The factual matrix of the case as can be gathered from the complaint is that the Complainant consulted the O.P. No. 1 with a severe pain in his abdomen. The O.P. No. 1 after examination advised him to undergo Hernioplasty and accordingly the Complainant admitted in the Rithari Health Care Pvt. Ltd., a private Nursing Home i. e. the O.P. No. 2 on 02.02.2013 for the said surgery and paid a sum of Rs. 35,000/- to the O.Ps, a package fee of Hernioplasty. The said surgery was conducted by the O.P. No. 1 on 03.02.2013 that was successful as opined by the O.P. doctor and the Complainant stayed in the nursing home on and from 02.02.2013 to 06.02.2013 and during that period the O.P. doctor prescribed some medicine as post operative measures. Unfortunately, the Complainant did not get cure by using such medicines rather felt abdominal pain and this complication was reported to the O.P. doctor several times i.e. on 12.02.2013, 25.02.2013 and on 04.02.2013 but the O.P. doctor assured that the pain will be automatically stop within a short period and nothing to worry but the condition of the Complainant become deteriorated day by day. Further, on 15.03.2013 the Complainant again with serious condition went to the O.P. No. 1 who after normal check up advised for Microbiological Examination and after said examination it revealed that the report is normal. It is the categorical allegation of the Complainant that due to lack of proper cares in pre and post operative period the complainant’s surgical site infected. Perusing the Microbiological test report the Complainant and his family members become worried and finding no other alternative move to Chennai Apollo Hospital on 28.03.2013 and on 01.04.2013 consulted with Dr. Murlidharan M (GEN SUR). Dr. Murlidharan with Dr. Ram Gopalkrishnan treated the patient after some test for which the Complainant had to stay in Chennai from 01.04.2013 to 19.07.2013. It is the further allegation of the Complainant that due to lack of ordinary skill and care the surgical site of the Complainant mesh infected and the Complainant will be suffer various disorder in future which is amount to medical negligence and deficiency in service. Further the O.P. No. 2 did not issue any money receipt in favour of the Complainant despite receiving the Nursing Home bill of Rs. 35,000/- and the Complainant sent a letter in this regard that was too unheeded. Finding no other alternative the Complainant compelled to file the present case against the O.Ps for their deficiency in service and medical negligence and prayed for issuing a direction upon the O.Ps as incorporated in the Prayer portion of the Complaint.
The Opposite parties after receiving the notice entered their appearance through Ld. Agents and contested the case contending inter-alia that the case is not maintainable in its present form as well as in law. The O.Ps by filing W/V denied all most all the material allegation of the Complainant only admitted the fact of admission and proper treatment of the Complainant by the O.P. No. 1 in O.P 2 Nursing Home. The O.Ps. averred that the Complainant once came to the O.P. No. 1 with complain of pain in abdomen with history of previous operation, Cholecystectomy done by any other doctor. After examination this O.P. noticed that the Complainant was suffering from Hernia in the place of operation of Cholecystectomy. Accordingly to cure the patient the O.P. doctor done hernioplasty by implanting Mesh inside the place of operation and discharge the patient on 06.02.2013 with some medicines as postoperative measure and there after this O.P. gave further treatment to the patient on 12.02.2013, 25.02.2013, 04.03.2013 and ultimately on 15.03.2013 it was noticed that there formed wound sinus in the place of operation and as precaution measure Microbiological examination done on 15.03.2013. The medicine Cifran-500mg. for ten days prescribed by the doctor on 18.03.2013 for early healing and thereafter the Complainant never came to this doctor with any complication. The further contention of the O.Ps. is that after getting notice he came to know that the patient went to Appollo Hospital and treated further i.e. behind the knowledge of him and he did not get any opportunity for removing Mesh thus, this O.P. has no deficiency in service. Further, this O.P. acted as per professional ethics and guidelines of that particular treatment so that there is no question of medical negligence as alleged by the Complainant. Putting all this O.P. No. 1&2 prayed that the case is deserved to be dismissed with cost.
Both parties have filed Evidence on affidavit with documents.
In the light of the contention of both the parties and on perusal the evidences the following points necessarily came up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986.
- Has this Forum jurisdiction to entertain the instant complaint?
- Whether the Opposite Party has any deficiency in service as alleged by the Complainant and is the opposite party liable in any way to compensate the Complainant?
- Whether the complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record carefully, perused all the materials on record. Considered, heard the argument of the ld. Agents of both the parties at a length.
Point No. 1.
Evidently, the Complainant in view to get proper service as to the medical treatment met with O.P. No. 1 after payment of certain amount and admitted in the Nursing Home i. e. O.P. No. 2 as per advice of the O.P. No. 1. The relation between the Complainant and the Opposite Parties so established from the record we have no hesitation to say that the Complainant is a Consumer as per Sec. 2 (1) d (ii) of the C.P. Act 1986.
Point No. 2.
In the present case all the O.Ps are the resident of this district or having their establishment in this district. The complaint value of this case is Rs.2,71,660/- i.e. far less than prescribed limit for which this Forum has territorial as well as pecuniary jurisdiction to try the case.
Point No. 3 & 4.
It is the case of the complainant that he consulted the O.P. No. 1 with a severe pain in his abdomen. The O.P. No. 1 after examination advised him to undergo Hernioplasty and accordingly the Complainant admitted in the Rithari Health Care Pvt. Ltd., a private Nursing Home i. e. the O.P. No. 2 on 02.02.2013 for the said surgery and paid a sum of Rs. 35,000/- to the O.Ps, a package fee of Hernioplasty. The said surgery was conducted by the O.P. No. 1 on 03.02.2013 that was successful as opined by the O.P. doctor.
It appears from the ‘Annexure-1’ the Discharge Certificate dated 03-02-2013, that the hernioplasty operation of the complainant was done in The O.P. No.2, Rithari Health Care Pvt. Ltd., by O.P. No.1, Dr. T. Paul and he was treated there from 02-02-2013 to 06-02-2013 as indoor patient.
The O.Ps did not deny the fact that hernioplasty operation of the complainant was done by them.
It is the allegation of the complainant that after operation the complainant did not get cure by using medicine prescribed by the O.P. No.1, Dr. T. Paul rather felt abdominal pain and this complication was reported to the O.P. doctor several times i.e. on 12.02.2013, 25.02.2013 and on 04.02.2013 but the O.P. doctor assured that the pain will be automatically stop within a short period and nothing to worry but the condition of the Complainant become deteriorated day by day. Further, on 15.03.2013 the Complainant again with serious condition went to the O.P. No. 1 who after normal check up advised for Microbiological Examination and after said examination it revealed that the report is normal.
It appears from the ‘Annexure-2’ i.e. prescription of Dr. T. Paul that the complainant attended said doctor on 12-02-2013, 25-02-2013 & 04-03-2013.
‘Annexure-3’ shows that microbiological examination of the complainant was held on 15-03-2013 as per advice of Dr. Paul which reveals no abnormalling.
It is the further case of the complainant that during his operation no pre and post operative care were taken by the O.Ps and his surgical site was infected. They rushed to Appollo Hospital, Chennai and there Dr. Murulidharan with Dr. Ram Gopal Krishnan treated the complainant and Doctors opined that surgical site of the complainant mesh infected.
‘Annexure-4/1’ i.e. prescription issued Dr. Ram Gopal Krishnan reveals that he opined that there were surgical site infection and mesh infection of the complainant and needs debridement sinus excision.
So, it is clear that after hernioplasty surgery of the complainant by the O.Ps there were surgical site infection and mesh infection.
It is the specific case of the complainant that such trouble of the complainant cropped up due to lack of proper cares in pre and post operative period of the complainant by the O.Ps.
On the other hand it is the case of the O.Ps that to cure the patient the O.P. doctor done hernioplasty by implanting Mesh inside the place of operation and discharge the patient on 06.02.2013 with some medicines as postoperative measure and there after this O.P. gave further treatment to the patient on 12.02.2013, 25.02.2013, 04.03.2013 and ultimately on 15.03.2013 it was noticed that there formed wound sinus in the place of operation and as precaution measure Microbiological examination done on 15.03.2013. The medicine Cifran-500mg. for ten days prescribed by the doctor on 18.03.2013 for early healing and thereafter the Complainant never came to this doctor with any complication.
It is also the case of the O.Ps that they acted as per professional ethics and guideline of that particular treatment and there was no negligence on the part of the O.Ps.
During argument Ld. Agent/Advocate of the O.P drew our attention to page No.169 to 170 of the text Higher Surgical Training, written by Sir Alfred Cuschiery which runs thus “Although wound infection is common (4% to 17%), actual incident rate of Mesh infection are not known but most such instances resolved with antibiotic treatment, although persistent serious infections necessitating removal of the mesh are well documented. Wound sinus is reported in 4% to 18% of cases. It usually heals with conservative management or minor intervention to remove the offender suture”.
He further submitted that every things were done by the O.Ps properly, but the complainant went to Appollo Hospital, Chennai for his treatment without giving any opportunity to them to cure the defect cropped up after surgery.
But we find that on 12-02-2013, 25-02-2013 & 04-02-2013 the complainant attended the O.P. No.1, Dr. Paul with abdomen pain. On 15-03-2013 he again attended Dr. Paul in serious condition and according to his advise microbiological examination was held and medicine was prescribed but in vain and he compelled to go to Chennai for better treatment.
During argument Ld. Agent/Advocate of the complainant submitted that besides holding microbiological examination and prescribing a medicine nothing was done by Dr. T. Paul, as post operative measure.
He further drew our attention to the internet copy of Preoperative Care (Encyclopedia of nursing and allied Health) regarding preparation to be done before operation which runs thus physical preparation should include obtaining a complete history and physical, including the patient’s surgical and anesthesia history. It should be determined if the patient has ever had an adverse reaction to anesthesia (such as anaphylactic shock), or if there is a family history of malignant hyperthermia. Such laboratory tests as CBC, electrolytes, prothombin time, activated partial thromboplastin time, or urinalysis may be done. An EKG should be done if the partient has a history of cardiac disease or is over 50 years of age. A chest X-ray should be taken if the patient has a history of respiratory disease. The patient should be assessed for risk factors that might impair healing, such as nutritional deficits, steroid use, radiation or chemotherapy, drug or alcohol abuse, or such metabolic diseases as diabetes. The patient should also provide a list of all medications, vitamins, and herbal or food supplements that they use. Supplements are often overlooked, but some can cause adverse effects when used with general anesthecites (e.g. St. John’s wort, valerian root) and others can prolong bleeding time (e.g. garlic, gingko biloba).
In the present case the O.Ps have not filed any scrap of paper regarding pre and post operation measures taken by them rather they relied upon the documents submitted by the complainant which are nothing but Discharge Certificate, a Prescription and Microbiological report.
During hearing Ld. Agent/Advocate of the complainant submitted a ruling reported in 2013 (3) CPR 104 (NC) where in a case of onset of gangrene after operation of leg resulting computation of leg, Hon’ble National Commission pleased to hold that no details operation notes were filed and nor was there any diagnostic test on the basis of which Appellant-Doctor had concluded that deformity had been completely corrected- There is no evidence of any other advice written or otherwise as to what patient or complainant should do and which doctor they could contact in Jabalpur in case of any complication- Due post-operative care was not provided by Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to provide required post-operative care to patient.
Considering overall matter into consideration, relying upon the ruling cited above and considering guideline regarding cares to be taken we are constrained to hold that the O.Ps are guilty for medical negligence and deficiency in service.
Let us assess the compensation amount. The complainant has claimed Rs.1,91,660/- as his treatment costs at Cooch Behar and Appollo Hospital, Chennai. The complainant has no filed any paper regarding payment of any bill to the O.Ps (it is the case of the complainant no voucher regarding payment was issued to him).
We find that regarding bill paid by the complainant in Appollo Hospital he submitted huge bills. But it very difficult to calculate actual expenditure from the said bill.
To assess the compensation it is to be kept in the mind that the complainant went to Chennai for better treatment without giving last opportunity to cure the defect by operation by the O.Ps.
Considering over all matter into consideration and materials on record we think end of justice would be met up if Rs.40,000/- is awarded as total compensation for medical bill, mental pain, agony, harassment, medical negligence & deficiency in service and Rs.5,000/- as costs of litigation.
Thus, the case succeeds in part.
ORDER
Hence, it is ordered that,
The Case of the Complainant be and the same is allowed on contest in part against the O.Ps with cost of Rs. 5,000/- payable to the Complainant.
The O.Ps are further directed to pay jointly and/or severally to the Complainant Rs.40,000/- as compensation for his medical bill, mental pain, agony, harassment, medical negligence & deficiency in service. The O.Ps jointly and/or severally be complied with the entire order within 30 days from the date of this order, failing of which the O.Ps shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the State Consumer Welfare Fund, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/ be sent under Registered Post with A/D forthwith for information and necessary action, as per Rule.
Dictated and corrected by me.
President President
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
