Date of Filling     :  12.12.2013.

                                                                                           Date of Disposal :  26.12.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.70/2013

(Dated this Monday the 26^th day of December 2016)

Mr. A. Anbu,

S/o. Mr. Arjunan,

No.28, Park Street,

Ayapakkam,

Chennai - 600 077.                                                                    … Complainant.

                                                          / Versus /

Dr. B. Mahendran, M.B.D. Ortho, M.S. Ortho,

B.M. Orthopedic Hospital,

No.3/157, M.T.H. Road,

Chennai - 600 053.                                                                  … Opposite party.

This complaint is coming upon before us finally on 28.11.2016 in the presence of M/s. M. Jagatheesh, Counsel for the Complainant and Dr. B. Cheran, Counsel for the opposite party and upon hearing arguments, having perused the documents, evidences and written arguments of the both sides this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking compensation to the tune of Rs.15,00,000/- towards deficiency of medical service on the part of the opposite party during treatment and thereby, caused mental agony and hardship to the complainant

2.     The brief averments of the complaint as follows:-

The complainant met with an industrial accident on 28.12.2012 and due to that his left leg toes are crushed and immediately, he was admitted in the opposite party’s hospital as inpatient.  In continuation of the treatment, K wire was fixed in big toe and no such K wire connected to refix the other II to V toes.    But the opposite party simply covered with cotton clothes and not even given antibiotic treatment for three days that is till 31.12.2012.  Finally, at the pressure  of the complaint, he was discharged from the opposite party’s hospital and immediately, he was readmitted in the Vijaya Poly Clinic, Ambattur where the medical advice was given that if the similar K wire was fixed in II to V toes on the same date of accident, his all toes were saved.  Then as advised by Dr. Vijayakumar, who is attached with Vijaya Poly Clinic, Ambattur, on 31.12.2012  his II to V toes were removed from his leg since, if they are not removed the whole leg will be spoiled. 

3.       The loss of 4 toes of the complainant is only due to the failure and negligence on the part of the opposite party, which amounts for medical negligence which leads to deficiency of service.  Hence, the complainant had issued a legal notice on 15.07.2013 and the same was received by the opposite party and in turn the reply notice has been sent on 04.09.2013 by denying the averments and not come forward to comply the demands of the complainant.  Hence, this compliant is filed. 

4.       The contention of written version of the opposite party is  briefly as follows:-

Most of the allegations in the complaint is false, concocted, frivolous and vexatious and unsustainable in law and on facts.  The opposite party is a qualified Orthopedic Surgeon and he had been practicing Orthopedics for 27 years.  It is not true that the complainant was not given any treatment other than fixing K wire.  Everyday, the complainant was examined by the Doctor and IV antibiotics like injections was given along with IV fluids.  Injection Tramadol was given for pain whenever required, Injection Tobraneg was added later and Tablet Hifenac P was also given.  Further, the toes were not fully dressed as there was need to check the vascular sufficiency, viability, sensation and movements of the toes periodically.  Great toe was only having viability and hence K wire was fixed.  There was no point in fixing K wire as the very viability of the tissues were questionable.  It stoutly deny the allegations that medical advice was given that if K wire were fixed to other toes that could have been saved.    Further, the patient was explained about the need to do amputation after a look at operation theatre. The toes have become gangrenous and the tissues turned dead because of the severe nature of crush injury.   It is not due to any shortfall in treatment.  The treatment was 100% appropriate and there was no negligence in the management and  was in conformity with treatment suggested in text books.

5.       The complainant is a blatant lie that he could not continue to do his job.   As for as compensation, the complainant would have been given a lump sum amount by his company as the accident has happened during work and also he would have received amount by way of insurance by having ESI benefits.  It is submitted that the suffering alleged to have been experienced by the complainant had resulted out of the severe nature of crush injury.    There is no filing of medical text or literature to suggest that the treatment was wrong.  Therefore, there is no medical negligence or deficiency of service on the part of the opposite party.  Hence this compliant is liable to be dismissed.

6.       In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and documents from Ex.A1 to Ex.A10 are marked.   While so, on the side of the opposite party, the proof affidavit is filed  and documents from Ex.B1 to Ex.B4 are marked for their evidence.

7.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any medical negligence on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

8.     Written arguments filed and oral arguments adduced on the both sides.

9.       Point no.1:-

It is submitted on the side of the compliant that when the complainant was admitted in the opposite party’s hospital on 28.12.2012 for treatment for the injuries sustained in the left leg due to the industrial accident while he was in work and got treatment in the opposite party’s hospital for three days till 31.12.2012.  It is further stated that the K wire was only fixed for great toe and not for other toes which leads to complication to the extent of removal of II to V toes.  In the latest stage as advised by the Dr. Vijayakumar, who is attached with the Vijaya Poly Clinic Hospital, Ambattur and such crisis of removal of toes could have happened only due to the medical negligence by not fixing the K wire even on the day when the K wire was fixed in the great toe and if the K wire was fixed definitely  the II to V toes could be saved and recovered and thereby, the negligent act was proved and in spite of legal notice dated 15.07.2013 issued  to the opposite party, he has not come forward to fulfill the demands of the complainant.

10.     On the other hand, the learned Counsel for the opposite party would submit that it is an admitted fact that the complainant has sustained crush injuries in the II to V toes and therefore, the K wire could not be fixed on the day in which the K wire was fixed in great toe and the complainant was kept for observation by giving antibiotic and other treatment as suggested in the text books and  it is found that II to V toes have became gangrenous and the tissues turned dead because of the severe nature of crush injury and therefore, the complainant was advised that there is no alternative except amputation.  But the complainant wanted to obtain second opinion on his own accord, and so he was discharged from the hospital.  But it is further submitted that the treatment was given in conformity with the treatment mentioned in the textbooks and there is no concrete proof to show that the treatment given by the opposite party was wrong and therefore, the opposite party has not committed any omission or commission and therefore, there is no medical negligence.   Regarding the consent obtained by the opposite party, it is only error committed by the nurse who was in duty and it is no way affected the plea of the opposite party.

11.     At this juncture, the duty cast upon this Forum to decide as to whether the complainant has proved the medical negligence as alleged in the complaint against the opposite party.  First of all, on careful perusal of the evidence of the complainant, it is seen that he was admitted in the opposite party’s hospital on 28.12.2012 for the treatment of the injury sustained due to an industrial accident and discharged on 31.12.2012.   In order to prove the same, Ex.A1 to Ex.A7 have been produced the advance receipt as well as the medical bills for purchase of medicine during the period from 27.12.2012 and 30.12.2012 is marked as Ex.A6 Series.  It is further learnt that the complainant had voluntarily got discharged from the opposite party’s hospital and readmitted in Vijaya Poly Clinic Hospital, Ambattur on 31.12.2012 and there he was advised for removal of II to V toes otherwise, the whole foot will be affected and therefore, he has given consent for the same and in that hospital amputation was done to that effect Ex.A2, Certificate dated 07.01.2013 is marked.  It is further stated that due to the sole medical negligence, committed by the opposite party the complainant’s II to V toes would have been removed and therefore, the complainant had issued legal notice which is marked as Ex.A4 to the opposite party dated 15.07.2013 and in turn the reply given by the opposite party is marked as Ex.A5 and the reply letter dated:08.08.2013 by the opposite party to the complainant is marked as Ex.A3.  X-Ray, X-Ray Report along with the photos are marked as Ex.A8 to Ex.A10.

12.     While so, it is learnt from the evidence of the opposite party is that the Doctors who have given treatment for the complainant are of fully qualified and to that effect Ex.B2 and Ex.B3 and the entire case sheet for treatment given for the complainant in between 28.12.2012 and 31.12.2012 is marked as Ex.B1 and the consent of the complainant is marked as Ex.B4 and in Ex.B1 clearly reveals the fact that proper treatment was given as suggested in the text and there is no medical negligence on the part of the opposite party.

13.     At this juncture, on careful perusal of the above evidences, it is crystal clear that it is an admitted fact that the complainant had met with an Industrial accident and sustained crush injuries in the left leg toes and immediately, he was admitted in the opposite party’s hospital on 28.12.2012 and on that day itself he was given treatment by fixing K wire on the great toe and the stay sutures for the 2 to 5 toes as viability was doubtful and loose dressing applied and BK slab given and foot was kept elevated in the ward.  It is further seen from the Ex.B1, on 29.12.2012 the patient was examined in the ward and it is noted that the great toe K wire in situ and was pinkish and other toes showed bluish discolouration and the sensation was diminished.  Further, it is noticed that the plan was to give remote chance for viability and also to wait for demarcation of dead tissue from live tissue and in the evening on the same day, there were mild movements in the 2 & 3^rd toes but no active movements were present with 4 & 5^th toes.  On 30.12.2012, the great toe was pink and viable and the 2^nd toe little movements were possible but viability was doubtful.  The 3, 4 & 5^th toes were with movements and sensation and bluish in colour.  On 31.12.2012, bluish black demarcation of proximal phalanx of 3, 4 & 5^th toes with doubtful viability of 2^nd toe.  The great toe was almost normal and the forefoot was cold.  Final diagnosis of Imminent gangrene of the 2 to 5^th toes was made and the patient was explained about the need to do amputation after a look at the operation theatre. 

14.     In such circumstances, the complainant wanted to get second opinion before consultation to amputation of toes and requested for discharge and therefore, the complainant was discharged from the opposite party’s hospital on 31.12.2012 on his own accord.

15.     At the outset, it is seen that though it is stated by the complainant that after discharge from the opposite party’s hospital immediately, he was readmitted in Vijaya Poly Clinic, Ambattur on 31.12.2012 and on the advice of Dr. Vijayakumar, of that hospital amputation was done for the gangrenous from 2 to 5 toes on the left foot.   Except Ex.A2, no other medical documents has been produced before this Forum on the side of the complainant.  At this point of time, on careful perusal of the Ex.A2, Certificate given by Vijaya Poly Clinic Hospital, Ambattur dated: 07.01.2013, it is clearly stated that the 2 to 5^th toes in the left foot got damaged because of crush injury sustained due to the Industrial accident and the amputation was done.  There is not even a single word in respect of any wrong treatment or any medical negligence committed by the opposite party is found in the certificate.  Such being so, on going through the text, which is submitted on the side of the opposite party, under the Head amputation for upon and infected it reads as follows:-

“The only certain indication for immediate amputation is damage to the main blood vessels in an almost totally destroyed limb.  However, there are rare cases where destruction of the bone and soft tissues is so extensive that primary amputation should be seriously considered.  This is occasionally the case in severe crush injuries to the foot where an immediate Symes amputation gives a better result that the retention of a painful and deformed foot  In such patients the decision to amputate must be made early (Figs 17.50 to 17.52), for it is often difficult to persuade a patient to sacrifice a useless and painful limb after he has undergone many months of treatment to save it.  However, the decision to amputate early can be a very difficult one to make and when in doubt conservative treatment should be continued until the position clarifies itself, in this way an unnecessary amputation may sometimes be avoided”.

16.     At the outset, in order to disprove the above context, there is no text or opinion submitted by the complainant.  Therefore, it is crystal clear that for serious crush injuries, there is no alternative except amputation and it is the best treatment, otherwise series consequences will be happened.  At this juncture, on the side of the complainant, it is seriously contended that the consent of the complainant Ex.B4 and the consent attached with Ex.B1 are quite different and therefore, the said consent for the treatment is not obtained properly and therefore, the consent is not a valid one which itself shows the deficiency of service on the part of the opposite party.   Regarding this the explanation given by the opposite party, is reasonable and it can be acceptable one.   Moreover, it is true that there are some differences in the Consent Form, it is no way affected the plea, taken by the opposite party and that itself won’t come under the deficiency of service.  Therefore, the contention raised by the complainant is hereby rejected in this regard.  Furthermore, it is pertinent to note that no expert opinion filed by the complainant, which is a mandatory one to establish that there is medical negligence on the part of the opposite party.

17.     In the light of the above facts, circumstances and observations made, this Forum concludes that there is no medical negligence on the part of the opposite party and the same has not been proved.  Thus the point is answered accordingly.

18.     Point no.2:-

As per the decision arrived in point no.1, the complainant is not at all entitled for any relief as prayed in the complaint.  Thus, point no.2 is answered accordingly.

          In the result, this complaint is dismissed.  No cost.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 26^th December  2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER - I                                                                             PRESIDENT