing the matter with Dr.J.M.Shah, Senior Orthopaedic Surgeon working with the opposite party no.2 hospital, the complainant’s attendants were given three options, first, repair of the torn ligaments, secondly, total knee replacement with repair of the lateral and collateral ligaments and thirdly fusion (orthorodosis) of right knee.
The attendants of the complainant gave consent for Total Knee Replacement (TKR) with repair of lateral collateral ligaments. The second opposite party explained to the attendants of the complainant that any eventuality may occur during surgery or during the post operative period for which he would not be responsible for it. The brother and father of the complainant gave their consent for surgery on 5.8.2002. The complainant following the abdominal surgery was in drowsy and irritable state for one month following admission and developed psychotic symptoms which had to be treated by Dr.G.S.P.Raju, Consultant Psychiatric attached to the opposite party no.1 hospital. The patient had a lacerated wound on the anterior aspect of right knee which took a long time to heal. As the knee surgery was not an emergency procedure and to carry out it would have led to severe infections in right knee and a hazardous outcome. There was no possibility that only ligaments reconstruction of right knee would have succeeded in the case of the complainant with total knee replacement along with reconstruction of the torn lateral collateral ligaments of right knee with fascia lata of ipsilateral thigh. Preoperatively, the stability of the right knee was found to be good.
The opposite party no.2 used FS-III TKR implant from “ Sulzer Orthopaedic Ltd., company which is based at Switzerland that makes use of the best of TKR surgery implants in the word and used in more than 100 countries and 90% of the orthopedic surgeons all around the world. The implant used in the patient was a totally imported one. After performing the surgery the second opposite party ordered for x-ray of right knee on 8.8.2002 and 10.8.2002 and on receiving the x-ray the second opposite party found that there was posterior dislocation of the knee which might have occurred due to gross multidirectional instability in right knee due to multiple ligament damage. The second opposite party explaining the same to the attendants of the complainant advised for another surgery of the knee of the complainant with a hinged knee postesis . The patient attendants did not agree for free surgery. They wanted to discharge the patient from the opposite party no.2 hospital. The opposite parties no.1 and 2 are not responsible or deformity in the right knee of the complainant. The photographs of the patient taken during preoperative and postoperative period would show the severity of deformity patient had before the surgery. The opposite party no.2 tried his best to rectify the deformity of such a severe knee injury with surgery. Due to the multi directional instability of right knee with multiple ligament damage the surgery could not be a success. It does not mean that the surgery was performed negligently. The second opposite party informed the attendants of the complainant that he would perform another surgery to correct the problem but the complainant’s attendants wanted to go elsewhere for further treatment. After the third surgery also the complainant attendants alleged that she was bedridden and cannot walk at all and it does mean that the second surgery was also negligently performed. Had the complainant continued to stay with the first opposite party hospital the second opposite party would have corrected the deformity. The second opposite party had undergone training in joint replacement surgeries in New Delhi. He had been doing joint replacement surgeries independently for the last six years and Delhi and Visakhpatanm with a very high success rate. The opposite parties no.1 and 2 are neither negligent nor was there any deficiency in service on their part and prayed for dismissal of the complaint.
The opposite party no.3 contested the claim contending that the complainant has failed to establish the contractual relationship between the opposite partyno.3 and the opposite parties no.1 or 2. The opposite party no.3 has no personal knowledge of complainant’s admission on 24.6.2002 in to opposite party no.2 hospital and subsequent operation upon her on 6.8.2002 and whether that operation was successful or not. The complainant has to establish that she had spent Rs.3,73,150/- through her department under Arogya Badratha Scheme and the said amount was being deducted from her salary, otherwise she is not entitled for any amount under the medical bills. If her claim is allowed in such manner she will be doubly benefited. The complainant has not suffered 100% disability. If she was disabled by 100% she would be medically boarded out as she is in the service of police department where physical fitness is of prime importance. The complainant has not mentioned anything about the opposite party no.3 in the complaint nor did she filed the insurance policy. The opposite party no.3 is not liable to pay any compensation to the complainant.
The complainant has filed her affidavit. Exs.A1 to A14 are marked on her behalf.
On behalf of the opposite parties second opposite party and the Asst. Divisional Manager of the third opposite party insurance company N.Mrithyunjaya had filed their affidavits. The opposite party no.1 had filed the affidavits of 1) Dr.D.Lakshman Rao, 2) Dr.B.Uday Kumar, 3) Dr.A.Gopikrishna and 4) Dr.B.Kailash Rao. No documents have been filed by the opposite parties.
The counsel for the appellant/complainant and respondent 3/opposite party no.3/ have filed written arguments.
The District forum has dismissed the complaint holding that the opposite parties no.1 and 2 were not negligent and failure of operation cannot be treated as deficiency in service.
Feeling aggrieved by the order of the District Forum, the complainant has filed the appeal contending that the opposite parties no.1 and 2 admitted that they performed unsuccessful surgery on the complainant. Kamineni Hospital Hyderabad had issued report showing the failure of the first surgery. The x-ray report of the complainant revealed that if the implantation was rightly located in the right knee of the complainant the surgery would have been successful and the problem would have been solved. Instead of ligament reconstruction TKR would have solved the problem. The District Forum has not taken into consideration that x-ray report of the patient. The District Forum has ignored the petition to seek presence of experts who examined the complainant.
The point for consideration is whether the impugned order suffers from misappreciation of fact or law?
The learned counsel for the appellant has submitted that the District Forum has ignored the observation made by the doctors of Kamineni Hospital who opined that the first operation conducted by the opposite parties no.1 and 2 was a failure. He has contended that instead of ligament reconstruction, the total replacement of knee would have solved the problem. Further, he had submitted that the petition filed by the complainant I.A.No.896 of 2003 to seek presence of the experts was dismissed.
The complainant was admitted in the opposite party no.2 hospital on 24.6.2002 with the injuries to the Head, Abdomen and Lacerated injury just below her right knee. After she was admitted in the hospital, the doctor performed surgery on the abdomen of the complainants. The knee injury, according to the opposite parties no.1 and 2 has not required immediate intervention compared to the serious head and abdominal injuries. The opposite party no.1 had conducted operation of the right knee of the complainant on 6.8.2002 ,total Knee Replacement, as such was done. The learned counsel for the complainant has contended that any orthopedic surgeon would have opted for ligament reconstruction and this plea finds mention in the legal notice dated 12.4.2003 issued to the opposite parties no.1 and 2. The discharge summary issued by Kamineni Hospital, Hyderabad would indicate the operative findings as under:
Anesthesia posterior, dislocation of right knee, fixed flexion deformity of 450 deformity, ROM = 450 to 900 FS II Implant in Situ with inadequate inferior femoral cut. In the first page of discharge summary under the caption of principle diagnosis it is noted “ failed TKR right side with multi directional instability.
Relying upon the findings recorded in the discharge summary issued by the Kamineni Hospital, the learned counsel for the complainant had contended that there was negligence on the part of the opposite partyno.1. The opposite party no.2 in his counter has stated that the complainant suffered posterior dislocation of the knee which according to him might have happened due to gross multi directional instability in the right knee of the complainant. He advised the complainant to undergo knee surgery again to rectify the problem. He contended that he was not negligent in conducting the operation upon the complainant. The complaint was filed in the year 2003 and in the same year she has filed petition I.A.No.896 of 2003 which was dismissed as seen from the docket order on 7.8.2004.
The complainant contends that the petition was filed seeking presence of the experts who treated her. The opposite parties no.1 and 2 have filed the third party affidavits of doctors D.Lakshmana Rao, B.Uday Kumar, A.Gopikrishna and B.Kailas Rao. It is not clear whether the complainant has intended to cross examine the said doctors. Dr.B.Uday Kumar has stated in his affidavit that no accurate conclusion can be reached without physically seeing the injured ligament with naked eye and therefore a final decision has to be taken only after operating the joint and on the spot decision has to be taken by the surgeon on the operation table his using his knowledge and experience. Therefore, this doctor has not expressed certain opinion and the same wording is employed by Dr.A.Gopikrishna in his affidavit so also Dr.D.Lakshmana Rao has employed the same language giving the same expression opined by Dr.B.Uday Kumar. In contrast to the opinion expressed by the doctors D.Lakshmana Rao, B.Uday Kumar, A.Gopikrishna, a retired Professor of Andhra Medical College, B.Kailas Rao has stated in his affidavit that in case of damage to the ligaments with dislocation of knee joint, total knee replacement is one of the standard method of treatment. The first mentioned three doctors are of the opinion that no definite conclusion can be arrived at without physically examining the injured ligaments with naked eye whereas Dr.Kailas Rao had expressed his opinion that TKR could be resorted to in view of the damage to the ligaments with dislocation of knee joint. In the light of the contradictory views expressed by the doctors who filed affidavits on the side of the opposite parties no.1 and 2, certainly, it would be fair and justifiable to give an opportunity to the complainant to examine the doctors who treated her. The District Forum, in our opinion was not right in dismissing the petition and the complaint as well.
In a recent judgment in Civil Appeal No.2641 of 2010 ( Arising out of SLP (C) No.15084/2009) in “V.Kishan Rao Vs Nikhil Super Specialty Hospital & Another” the Hon’ble Supreme Court held
“this court however makes it clear that before the consumer forum if any of the parties wants to adduce expert evidence, the members of the for a by applying their mind to the facts and circumstances of the case and the material on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of for a especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or straight approach that each and every case must be referred to experts for evidence.”
In view of the aforesaid discussion we are of the opinion that the presence of the experts who examined the complainant is essential for adjudication of the matter. Hence, we feel it a fit case to remand the matter to the District Forum by giving opportunity to the complainant to seek the presence of the doctors whom she intends to examine as witness.
In the result the appeal is allowed setting aside the order dated 21.11.2006 of the District forum. The complaint is remitted to the District Forum to decide the matter keeping in view the observations made within three months from the date of receipt of the order. Both parties are directed to appear before the District Forum on 30.06.2010 without insisting on fresh notice. No costs.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.15.06.2010
KMK*
