SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, against opposite parties alleging medical negligence and deficiency of service claiming compensation for a sum of Rs.5,00,000/- to the complainant together with cost of this complaint.
Facts in brief are that the Complainant’s case is that, the complainant who was aged 13 years and was a student in 9th standard sustained injury to the bottom of his left foot with glass piece on 23/01/2013 and glass pieces entered inside the injury. He consulted OP No.2 on the same day itself. OP2 examined the complainant’s injury and applied band aid to the injury and medicines prescribed and discharged. Further, stated that through complainant’s mother requested to OP2 for taking X-ray to the injury site, the OP No.2 but OP2 had not taken X-ray. On the same day itself pain to the injury site increased and he could not move the leg. Hence the complainant again approached the OP 2 within few days. OP2 removed the band aid of the injury and examined it and applied another band aid. Further submitted that, at that time also complainant’s mother requested the OP2 take X-ray to the injury site. But OP2 has not heeded the same. Injury was healed step by step but the pain to the inner side while walking increased. Due to the fear from approaching hospital the pain of the injury while walking was not informed by the complainant to his mother. The complainant not was unable to run and walk properly due to the pain to his leg. In the month of December 2016 he told his mother about the pain to the injury site and unable to move the leg. Hence on 21/12/2016, he was taken to ECHS, Polyclinic, Kannur. He was examined there and after taking X-ray to the leg, he was informed that there are two pieces of foreign bodies (glass pieces) inside the injury. As referred from there, complaint again approached OP No.2 on the same day. OP2 examined the X-ray and he removed the foreign body and discharged. Due to the severe pain to the leg, he approached Thalassery co-operative hospital with his mother on 28/07/2017 and Dr. Sudhakarn Komoth examined and on 02/08/2017 removed the foreign body from the same injury. Complainant further submitted that it is solely due to the negligence of the 2nd OP Dr. C P Visaradan, General Surgeon, that the complainant was constrained to undergo treatment for a longue period of 5 years and there by suffered much pain and mental agony. Hence the complaint
After receiving notices OP 2 filed version stating that complainant reported to the casualty in the 1st OP hospital on 21/12/2016 as per reference from of ECHS Clinic. The 2nd OP who was attending patients in the outpatient department at that time came to casualty and seen the complainant. It was the 1st time the 2nd OP had seen the complainant and as per referral form it was recorded that he had a post –traumatic foreign body under his left foot for 2 years without specifying the nature and number of foreign bodies along with X-ray taken from an external source, which showed evidence of a foreign body and the same was informed to the complainant and his mother who accompanied the patient and advised its removal. Under aseptic conditions, OP2 thoroughly examined the wound under local anaesthsia and there was a single scar and on exploration a large glass piece was discovered at the scar site and same was removed from left foot. The wound was sutured and the complainant was discharge. Further stated that after 7 days, complainant returned for suture removal and it was found that the wound had completely healed. At the time of suture removal, complainant did not report any pain or other discomfort, even while walking. OP2 submitted that after removal of the sutures, the complainant did not return for further consultation or for follow up. The complainant’s case the another foreign body was removed on 02/08/2017 from another hospital which was allegedly missed by the 2nd OP is not tenable or sustainable and hence denied. OP2 has stated that at the time of the wound exploration conducted by him, there was no indication, either based on the X-ray or ocular examination, for a reasonable medical practitioner to suspect the presence of a residual foreign body. Normally if the patient did not report any complaint on suture removal and if wound healing was proper there is no need for taking a check X-ray and a surgeon has no reason to suspect the possibility of a residual foreign body if the patient only exhibits a single scar at the site. It is also stated that under these circumstances even if a foreign body was removed from the complainant’s left foot 7 months after initial exploration conducted by OP2, it cannot be attributed to negligence or deficiency on the part of OP2. The complainant did not consult the 2nd OP in 2013 as stated by him. The statement that the 2nd OP examined the complainant’s injury and applied band aid and prescribed medicines and collected fee for service in 2013 is false. The 2nd OP had exercised reasonable skill and care in the treatment of the complainant and followed standard and accepted practice expected from a reasonable surgeon in an identical situation. OPs are not liable to compensate the complainant either jointly or severally. Hence, prayed for the dismissal of complaint with cost.
Complainant has filed his chief affidavit and was examined as Pw1. The documents of complainant were marked as Ext.A1 to A9. Pw1 was subjected to cross-examination by OP No. 2. On the side of OPs, OP No.2 has filed his chief affidavit and has been examined as Dw1.
Complainant’s case is that, when he was aged 13 years and was a student in 9th standard sustained injury to the bottom of his left foot with glass piece on 23/01/2013 and glass pieces entered inside the injury. He consulted OP No.2 on the same day itself. OP2 examined the complainant’s injury and applied band aid to the injury and medicines prescribed and discharged. Further, alleged that though complainant’s mother requested to OP2 for taking X-ray to the injury site, OP2 had not taken X-ray. On the same day itself pain to the injury site increased and he could not move the leg. Hence the complainant again approached OP 2 within few days. OP2 removed the band aid of the injury and examined it and applied another band aid. It is alleged that, at that time also complainant’s mother requested OP2 to take X-ray to the injury site. But OP2 has not heeded the same. Injury was healed step by step but the pain to the inner side while walking increased. Due to the fear from approaching hospital the pain of the injury while walking was not informed by the complainant to his mother. In the month of December 2016 he told his mother about the pain to the injury site and unable to move the leg. Hence on 21/12/2016, he was taken to ECHS, Polyclinic, Kannur. He was examined there and after taking X-ray to the leg, he was informed that there are two pieces of foreign bodies (glass pieces) inside the injury. As referred from there, complaint again approached OP No.2 on the same day. OP2 examined the X-ray and he removed the foreign body and discharged. Due to the severe pain to the leg, he approached Thalassery co-operative hospital with his mother on 28/07/2017 and Dr. Sudhakarn Komoth examined and on 02/08/2017 removed the foreign body from the same injury. Complainant alleged that it is solely due to the negligence of the 2nd OP Dr. C P Visaradan, General Surgeon, that the complainant was constrained to undergo treatment for a longue period of 5 years and there by suffered much pain and mental agony.
OP No.2 has submitted that the complainant had approached OP2 at 1st on 21/12/2016 with referral from of ECHS Clinic stating that the complainant had a post –traumatic foreign body under his left foot for 2 years, without specifying the nature and number of foreign bodies along with X-ray taken from an external source, which showed evidence of a foreign body. Under aseptic conditions, OP2 thoroughly examined the wound, and under exploration a large glass piece was discovered at the scar site. Further exploration did not reveal any remaining foreign bodies. The wound was sutured and the complainant was discharged. Further stated that after 7 days, complainant returned for suture removal and it was found that the wound had completely healed. At the time of suture removal, complainant did not report any pain or other discomfort, even while walking. OP2 submitted that after removal of the sutures, the complainant did not return for further consultation or for follow up. OP2 has stated that at the time of the wound exploration conducted by him, there was no indication, either based on the X-ray or ocular examination, for a reasonable medical practitioner to suspect the presence of a residual foreign body. Further a surgeon would have no reason to suspect the possibility of a residual foreign body if the patient only exhibits a single scar at the site. It is also stated that under these circumstances even if a foreign body was removed from the complainant’s left foot 7 months after initial exploration conducted by OP2, it cannot be attributed to negligence on the part of OP2.
In the light of the documents available on record, evidence adduced by the parties and also the submission by the learned counsels appearing for the parties, we have to examine as to whether there was medical negligence happened on the part of OPNo.2? For that, the points to be decided are
a) Whether the 2nd OP had examined the complainant at 1st time on 21/12/2016 at OP No.1 hospital?
b) Whether failure to produce out patient record by OP No.2 from OP No.1 hospital in relating to the treatment of the complainant is deficiency of service or not?
c) Whether the 2nd surgery done for removing 2nd foreign body from the injury from another hospital amounting to deficiency of service of OP No.2?
Complainant pleaded that through Ext A1 he proved that he had visited OP No.2 on 23/01/2013 and OP2 applied band aid to the injury and again on 28/01/2013 he approached OP No.2, then OP2 applied another band aid. Though OP2 denied the said allegation of the complainant during the evidence time, OP2 admitted in page No.4 “Ext A1 പ്രകാരം complainant 2013 ൽ നിങ്ങളുടെ ഹോസ്പിറ്റലിൽ വന്നിട്ടുണ്ടെന്നും നിങ്ങൾ വേണ്ടത്ര പരിശോധന നടത്താതെ മുറിവ് തുന്നിക്കെട്ടിവിടുകയാണ് ചെയ്തതെന്ന് പറയുന്നു? ശരിയല്ല. 2013 ലെ Ext A1 പരിശോധിച്ചാൽ മനസ്സിലാവും patient വന്നത് pyogenic granuloma യും ആയിട്ടാണ് എന്ന്. Pyogenic granuloma കണ്ടതിനാല് ഞാന് copper sulphate dressing നല്കിയിരുന്നു. അങ്ങനെ ഒരു ചികിത്സ ഞാൻ 2013 ൽ patient നു നൽകിയിരുന്നു.” The said deposition of OP NO.2 evident that Ext.A1 is a correct document and OP2 had examined the wound of the complainant on 23/01/2013 and also on 28/01/2013 and done bandage at the injury site.
Ext.A2 and A3 reveals that on 21/12/2016 complainant visited OP2 and OP2 removed a glass piece from the wound. Ext.A4 reveals that at Thelicherry co-operative hospital on 28/07/2017 X-ray of (L) foot was taken. Foreign body found and on exploration on 02/08/2017 it removed. From Ext.A1to A4 we can realize, wound mentioned in Ext.A1 to A4 is the same and two foreign bodies were taken out from the said wound. 1st was removed from the injury on 21/12/2016 by OP No.2 at OP1 hospital and the 2nd one was removed on 02/08/2017 from Tellicherry co-operative hospital. It is also under stood as per Ext.A1 that the complainant was taken to ECHS policy clinic Kannur on 22/01/2013 having H/o injury sole of (L) foot back, C/o oozing from the wound (Non healing wound), Referred to Dhanalakshmi Hospital, Kannur (OP No.1) for consultation for surgeon. As per the referral Form patient was examined by General Surgeon of OP No.1 hospital ie OP No.2 on 23/01/2013, then the condition of wound was Inf. Wound left leg with pyogenic granuloma (means skin lesions that can develop after an injury). OP No.2 made dressing the injury with copper sulphate. Further on 28/01/2013, the patient was again examined by OP NO.2 surgeon and done band aid. It is seen that condition of the wound on 28/01/2013 was not recorded in the treatment summary. Also reveal that X-ray was not taken by OP No.2 on both the days for examining the condition of wound to ascertain, whether surgery is to be needed or not for pyogenic granuloma. The above said examination to the complainant categorically admitted by OP No.2 examined as cross examination. So there is no question that Ext.A1 is a forged document. OP2 contended that on 21/12/2016 the patient reported to the casualty in the OP No.1 hospital with reference from ECHS clinic, recorded in it that the patient had post traumatic foreign body under left foot 2 years without any hint regarding the nature and number of foreign body. OP No.2 further contended that there was a single scar at the injury site and on exploration a large glass piece’ was found inside scar site and the same was removed from the left foot. Further exploration did not show evidence of residual foreign body. The wound was sutured and sent the complainant after proper dressings with medicines. The complainant reported further 7 days for suture removal and at that time of suture removal he did not have any complaint of pain or other discomfort even on walking.
On perusal of Ext.A2 and A3 the OP record issued by OP No.2 dated 21/12/2016, does not reveal the condition of the wound at the time of the examination, and also the number of scar at the injury site and size of glass piece (Foreign body) removed from the wound. Without mentioning above said facts, OP No.2 simply issued the OP card and prescription. So from Ext.A2 and A3 we cannot believe the contention raised by the OP No.2 that there was only a single scar found at the injury site and the referral letter did not record any hint regarding the nature and number of foreign body. Complainant’s case is that he approached OP No.2, with X-ray and report from ECHS, Kannur. It is also pleaded that after taking X-ray to left leg, he was informed by the doctor at ECHS that there are two pieces of foreign bodies inside the injury.
Here it is to be noted that the said referred letter and X-rays is not before us. Pw1 deposed that the referral letter and other medical records brought by the patient from ECHS were received by the referred hospital. OP No.2 pleaded that as the complainant has failed to substantiate the above statement that the X-ray shows two pieces of foreign body and the by seeing the X-ray the doctor at ECHS informed that there are two pieces of foreign body inside the wound, by producing those records. On perusal of case file, it is seen that on 23/11/2021, complainant has filed a petition to cause production of the treatment of the complainant from the OP 1 hospital. After receiving copy of the petition, on the subsequent 4 posting dates OP NO.2 sought time of producing those documents. When the case was posted to 28/04/2022 with a direction to OP as last chance for production of the treatment file of the complainant, OP 2 filed affidavit stating that since the admission and treatment of the complainant pertains to in the year 2013, there may be a chance of misplacing the same. Further submitted that OP2 will continue his effort to trace it out and will ensure that they will produce the same before the commission as and when it is trace out.
But those documents are not so far produced before the commission. More over at the time of argument a contention was taken by OP2 that since the patient was treated as an outpatient, no case records are available with the hospital. Further submitted it is common knowledge that treatment records of outpatient will not be kept in the hospital and the treatment records were always retained by the respective patients. But the affidavit of OP NO.2 dated 27/04/2022 clearly evident that the complainant’s admission and the treatment was done in the year 2013 as alleged by the complainant and the treatment file was also kept in the OP No.1 hospital. Dw1 admitted that if an OP Number was given to a patient, the continuous treatment will be in the same OP Number. If the OP NO.1and 2 produced the treatment file of the complainant, it is possible for us to accept the statement given by the OP No.2 in his version that there was a single scar found in the injury site, condition of the injury at the examination time of OP No.2 and also all possible care was taken by the OP No.2 at the exploration of the injury and also the size of glass piece removed from the wound. The non –production of referral letter and the treatment file would draw an adverse inference against the OPs. Therefore we are of the opinion that OP hospital an dOPs2 and 3 failed to discharge their burden and as such the contention raised by OP No.2 in his version with regard to the said allegation of the complainant cannot be believed and there is negligence amounting to deficiency in service on the part of OPs.
Further Ext.A4 the treatment and prescription record of Thellicherry co-operative hospital dated 28/07/2017 clearly evident that on X-ray of (L) foot, foreign body was found in the wound and on 21/8/2017 the foreign body was removed. Hence from the material evidence Ext.A1 to A4, it is evident, though the complainant approached OP No.1 hospitalon 22/01/2013 and OP No.2 examined the infected wound with pyogenic granuloma and reviewed on 28/01/2013, OP No.2 without detecting the wound by taking X-ray, done only dressing of the wound. Further on 21/12/2016 also he removed a single glass piece by exploration without taking X-ray after the surgery. Ext.A2 also does not contain any advise by OP2 to the patient to come for follow up. Hence from the facts and circumstances of this case it is understood that the complainant suffered pain and discomfort for a period of 5 years and constrained to undergo treatment as stated in the complaint.
It is also pertinent to be noted that Ext.A5 is the lawyer notice issued by the complainant to OPs 1 to 3 on 25/08/2017. Ext.A6 to A9 reveal, that the said notices were duly sent to OPs and the said notices were received by the OPs. But none of the OPs had sent reply to Ext.A5
Advocate notice. This action of OPs also amount to negligence and deficiency in service on their part.
Here complainant could prove his case from the medical records available with him. But OPs failed to prove their contentions by producing treatment records available in the hospital. So the citations submitted by the learned counsel of OPs cannot be taken into account in the present case.
On consideration of the case, we are of the opinion that OPs 1 to 3 are jointly and severally guilty of medical negligence amount to deficiency in service.
In the result complaint is allowed in part. Opposite parties 1 to 3 are directed to pay Rs.1,00,000/- to the complainant as compensation for the mental and physical agony happened to the complainant. Opposite parties are also directed to pay Rs.25,000/- towards cost of this complaint to the complainant. Opposite parties 1 to 3 are directed to comply the order within one month from the date of receipt of the order. Failing which Rs.1,00,000/- carries interest @ 12% per annum from the date of order till realization. Complainant is at liberty to execute the order as per the provisions in Consumer Protection act 2019.
Exts.
A1-Referal form dated 22/01/2013
A2 –Prescriptions issued by OP dated 21/12/2016
A3- Prescriptions issued by OP
A4- Prescriptions issued by Thalassery co-operative hospital dated 28/07/2017
A5-Copy of lawyer notice
A6 to A8-Postal receipts
A9-Acknowledgement card
Pw1- Mother of the Complainant
Dw1-OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
