Date of Filling : 15.12.2014.
Date of Disposal : 24.03.2016.
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.73/2014
(Dated this the Thursday the 24th day of March 2016)
Palaniappan,
S/o. Karuppan,
No.280 A, Pavalamalli Street,
Poonga Nagar,
Thiruvallur Taluk and District. … Complainant.
/ Versus /
1. Dr. G. Manicks,
No.47, Mothilal Street,
Thiruvallur Taluk and District.
2. Logidasans’ Hospital,
No.14, Rajaji Street,
Manavala Nagar,
Thiruvallur District. … Opposite parties.
This complaint is coming upon before us finally on 10.03.2016 in the presence of Thiru. S. Muthukumaravel, Counsel for the complainant, Thiru. S.K. Adam, Counsel for the 1st and 2nd opposite parties and upon hearing arguments of both sides and having perused the documents and evidences of 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 parties seeking direction to pay a sum of Rs.50,000/- being the additional expenses incurred for the second surgery, to pay Rs.50,000/- being the expenses of the first surgery, to pay Rs.2,00,000/- towards compensation for mental agony and suffering, to pay the above amounts with interest @ 12% p.a. and to pay the cost of Rs.6,000/-.
- The brief averments of the amended complaint is as follows:-
The complainant is the husband of Mrs. Annapoornam, who was died on 24.05.2014. The said Annapoornam was fell down on the bathroom at his house on 09.04.2013 and later admitted at 2nd opposite party’s hospital on the advise of the 1st opposite party. The 2nd opposite party has diagnosed the complainant’s wife and stated that there was a fracture of right femur. On 11.04.2013 a surgery was done and a plate was fixed and the said Annapoornam was discharged on 17.04.2013. A sum of Rs.60,000/- was spent for the treatment to the 2nd opposite party. The complainant’s wife Annapoornam was returned to house with all of hope that the injury / wound will be cured within a reasonable time.
2. After the surgery, the 2nd opposite party has informed the complainant that “Annapoornam’s bone are so weak and the screws are not properly fixing in a position, in spite of that they managed to do the surgery and advised the complainant’s wife to walk with walker after the dressings were removed. But the 2nd opposite party has discharged the complainant’s wife without removing the dressing and promised to remove the dressing by coming to the complainant’s home.
3. The 1st opposite party has come to the complainant’s house to remove the dressing and informed that the complainant’s wife not recovered since the muscle in the wounded part was not fully joined with the body, because of the blood was leaked in regular intervals in the knee point. After 2 days the 1st opposite party has came back to house and diagnosed that the screws are available to naked eye and advised the complainant’s wife to go for the SRMC, Porur to remove the screws (since it was not fitted) to remove the steel plate and re-fix it. The 1st opposite party has also issued a reference letter dated 27.04.2013 and advised the complainant’s wife to go to the said hospital.
4. As per the advice of the 1st opposite party, the complainant’s wife was admitted at SRMC on 28.04.2013 and from there, the plates has been removed and re-fixed and after that, the complainant’s wife was discharged on 18.06.2013. The complainant suffered a lot of pain and suffering during this days which was happened because of the negligent act and poor treatment of the opposite parties. If the opposite parties had done a treatment with the most successful theory then the complainant’s wife will not be suffered for the second surgery and no chance of spending Rs.60,000/- for the second surgery.
5. The method adopted by the opposite parties and the theory conducted to diagnose the patient was not at all a successful one and even if it is successful one, when the opposite parties known that the bones are not healthy they ought to have refer to some other method of treatment and not treated the method under which they treated by doing the surgery, the fact that the fracture may also be cured by some other treatments.
6. While the complaint dated 10.09.2013 is in progress, the complainant’s wife Annapoornam died on 04.05.2014 because of serious illness and the pain caused during the last periods of his life, particularly when the first surgery was not done proper. After the death of Annapoornam, the complainant continued the legal aid petition and in which the opposite parties has refused to compensate the complainant.
7. Because of the negligent act of the opposite parties, the complainant has lost his partner and suffered loss and spent an additional sum of Rs.60,000/- and suffered mental agony & hardship for the past 2 years. The act of the opposite party is purely of medical negligence. Hence, the complaint.
8. The contention of the written version of the 1st and 2nd opposite parties is briefly as follows:-
The opposite parties denies the allegations made in the complaint except those that are admitted herein. The complainant is not a consumer and on this ground alone and this complaint is liable to be dismissed. The complainant wife’s sugar levels were high and her blood hemoglobin was low. After diagnosing the patient’s condition, it was well explained to the complainant’s wife and the complainant about the need of surgery with plate fixation and what will be risk factors and high infection rate owing to her poor sugar control and old age and got informed, everything was well explained to the complainant and his deceased wife of their understanding. Both were well understood and accepted for the surgery and signed in the consent letter. With that condition she was taken up for surgery on 11.04.2013 after bringing down her sugar level and giving pre-operative blood transfusion with two units of packed cell. She was operated and fixed with locking plate fixation which is the recent method of fixation of supracondylar fracture in old age and osteoporotic bones.
9. The complainant’s wife was ambulated 2nd post operative day and she was discharged on 5th operative day in good, stable condition for that the opposite parties have the photographic evidence of the complainant’s wife standing and smiling with walker and advised injection insulin for her glycemic control. She was explained about the poor bone quality and advised non weight bearing, frame walking. The 1st opposite party while asking the deceased wife of the complainant for regular dressing, she and the complainant expressed about their inability of transporting and financial crisis, understanding their position and on humanitarian grounds the 1st opposite party accepted voluntarily to visit their house for dressing. On the acceptance, the 1st opposite party went to the house of the complainant and did the sterile dressing on 8th and 11th post-operative day.
10. When at that time, the complainant and his deceased wife were very much happy and they said they should very much thankful to him what the treatment he had given at their door steps and they said, they will not forget throughout their life the service given by the 1st opposite party. After 5 days the complainant came to the clinic of the 1st opposite party, and requested to come to his house as the deceased wife of the complainant had fall again when she attended to go for toilet without any support. The 1st opposite party even he had his clinic work, want to help them went to the complainant’s house and suspected impending hematoma due to recent fall and asked the complainant to shift to hospital, which the complainant and his wife denied and asked the 1st opposite party to give drugs and dressing.
11. Further, the complainant’s deceased wife was not getting any insulin injection as advised by the 1st opposite party at that time. After 2 days the 1st opposite party, on the request of the complainant again went to the house of the complainant and revived her and found the wound got infected. Hence, the 1st opposite party referred her to higher centre (Sri Ramachandra Medical College Hospital, Porur, Chennai) for wound cure by plastic surgery and further management. After that, the 1st & 2nd opposite parties had no information about the condition of the complainant’s wife. As the complainant’s wife had subsequent fall she developed hematoma which got infected which was clearly stated in the reference letter to SRMC on 27.04.2013.
12. There is no medical negligence, negligent act and poor treatment of the opposite parties as stated in the complaint. Regarding the statement in Para no.7, the opposite parties denies all the allegations and submitted that the recent method which is available and best was done by the opposite parties. Even the higher centre that is the SRMC also not found any fault on the treatment given by the opposite parties and they are also not suggested any other treatment. The fault is on the side of the complainant and not on the side of the opposite parties. There is no other treatment method for this type of fracture except surgical intervention which will have quicker mobility and fracture healing as stated by orthopedic books. There is a chance of vascular injury, if the fracture treated conservatively. The allegation in Para no.8 is also not true and correct there is no evidence to show the mistake of the opposite parties. And even in the complaint it was stated even after the surgery at SRMC also the complainant’s wife has not been able to walk. If it is so, why the complainant not found fault on the side of the SRMC but to find fault on the opposite parties is only to grab money in anyway. There is no medical negligence on the part of the opposite parties. Hence, it is liable to be dismissed.
13. In order to prove the case on the side of the complainant, the proof affidavit submitted for his evidence and Exhibit A1 to A6 were marked. While so, on the side of the 1st and 2nd opposite parties, the proof affidavit is filed and no documents filed on the side of the opposite parties.
14. At this juncture, the point for consideration before this Forum is:-
- Whether there is any medical negligence and thereby any deficiency of service on the part of the opposite parties as alleged in the complaint?
- To what other reliefs, the complainant is entitled to?
15. Written arguments filed on the side of the opposite parties and oral arguments is adduced by both sides.
16. Point no.1:-
On perusal of the proof affidavit filed on both sides, it is learnt that the wife of the complainant by name Annapoornam was admitted at 2nd opposite party’s hospital on 09.04.2013 for the fracture in the right femur sustained due to the fall in the bathroom and in this connection a surgery was done on 11.04.2013 and thereafter she was discharged on 17.04.2013 and to that effect a sum of Rs.60,000/- was spent by the complainant. This fact has been revealed through Ex.A1 discharge summary which is issued by the opposite parties. It is further learnt that even after the surgery, the complainant’s wife was not recovered since in the muscle, the wounded part was not fully joined with the body because of the leakage of blood in the regular intervals in the knee joint. Inspite of continuous treatment given by the 1st opposite party in the complainant’s house itself the complainant not cured due to the subsequent fall of the complainant’s wife in the toilet and thus got infected and therefore the 1st opposite party referred the complainant’s wife for further treatment to the SRMC hospital through Ex.A2.
17. At the outset, on going through Ex.A3 the discharge summary issued by SRMC hospital the said patient Annapoornam was admitted on 28.04.2013 and discharged on 18.06.2013 with the observation that the symptomatically better now and hence being discharged with the following advice: “GC - Fair, Vitals stable, Wound healthy, Dressing insitu., and prescribed some medicines and to continue non weight bearing mobilization with walker support with use of knee brace and to continue high protein diet. These above facts are all admitted by both the parties.
18. In such circumstances, on further perusal of the averments of the complaint as well as the proof affidavit of the complainant, it is narrated that because of the negligent act and poor treatment of the opposite parties the complainant’s wife was compelled to undergo second surgery at SRMC and unnecessarily spent a sum of Rs.60,000/- and thereafter the complainant’s wife made an complaint which is marked as Ex.A4 before the legal aid cell on subsequently while the same is pending with legal aid the complainant’s wife was died on 24.05.2014 the death certificate is marked as Ex.A6. So, the complainant has filed a petition to permit him to continue the legal aid petition which is marked as Ex.A5.
19. At this juncture, the vital point to be taken into consideration is as to whether the death of Annapoornam, the wife of the complainant is due to the poor and negligent act of the opposite parties. Infact, as per the documents placed before this Forum the wife of the complainant was died only on 24.05.2014 that is nearly after one year of the surgery. Moreover, none of the documents shows that the death caused is only due to the surgery done by the opposite party. Furthermore, it is crystal clear from Ex.A3 after taking treatment in SRMC hospital the wife of the complainant was cured from the alleged fracture and consequent infection and discharged the complainant’s wife on 18.06.2013 with some advice. Thereafter, no document filed to show for any complication suffered by the wife of the complainant in connection with the alleged Supracondylar Femur Plate Osteosynthesis on the right side. If it is so, it is crystal clear that the death of the wife of the complainant is not at all caused as alleged by the complainant in the complaint. Moreover, no post mortem certificate is filed to prove the death as alleged in the complaint. At the outset, it needless to say the wife of the complainant died nearly after one year of the second surgery was done to the complainant’s wife. Therefore, it goes without saying that there is no concrete and consistent evidence to conclude that the death of the wife of the complainant caused only due to the negligent and poor performance of the first surgery done by the opposite parties and thereby it can be presumed that the death of the complainant’s wife is a natural one.
20. At this juncture, it is pertinent to note that as to whether the opposite parties has done the first surgery to the complainant’s wife in their hospital on 11.04.2013 by following correct procedure. In such circumstances, it is stated that the complainant’s wife was a known diabetic and hypertensive for the past 7 years and on irregular treatment and her sugar levels were higher and her hemoglobin was low and therefore, she was fully informed about the risk factors are high infection rate owing to very poor sugar control and old age and the same was very well understood and then only the complainant’s wife accepted for the surgery and signed in the consent letter. In this fact there is no serious objection on side of the complainant.
21. At the outset, this Forum wants to enlighten that only because giving consent letter the responsibility fixed on the opposite parties in following the correct procedure and method as relied in the text without any negligent act during treatment will not goes out. It is the bounden duty of the opposite party to take utmost care in such a surgery since as narrated by the opposite party that as per the text management of distal femoral fractures remains a challenge to orthopedic surgeons and they are often difficult to treat because they are usually a result of high velocity trauma, producing comminution and unstable fracture pattern. It is further pointed out in the text that the identified risk factors for reoperation to promote of complications included open fracture, diabetic, smoking, increased body mass index and shorter plate length. Most factors are out of surgeon control but are useful when considering prognosis.
22. It is further narrated by the opposite parties that Supracondylar Fracture of Femur are a challenge to treat surgeons, as they are associated with significant morbidity and complication rates. Internal fixation is the choice of treatment in supracondylar fractures of femur and it is suggested that the Locking compression Plate (LCP) is a good fixation system for Supracondylar Fractures Femur and it is of great use in elderly patient with severe osteoporosis bone. So, Locking Compression Plate is an important implant in the treatment of supracondylar femoral fractures especially when fracture is associated with comminution and osteoporosis. The opposite parties have contended that they have followed the correct procedure as relied in the text books. Regarding the orthopedics related research and thereby they have given good and correct treatment to the wife of the complainant and even after discharge the 1st opposite party himself went to the house of the complainant to give drugs for dressing. But the complainant’s wife was not getting any injection insulin as advised by the 1st opposite party and therefore the wound of the complainant’s wife got infected and so that there is not medical negligence on the part of the opposite parties.
23. At the outset, this Forum has to see clearly regarding the letter which is marked as Ex.A2 that there is a recital that Mrs. Annapoornam, 62 years had subsequent fall at home and got infected whereas in Ex.A3, the discharge summary of SRMC hospital it is clearly stated that “Three weeks old infected right Supracondylar Femur Plate Osteosynthesis”. There is no mentioning about the new fracture or subsequent fall as quoted by the 1st opposite party in Ex.A2. It is further seen, in Ex.A2 that the injury got infected due to the subsequent fall only. But no such reference in Ex.A3 or written version of the 1st & 2nd opposite parties. Therefore, such averments is completely false in order to escape from the clutches of law.
24. For arguments sake, if it is taken as that the opposite party had rich experience in the orthopedics surgery and qualified person, why they have not come forward to give better treatment and cure the infected wound sustained to the deceased wife of the complainant in their hospital itself. But per contra the opposite party simply referred the patient to SRMC for further management at the last stage. Therefore, it is crystal clear that though there is a risk factor is always in such surgery, the opposite party being an expert in the particular orthopedic field, they ought to have known about the method of treatment also to cure the infection of the wound if occurred subsequently or otherwise they would have referred the patient even in the initial stage to the higher authority or hospital who have good facilities. But they have failed to do so which leads to spend additional expenses to the complainant for further treatment. Not only that though the complainant spent nearly Rs.45,000/- for the first surgery which was done by the opposite parties but the result of surgery is not benefited to the complainant.
25. In the light of the above facts, it goes without saying that once relevant fees received by the opposite party they are having bounden duty to cure the concerned disease by way of correct and relevant treatment or otherwise they are liable to return the fees spent by the patient. In such a way, in this matter, the opposite parties are liable to refund the amount of Rs.45,000/- received for the first surgery and also for a sum of Rs.60,000/- towards additional expenses spent by the complainant for second surgery which is only due to the improper practice and negligent act of the opposite parties.
26. Regarding other reliefs and compensation claimed by the complainant, he is not entitled since the complainant’s wife already expired and the cause of death is not for the reason as alleged in the complaint against the opposite parties. Not only that since the wife of the complainant expired, he is not entitled for any compensation since it is the individual relief. For the foregoing, among other grounds, it is decided that the opposite parties are only liable to refund the fees collected by them and the additional expenses spent by the complainant for the second surgery to his wife in the SRMC hospital, Chennai which is not at all specifically disputed by the opposite parties. Thus the point no.1 is answered accordingly.
27. Point no.2:-
In view of the decision arrived in point no.1, the complainant is entitled to refund of the fees of Rs.45,000/- spent for the first surgery and Rs.60,000/- spent for the second surgery totally of Rs.1,05,000/- only with cost. At the same time, the complainant is not entitled for any other reliefs as prayed in the complaint. Thus point no.2 is answered accordingly.
28. In the result, this complaint is allowed in part. Accordingly, the 1st & 2nd opposite parties are jointly or severally directed to pay the medical expenses only, incurred by the complainant for the two surgeries undergone by the deceased wife of the complainant to the tune of Rs.1,05,000/- (Rupees One Lakh Five Thousand only) within a month with a cost of Rs.5,000/- towards cost of litigation of this complaint. Regarding other reliefs, this complaint is dismissed.
The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which the said amounts shall carry interest at the rate of 9.5% till the date of payment.
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 24th March 2016.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 17.04.2013 | Discharge summary | Xerox copy |
Ex.A2 | 27.04.2013 | Letter issued by the 1st opposite party | Xerox copy |
Ex.A3 | 18.06.2013 | Discharge summary by SRMC | Xerox copy |
Ex.A4 | 10.09.2013 | Complaint before the legal aid | Xerox copy |
Ex.A5 | 09.06.2014 | Complaint before the legal aid | Xerox copy |
Ex.A6 | 15.06.2014 | Death certificate of Annapoornam | Xerox copy |
List of documents filed by the opposite parties:-
Nil.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT