Tamil Nadu

North Chennai

CC/32/2018

N.Srinivasan,S/o.T.Narayanan - Complainant(s)

Versus

Dr.Aghilavendan - Opp.Party(s)

G.Rajaganapathy

28 Nov 2018

ORDER

                                                             Complaint presented on:  12.02.2018

                                                                Order pronounced on:  28.11.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

 PRESENT: TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL  : PRESIDENT

              THIRU. D.BABU VARADHARAJAN B.Sc.,B.L.,  :    MEMBER - I

 

WEDNESDAY THE 28^th  DAY OF NOVEMBER 2018

 

C.C.NO.32/2018

 

 

N.Srinivasan,S/o T.Narayanan,

Residing at Old No.2A, New No.7,

Raghunandan Flats, 16^th Street,

Thillaiganga Nagar, Nanganallur,

Chennai – 600 061.

                                                                                         ….. Complainant

 

..Vs..

•  

Residing at Sri Durgai Apartments,

ICC-19, First Floor,

B-Sector, 6^th Street,

North Main Road, Annanagar West,

Chennai - 600101.

….Opposite Party

Date of complaint                                 : 21.03.2018

Counsel for Complainant                      : G.Rajaganapathy, B.Sivasubramanian

 

Counsel for  opposite party                      : A.Rajaganapathy, K.Sathya Kumar

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL

          This complaint is filed by the complainant to direct the opposite party to claim a sum of Rs. 15,00,000/- towards compensation and  cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant met with an accident while riding in two wheeler and was admitted in Emergency department on  17.09.2016 at 20.15 hrs in D.R.J. Hospital. The complainant was diagnosed with “Proximal Tibia Fracture Left with impending Compartment Syndrome”. A Surgery “ORIF” Left Proximal Tibia With Plating (Sharma) was performed on 17.09.2016 by opposite party  at D.R.J. hospital with the aid of hospital staffs, nurses, medical and infrastructure facilities. The Complainant was discharged on 21.09.2016 with an advice to visit for review after 3 days and to remove suture on 29.09.2016. As per opposite party’s advice the complainant took utmost care and followed opposite party’s advice. On 29.09.2016, the complainant met the opposite party at D.R.J.Hospital for the removal of sutures. It has been diagnosed by opposite party   that the suture cannot be removed due to  infection on the operated part and opposite party  admitted the defective operation performed and also criticized about D.R.J Hospital’s poor sterilization, cleanliness and lack of  facilities, which would have led to the formation of infection and pleaded helplessness.  After, few days later, the complainant was unable to withstand the intense pain and pus discharge in the operated part & met the opposite party  in the same Hospital on 16.10.2016 at 6.00 a.m. Discharge summary dated 17.10.2016 reveals of his suffering from “Infected Implant Left Leg” and to perform rectification surgery for “Implant  removal from Left leg”. In view of better facilities, the opposite party has suggested the complainant to get admitted in Apollo Hospital to perform the rectification surgery, where he is a full time consultant. Opposite party offered to forego his surgery fees for rectification surgery and advised him only to bear with the hospital expenses in view of the poor infrastructure of D.R.J. Hospital. The Complainant is financially incapable hence could not accede to the opposite party’s advice. Hence opposite party  advised the complainant to get readmitted in D.R.J.Hospital and lent assurance for good sterilization and cleanliness to avoid further complications. The D.R.J. Hospital chairman Dr.Rajappa  informed the complainant that opposite party  has adopted the incorrect method of surgery and used substandard quality of steel plates for implant  and his facilities could  not be held guilty. After re-admission on 16.10.2016 a second rectification surgery in the form of Implant removal was done by opposite party  and replaced with artificial bone and was discharged on 17.10.2016. Even after, the pain persisted, having lost the hope in opposite party  and D.R.J. hospital, the complainant approached another orthopedic surgeon, who examined the Complainant and the records of surgery performed by opposite party’s, has suggested as “Failed Internal Fixation”- 2 surgeries already done and recommended  for revision surgery. The complainant was also examined by Dr.Sudhakar Williams of Sundaram Medical Foundation and was diagnosed with “Infective Non-union left proximal tibia comminuted fracture’ and admitted at  Sundaram Medical Foundation on 19.05.2017 then underwent revision surgery, where the artificial bones fixed by opposite party  in rectification surgery was completely removed and “Open reduction osteoclasis and bicolumnar fixation of left proximal tibia (synthesis titanium 7 holed lateral plate and AO SS 6 holed DCP) was performed and the complainant was discharged on 24.05.2017. On 21.06.2017, again  the complainant developed pain, swelling and pus discharge and  a wound debridement was performed  at Hariharan Diabetes and Heart Care Hospitals Pvt.Ltd.  and was discharged on 24.06.2017 opposite party has not followed the guidelines of orthopedics and a fracture  with compartmental syndrome should have been treated with an emergency surgical fasciotomy which has not been performed. The complainant is an employee of TTD as Potu worker and the nature of job is to stand most of the times and has suffered loss of pay for 4-5 months and he borrowed 7.5 lakhs for interest from kith and kin  to meet out the expenses. Aggrieved by the negligence and deficiency in service of the opposite party, this complaint is filed for compensation and costs.        

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The complainant was admitted in D.R.J Hospital and was having impending compartment syndrome which was an emergency calling for immediate surgery within 6 hrs  failing which  the patient would have lost the limb. The complainant was observed as in-patient for 5 days surgery performed and IV antibiotics were administrated and was discharged after 5 days and was advised to come for review but he came belatedly on 29.09.2016 and he himself admitted  of the skipping of antibiotics. The surgeon has advised for admission and debridement  but the patient was not willing due to cost  constraints he continued his brother’s prescription. There was proper sterilization, cleanliness and other facilities. When he got admitted on 16.10.2016 the implant removal was completed. Had the patient reviewed in time early and obeyed surgeon’s instructions for debridement surgery, the infection could have been avoided. The opposite party  never suggested for Apollo Hospital. The best implant Sharma-ISO 9001 & ISO 13485 standard was used. There is no role of substandard implant. It is disagreed that the patient underwent “artificial bone placement”. Whatever Dr. Sudhakar Williams removed would have been the patient’s bone and no biopsy report is submitted. Patient never followed the surgeon’s advice. He did premature walking after removing the plaster by himself. Dr.Sudhkar Williams have given only the cost estimation letter and not given an opinion. Infection is the cause of non-union and not the Implant. The surgical procedure of Fasciotomy was not done separately instead it was done during the open reduction surgery. Since the patient is budget constrained the opposite party  had decided to use buttress plate. The complainant suffered difficulties because of poor follow up and deviations from the doctor’s advice and the opposite party  disagrees that there were any unethical or unlawful monetary gains. There is no privity of contract between the patient and the opposite party. DRJ Hospital is a necessary party. The Complaint is devoid of merits and to be dismissed.     

3. POINTS FOR CONSIDERATION:

1. Whether DRJ Hospital is a necessary party?

2. Whether there is deficiency in service on the part of the opposite party?

          3. Whether the complainant is entitled to any relief? If so to what extent?

04. POINT NO :1 & 2

          The complainant met with an accident and was admitted in DRJ Hospital on 17.09.2016 at 20.15 hrs in the Orthopedic department as an Emergency admission and on emergency calling of the opposite party  by the Hospital ,the complainant was examined and treated by the opposite party are admitted facts. As per Ex.A1 discharge summary of DRJ Hospital, diagnosis was “Proximal Tibia fracture Left with impending  compartment Syndrome” and Surgery done was “ORIF” Left Proximal Tibia with Plating (Sharma) and the date of discharge was on 21.9.2016 and was advised to come after 3 days for review and for suture removal on 29.09.2016. Admittedly the complainant had not gone for review but went for suture removal on 29.09.2016. On that day suture could not be removed in view of infection found in the operated part.

05. It is alleged by the complainant in his complaint that the infection is due to poor sterilization, cleanliness and lack of facilities in DRJ Hospital as criticized by the opposite party  himself. But opposite party  denied the same in his written version. But,  the said allegation of the complainant  is not substantiated by the complainant. Admittedly the complainant met with an accident near DRJ Hospital and he was admitted there in Emergency Ortho Department and the opposite party  doctor was called by the hospital to attend the complainant. But the hospital is not a party to this complaint to put forth the factual situation before this Forum.

06. After a month later, the  complainant was unable to withstand the pain and pus discharge in the operated part, again he was admitted in the same Hospital on 16.10.2016 at 6.00 a.m and was discharged on 17.10.2016 at 7.30 A.M. The discharge summary in Ex.A3 reveals there was a discharge of pus from Left Leg and the treatment given was implant removal, debridement done and advised for medicines.Ex.A2 and Ex.A4 are medical bill payments from 17.9.2016 till 22.12.2016. The total cost of estimation for an amount of Rs.2,50,000/-  for the surgery  for ORIF and plating, bone grafting was  given by one Dr. Sudhakar Williams  in Ex.A5.

         07.  Again on 19.05.2017, as per the records in Ex.A6, for Non-union of Left Proximal Tibia comminuted Fracture, complainant was admitted in Sundaram Medical Foundation and as per Discharge summary the procedure of “Open Reduction, Osteoclasis and Bicolumnar Fixation of Left Proximal Tibia (Synthes Titanium 7-Holed Lateral Plate and Ao SS 6- Holed DCP)” was done  by Dr.Sudhakar Williams.  As per their  Brief clinical summary, due to accident the complainant underwent Surgery for Proximal Tibia Fracture with impending compartment syndrome in September 2016, ORIF (Open reduction internal fixation) with dual plating was done. After a month, he developed wound gaping and pus discharge, for which he was put on Vaccum dressings for 4 weeks. As wound did not heal well, infected implants were removed and debridement was done in October 2016. Then wound healed well and the patient started mobilizing,  as per the records submitted, but seven months later to the said surgery. i.e on 19.05.2017,  the complainant had difficulty  and pain on left leg, he was admitted in Sundaram Medical Foundation  for further Management. Ex.A7 is the in-patient bill of Sundaram Medical Foundation, where he underwent this surgery of open reduction and internal fixation (Multiple bone) Level IV and discharged on 24.05.2017.

            08. Again,  a month later  to the said surgery  at Sundaram Medical Foundation  i.e on 21.06.2017, the complainant was admitted in Hariharan Diabetes & Heart Care Hospitals Pvt., Ltd., As per the discharge summary in Ex.A8 of the said Hospital, the complainant was admitted for the complaints of pain, swelling and pus discharge from Left Knee.   Wound Debridement under spinal Anaesthesia was done at Hariharan Diabetes & Heart Care Hospitals Pvt., Ltd. and  he was discharged on 24.06.2017. As such the complainant had pain sufferings even after the surgery done at Sundaram Medical Foundation.

09. On17.05.2017, A notice in Ex.A9 was issued to the opposite party  with a copy to DRJ Hospital stating that there is deficiency on the part of the opposite party. There is a statement in the notice that the complainant had a consultation with one Dr.RajaVenkatakrishnan, who criticized the incompetence of the opposite party  as a medical professional and the method adopted by him for surgery and unwanted screws attached to the implant plate. The said doctor only suggested the complainant to get the implant removed forthwith and suggested a vaccum method to suck out the pus and fluid around the infected part. Again, Dr.Rajavenkatakrishnan suggested the patient to undergo second rectification surgery in the form of bone grafting and suggested  for removal of  the implant  plate as the size of the plate did not fit into the injured part and the fixing of plate was improper. Ex.A10 is the acknowledgement for the receipt notice.

            10. The complainant has submitted the loss of pay in his job as “Potu Worker” and his pay slip for the month of Aug.2016, his loan agreement  is said   to be for the purpose of   his medical expenses are marked as Ex.A11 to Ex.A14. On the side of opposite party  a reply to the notice dated 17.05.2017 was given to the counsel for complainant  on 29.05.2017 and that was returned as unclaimed and it is marked as Ex.B1 and Ex.B2.Many references  have been cited from journals and citations  to support the version of opposite party. As cited by the  opposite party, the initial burden lies on the complainant to prove his contentions.  The opposite party  would contend that he had not committed any negligence in the treatment of the complainant and the complainant had not followed the advice of opposite party and failed to attend the review and the infection is not because of the surgery, because the best implant Sharm.–ISO 9001 & ISO 13485 standards FDA (CDSCO)  with global standards was used .First surgery was successful and the patient himself  said that he skipped antibiotics due to vomiting sensation. That might also be the reason for the infection. There was no implant loosening and the first surgery saved the life of the patient and the second surgery saved from infection. There is no negligence on the part of the opposite party  and DRJ Hospital is a necessary party.

11. The complainant’s allegations against opposite party  is that the first surgery performed by opposite party  by using tubular plates and screws has miserably failed, second rectification surgery to remove the tubular plates also failed. Because of the negligence of the opposite party, the complainant suffered physical and mental agony and financial loss and also he was forced to undergo a third revision surgery by a different orthopedician which rendered the complainant’s health and life  stable and secure.

12. The complainant  also contends that opposite party  himself had admitted the defective surgery performed by him, and also criticized DRJ Hospital for poor sterilization, cleanliness, and lack of facilities which resulted in  formation of infection. Further it has not been substantiated by the complainant  by any proof. DRJ Hospital is also not a party to this complaint  to answer  for the same, however opposite party  had denied the allegations and also as per  discharge advice  given at the time of discharge  from DRJ Hospital and as per records the patient/complainant was stable and vitals were normal.  Hence the said allegation of the complainant is not considered as true  by this Forum.

13. The opposite party  would contend that to avoid further complications, there was a suggestion for second surgery for the removal of implants. It is also explained that wherever a metal (implant) is kept inside the body during surgery, the flow of blood to that area is lesser due the slimy layer, hence the second surgery for removal of implant to cure the infection was done and it was successful. The opposite party also contends that first he suggested for debridement  to avoid the implant removal but that was not accepted by the complainant.  However, the opposite party  had done the surgery as he renders his service at DRJ Hospital and was called by the Hospital at the time of the complainant’s admission. Since hospital is not a party, no detailed post- operative records and consent letters which are available in the hospital are not before this forum for perusal.

          14. There is no proof for the advice by the opposite party  to get the complainant admitted at Apollo Hospital due to the poor infrastructure facilities at DRJ Hospital as alleged by the complainant. The complainant also alleges that one Mr. D.Rajappa, Chairman of DRJ Hospital informed the complainant  that opposite party  has adopted incorrect method of  surgery and used  substandard  quality of steel plates for implant. Mere saying of allegations will not improve the case of the complainant, unless and until it is substantiated in any way.

          15. Another contention of the complainant in his complaint is that opposite party  had completely removed  the steel plates and  experimented another procedure of  using another artificial bone.  But the discharge summary does not disclose the same. There is no medical bill produced  revealing the charge of the artificial bone also. The opposite party’s  argument is focused on the Global standard of implant used in the surgery such as “Sharma-ISO 9001 & ISO 13485 standards, FDA (CDSCO).Reference .1. of Medical study is cited for its best quality range. As per reference, it is to be considered as the best quality. However, the complainant has not obtained any medical expert opinion to prove his contention of substandard  quality of implant is being used for his surgery by the opposite party. Therefore the implant used cannot be considered as of substandard quality.

          16. The complainant in his Legal notice has alleged many allegations like his consultation with one Dr. Raja Venkatakrishnan, who examined the injury and his discharge summary, then criticized the opposite party’s incompetence as a Medical professional and pointed out the unwanted  screws attached to the implant plate and the usage of vaccum for  removal of pus and fluid as suggested by the above said doctor the opposite party concurred  his suggestions and offered to remove the implant and to do further second rectification surgery, since the fixed implant did  not fit into the injured spot. Even though these allegations have not been said in the complaint, but it has to be  given importance for various stands expressed by the complainant against the opposite party, without a single scrap of paper to prove it.

           17. According to the complainant, the second surgery was done by opposite party  only to correct the  earlier defective surgery done by him. No x-ray is filed to prove the alleged fitting of the implant’s imperfection and loosening of the screw’s with measurements to show the position of the fracture before and after surgery. In view of the same, the complainant’s contention cannot be considered as proved. It is pertinent to say that the initial burden is on the part of the complainant to prove his case, but  he failed to prove. Ex.A6 is the Discharge summary from Sundaram Medical foundation, where again the complainant was admitted on 19.05.2017, nearly after 8 months of his first surgery for the complaint of difficulty in walking  on left leg and for further Management. Ex.A5 is the letter for  cost estimation for the surgery which he has to undergo. This cannot be treated as the opinion of the said doctor as argued on the side of the complainant. The Diagnosis in Ex.A6 is “Infective Non-union Left Proximal Tibia comminuted Fracture” and the procedure’s name was “Open Reduction, Osteoclasis and Bicolumnar Fixation of Left Proximal Tibia (Synthes Titanium 7- Holed Lateral Plate And AO SS 6- Holed DCP)”, and the procedure done was “Open reduction and internal fixation (Multiple bones)-Level IV” He was admitted on 19.5.2017 and discharged on 24.05.2017. The patient was comfortable after surgery as per discharge summary. In-Patient bill of the said Hospital is Ex.A7.

          18. Thereafter also, the complainant developed pain and swelling and pus discharge from Left knee as stated in the complaint and also as per Ex.A8 Discharge summary from Hariharan Diabetes & Heart Care Hospitals Pvt., Ltd., The primary illness as per Ex.A8 is “Orif Left Proximal Tibia, infected” and the procedure done was “Wound debridement Under Spinal Anaesthesia”. This status of the patient/complainant indicates at this stage is that the wound again  got infected even after the internal fixation of Synthes, and again the  surgery done at  Sundaram Medical foundation also failed as per the literature of the complainant. These factors go to show that  it is not the implants caused infection and infection might be the cause for non-union of the fracture. As per the Medical literature, and as pointed by the learned counsel for opposite party infection may be due to multivarious reasons, may also occur due to poor follow-ups after surgery and deviations from the instructions given by the concerned doctors, rehabilitation after surgery, post operative care of the patients by themselves, and depending on other illness of the patients.  In the case the investigation reports, x-rays, biopsy reports have also  not been submitted before the Forum by the complainant.

          19. During the argument on the opposite party’s side,  the surgical procedure of Fasciotomy  was explained, where the fascia has to be cut to relieve tension and pressure  to release the compartment pressure on the injured part. In this case  a single curved  incision during ORIF Surgery itself has served the purpose of compartment pressure release, good fracture reduction as well as buttress plate fixation hence the opposite party  had opted for emergency single stage fixation surgery. However, this complainant got admitted in DRJ Hospital, not aiming a particular doctor of his choice. It so happened due to accident nearby, the Hospital had given a call to the  opposite party doctor who attended the emergency. The post –operative care was also attended by the other co-workers in the Hospital and the Hospital is only receiving the payment and the intensive records will be lying in the custody of the Hospital. Neither the Hospital is added as a party at least for the purpose to bring out the records, nor the complainant had taken interest to get the entire records  from the Hospital. And the Discharge summary of DRJ Hospital discloses that X-rays and other investigations are enclosed with it, but there was no explanation putforth by the complainant for non filing of the  enclosure, particularly some of his allegations  of the complainant are based on the same.  X-ray plays an important role in orthopedic- cases , Neither the x-ray is produced by the complainant, nor any expert opinion is obtained especially when there are differences of opinion expressed by different doctor’s as alleged by the complainant under such circumstances,  DRJ Hospital is a necessary party to the complaint.

20.  In conclusion, we are of the view that the Medical opinion may vary with regard to the course of action  to be taken by a doctor treating a patient, but so long he acts in a manner which is acceptable to cure a patient, it is to be presumed as the doctor attended  with due care and diligence. In this case, even though the complainant poses many allegations against the opposite party  in the complaint and  in his notice, he failed to prove negligence or deficiency in service on the part of the opposite party. The reply to the notice given by the complainant is filed in Ex.B1 and that was returned as “Unclaimed”. Hence the complaints against the opposite party  that he had not even replied to the notice dated 17.5.2016 is not correct.

21. The dispute is with regard to the negligence alleged to be  committed by opposite party. But the complainant underwent surgery in two more hospitals. The first surgery was done by the opposite party on 17.09.2016 and 8 months later only he approached the doctor at Sundaram Medical foundation. In the mean time he was not treated with the opposite party. The occurrence of infection had happened after every surgery to the complainant. The complainant himself stated that he is a Pottu worker and his nature of his job is to stand near the hot boiler and also to carry Laddu from presiding deity to distribution counter. But he had taken rest only for four months and resumed work as per the months calculated for loss of earning in the certificate submitted by the complainant and he had worked totally giving complete reliance on his foot, which will not help in such kind of patients aged more than 65 years for immediate union of the fractures as argued by the learned counsel for opposite party. However, here, if the hospital had been a party, the entire records such as x-rays, Pre and Post Medical check-ups, Biopsy reports, other perfects would have been brought before the forum for further appreciation, if any.

22. The learned counsel for  complainant has citied the decision reported in  Supreme Court of India

Smt. Savita Garg

Vs.

The Director, National Heart Institute (12.10.2014)

to emphasis the point as the complaint need not be dismissed only on the ground of non-joinder of necessary party.   In the above  cited case, the appeal is directed against the order passed by the National Consumer Disputes Redressal Commission, New Delhi whereby the commission has dismissed the original petition of the appellant on the ground of non-joinder of necessary parties.  Here the facts of the case is different such as the allegations are put forth by the complainant  against  both DRJ Hospital and also the Doctor (opposite party). Under the said circumstances,  as per the discussions held by us in between in earlier paragraphs, we hold that  DRJ Hospital is a necessary party to this complaint.  In conclusion the complainant has not proved the alleged negligence as against the opposite party therefore he is not entitled to get the relief as prayed for point No. 1 &2 are answered accordingly.

23. POINT NO:3

          As per the discussions held by us  in the earlier points, the complaint is liable to be dismissed and the complainant is not entitled to any relief as prayed for.

            In the result, the complaint is dismissed. No costs.                

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th  day of November 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 21.09.2016                   Copy of Discharge Summary

Ex.A2 dated         20.09.2016                   Copy of Medical Bills

Ex.A3 dated         17.10.2016                   Copy of Discharge Summary

Ex.A4 dated NIL                     Copy of Medical & Hospital Expenses

Ex.A5 dated         11.05.2017                   Copy of Medical Opinion

Ex.A6 dated         19.05.2017                   Copy of Discharge Summary

Ex.A7 dated 24.05.2017                   Copy of Medical & Hospital Expenses

Ex.A8 dated 21.06.2017                   Debridement surgery

Ex.A9 dated 17.05.2017                   Show cause notice

Ex.A10 dated NIL                             Acknowledgement Card

Ex.A11 dated 15.03.2018                 Copy of  Loss of pay Certificate

Ex.A12 dated 14.09.2016                 Copy of Salary Slip

Ex.A13 dated 06.03.2017                 Copy of Loan Agreement

Ex.A14 dated 21.09.2016                 Copy of Loan Agreement

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated 29.05.2017                   Reply notice – Office Copy

 

Ex.B2 dated NIL                     RPAD

 

 

MEMBER – I                                                                PRESIDENT