BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 23/2009 Filed on 30.01.2009
Dated : 16.02.2011
Complainant:
Dr. K. Gopalakrishnan, medical practitioner, residing at Mathoor Nandanam, Sasthamcotta P.O, Sasthamcotta, Kollam.
(By adv. R. Narayan)
Opposite party:
Dr. K.P. Haridas, Chairman & Managing Director, Lords Hospital, Thiruvananthapuram.
This O.P having been heard on 22.11.2010 the Forum on 16.02.2011 delivered the following :
ORDER
SMT. S.K. SREELA, MEMBER
The pleadings in the complaint are as follows: On 29.01.2001 the complainant consulted the opposite party for the complaint of bilateral inguinal hernia. As directed, he was admitted to the said hospital on 30.01.2007 for the surgical procedure. On 31.01.2007 the complainant underwent bilateral laproscopic hernia repair under general anesthesia. The patient had severe pain over the pubic joint. He was discharged on 02.02.2007 with advice to review after one week. The complainant remitted Rs. 34,950/- towards surgical and other charges. Subsequently it was found that the pain relief was temporary. He continued to have bilateral thigh adductor spasms, pain along the pubic symphisis, inguinal region and ischial tubersoties. Hence he was again taken to the Lords Hospital on 11th day of April 2007. An X-ray was taken which showed periosteal reaction and osteolysis of the pubic symphysis and according to opposite party this was presumed to be due to lingering soft tissue infection and was therefore treated for ten days with intravenous clindamycin and oral cefdinil. He was discharged on 20.04.2007 with advice to continue oral clindamycin and cefzine for 20 more days. As such he returned to Sasthamcotta and resumed his work as a general practitioner. He continued to have pain along both thighs, right isclial tuberosity and pubic but it was controlled by paracetamol and indomethacin as prescribed by the opposite party over telephone. Towards the middle of October he developed fever but it settled within a few days but left him with pain of all the joints and knees worsening of this hip pain and pain along the right thigh. He continued to take anti inflammatory drugs as per the advice of the opposite party. During the middle of November the pain had worsened. The pain along the right thigh, hip and knee increased within a few days. He was feeling very much fatigued and was having very much difficulty in ambulation. Then the complainant had no other go but to consult other specialist doctors. As such he was taken to Sree Chithra Thirunal Insitute of Medical Science and Technology on 23.11.2007 for MRI. The result shows that there is collection of fluid in right inguinal region and pubic disastases with osteitis etc. Then he was taken to Jubilee Memorial Hospital, Thiruvananthapuram on 27.11.2007 for evaluation. There he was found to be anaemic and hence he was given two pint of blood transfusion. Since he was having recurrent pain he was investigated for tuberculosis, but the result was negative. Then as per opinion of the Orthopaedicians he was sent to another centre of choice for exploration of the previous surgical site. For evaluation and detailed check up he was admitted to Cosmopolitan Hospital on 01.12.2007. Investigations were done and he was treated in consultation with physician, nephrologists, orthopaedician and physiotherapist. His condition had slightly improved. He was discharged on 16.12.2007. Subsequently he was referred to Sree Uthradam Tirunal Hospital for further treatment and management. There he was admitted on 06.01.2008. He was discharged on 16.01.2008. On 10.03.2008 he was again admitted to the said hospital. Re-exploration of left and right hip was done on 11.03.2008 and 20.03.2008 respectively. On 11.10.2008 he was again admitted for hip replacement. Right THR done on 11.10.2008 and left done on 14.10.2008. He was discharged on 28.10.2008. He started walking with crutches. Now the complainant is walking with the help of crutches. The complainant has pleaded that the opposite party has not taken complete aseptic precautions for the performance of the laproscopic herneoraphy. Proper investigations were not done by him. The infection was not detected in time. Even after detecting the infection proper treatment has not been given to the complainant which resulted in spread of infection to the nearby bones and joints. The opposite party has not taken minimum degree of care in the surgical procedure and subsequent treatment. There is deficiency of service on the part of the opposite party. Hence this complaint.
Opposite party has not filed any version in this case and they have not contested the allegations levelled against them. They remain exparte.
Complainant, PW1, has filed his affidavit and marked Exts. P1 to P23. PW1 has not been cross examined and hence his affidavit stands unchallenged.
The points for consideration are:-
Whether the complainant was forced to undergo bilateral total hip replacement due to the negligence of the opposite party?
Whether the opposite party has acted and has discharged his duties in such a manner as would be expected from a prudent contemporary in a similar situation?
Whether there has been any deficiency in service on the part of the opposite party?
Whether the complainant is entitled for the reliefs claimed?
Points (i) to (iv):- Complainant has pleaded that he was admitted to the opposite party's hospital on 30.01.2007 for bilateral laproscopic hernia repair on 31.01.2007. After the surgery, though the complainant was discharged with an advice to review after one week, the complainant developed very severe pain within one week and that the opposite party assured the complainant that the pain will subside within a short period. That even though the complainant repeatedly said that he is having exeruciating pain over the pubic bone area, the opposite party never cared to take the matter seriously. That the complainant was again taken to the opposite party's hospital on the 3rd week of February as the pain over the pubic bone and along the inguinal region and left and right thigh continued. That this time a small collection of fluid was detected bilaterally close to the inguinal canals, the collection on the left side was drained, but the collection on the right side was not drained and there was mild relief of pain along the left thigh. The fluid collection was not properly drained. Several times the complainant contacted the opposite party and made his complaints but he assured the complainant that the pain will be relieved. That the treatment given by the opposite party was not proper or sufficient. Even though the infection temporarily subsided at short intervals it gradually developed and spread over all his joints of hip. That during this period with multiple courses of antibiotics he remained a febrile. But worsening pain and immobility led to surgical exploration of hip joints and drainage of pus and finally he was forced to undergo bilateral total hip replacement. By the time he also became a diabetic due to the medicine administrated by the opposite party.
The complainant has pleaded that as he, who is also a doctor, was not satisfied with the treatment given by the opposite party, decided himself to take a CT of pelvis. Ext. P3 is the scan report. As Ext. P3 it is reported that focal thickening and enlargement of left spermatic cord and sheath with fat stranding around it just below the inguinal ligament, possibility of focal funiculitis may be considered. Further in Ext. P3 it has been reported that “there is focal thickening in the spermatic cord just below the inguinal ligament on right side also. The thickening is noted in the vas deferens and appears to be a focal hypodensity-? Cyst”. Anyhow, the opposite party has not advised the complainant that CT scan should be performed and the opposite party has not explained the reason for non-performance of CT scan. According to the complainant, amongst the collection of fluid detected bilaterally close to the inguinal canals, the collection on the left side was drained, but however no bacteriological examination was performed on this fluid and the collection on the right side was not drained and the same was left to resolve spontaneously. Augmentin was not recommended for a week. Further the complainant has sworn that, as the pain aggravated he was again taken to the opposite party's hospital on 11.04.2007 and the X-ray was taken either for bacteriological examination or histopathological examination. It has been further sworn by the complainant that in mid October he developed pain on the hip joints and knees with worsening of pain along the right thigh. Though the complainant took anti inflammatory drugs as advised by the opposite party, the pain had worsened. Complainant swears that by this time he lost faith in the treatment adopted by the opposite party and he was taken to SCTIMST. There he was with a number of investigations for possible lumbar plexopathy or a myofascitis. An MR scan of the lumbar spine and pelvis was done and the results were interpreted as consistent with a myofascitis and septic arthritis that was responsible for the pain.
According to the complainant, his hip was assessed by an orthopaedician at Jubilee Memorial Hospital on 27.11.2007, who considered chronic pyogenic septic arthritis and recommended more antibiotics. It has been further sworn in the affidavit that the orthopedician at SUT Hospital performed limited arthrotomies of both hip joints and washed thick pus from both joint cavities. Cultures grew Pseudomonas seroginosa and coagulase negative Staphylococcus that confirmed pyogenic arthritis that is almost certainly due to a hospital acquired infection. As per Ext. P14, discharge summary it has been noted as culture and sensitivity: Pseudomonas, coagulase -ve staphylococcai. In Ext. P15, it has been noted under the clinical features that, “During the past one year with multiple courses of antibiotics, he remained afebrile but worsening pain and immobility led to surgical exploration of the hip joints and drainage of pus. The pus culture grew pseudomonus aeroginosa and coagulase negative staphylococci”. In Ext. P16 also the same has been mentioned. It has been stated in Ext. P15 and P16 that this patient developed pubic osteitis shortly after laparoscopic inguinal hernia repair one year ago.
The complainant has stated that he was again admitted to SUT Hospital as ESR and CRP remained elevated and he was discharged from SUT Hospital under the advice that unless hip replacement surgery is done he would not be able to walk, which was the only treatment option available to clear the joint space of infection to his pubic bone. The complainant submits that major hip replacement surgery had to be done due to the negligence on the part of opposite party. According to the complainant, pseudomonus aeroginosa and coagulase negative staphylococcus in the culture confirm that the pyrogenic arthritis suffered by the complainant is due to a hospital acquired infection, in particular due to use of unsterilized instruments for surgery by the opposite party. Complainant alleges that the opposite party has used unsterilized and unclean instruments for surgery and failure and under appreciation of infection and prescription of inadequate antibiotics led to the progression of infection eventually requiring hip replacement surgery.
The learned counsel for the complainant has produced the medical literatures detailing the Pseudomonas infection. As per the extract from the review in Cutaneous manifestations due to pseudomonas infection (Department of Dermatology, Hospital General de Alicante, Alicante, Spain), it has been stated that “Pseudomonas aeruginosa (PA) is a Gram-negative bacillus capable of producing infections, which mainly affect patients with immunosuppression, and usually occur in a hospital environment. PA can produce infections in many different organs, including the skin and soft tissue”. As per the extract from 'American Journal of Infectious Diseases', in Incident of Pseudomonas aeruginosa in Post-Operative Wound Infection, it has been stated that deep seated sepsis developing a few days after an operation and before the wound has been dressed, reflect a theatre infection. In the conclusion portion it has been concluded that the infection appears to be common in hospitals with relaxed hygienic measures. In page 889 of 'Harrison's Internal Medicine', it has been stated that most P. aeruginosa infections are acquired in the hospital, where intensive care units account for higher rates of infection than other hospital units................ Many potential reservoirs of infection have been identified in the hospital environment, including respiratory equipment, cleaning solutions, disinfectants, sinks, vegetables, flowers, endoscopes, and physiotherapy pools. Most reservoirs are associated with moisture. The extract from the website in OCC Switzerland, it says 'Pseudomonas aeruginosa is a gram negative bacillus which is notorious for causing nosocomial or hospital borne infections. Pseudomonas is an opportunistic pathogen. It frequently attacks patients whose immune system is suppressed such as diabetics, patients on chemotherapy, patients who have undergone a major surgery or those who have invasive devices in place for more than one week'. The meaning of Nosocomial in Morky's Medical Dictionary 8th edition has also been produced by the learned counsel for the complainant wherein it has been stated that “A nosocomial infections are ones that have been caught in a hospital. Nosocomial infection is specifically one that was not present or incubating prior to the patient being admitted to the hospital but occurred within 72 hours after admittance to the hospital'.
The opposite party has not contested the allegations levelled against him. The opposite party has neither bothered to file their version denying the allegations in the complaint against him. In the absence of any evidence to controvert the allegations in the complaint we find that the case of the complainant stands unchallenged. The infection as discussed above, has occurred within the time stipulated in the opposite party's hospital. The complainant has been affected with the infection due to lack of proper care by hospital management. The opposite party has discharged the complainant without proper monitoring which itself is deficiency in service. During the post operative period, the complainant has developed severe complications due to infection. For about 2 years the complainant had suffered from complications which can be attributed to the negligence of the opposite party. After the surgery for hernia was done at the first hospital, the complainant should have been given proper care and treatment. The opposite party should have performed necessary blood culture and other cultures so as to adopt a specific treatment. From the pleadings in the complaint it can be concluded that the complainant was not attended to properly. The complainant should have been subjected to bacteriological examination namely culture etc. The opposite party ignored obtaining CT scan, biopsy or culture report pus discharge examination which would have facilitated the treatment in a specified direction. The opposite party has not done such examinations which would have confirmed the pyogenic arthritis that is due to a hospital acquired infections. No early attention has been given by the opposite party to the post operative complications caused to the complainant.
The complainant has produced documents supporting his allegations and the medical literature are also produced. It is a settled position as per the decision of the Hon'ble Supreme Court in 2010 (V) Supreme Court cases 513 that it is not necessary to obtain expert opinion and the consumer Forum can give appropriate relief on the basis of summary trial on affidavits. Normally the burden of proof is on the complainant. The complainant has furnished the documents and evidence to corroborate his pleadings. Therefore it was the duty cast upon the opposite party to prove that no sort of negligence took place. Thus the onus of proof has shifted upon the opposite party to substantiate the fact that there was no negligence on his part which the opposite party has failed in the present case. In the absence of any evidence to controvert the allegations pleaded in the complaint, we find that the opposite party did not care to perform the essential examination of the complainant after the complainant underwent bilateral laproscopic hernia which can be attributed to negligence on the part of the opposite party. Negligence means omission to do something which a reasonable and prudent person guided by the considerations, which ordinarily regulate human affairs would do something, which a prudent and reasonable person would not do. As per Modi's Medical Jurisprudence, professional negligence or medical negligence may be defined as want of reasonable degree of care and skill or wilful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to his bodily injury or to the loss of his life. If a doctor accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. The law requires a fair and reasonable standard of care and competence which is unfortunately lacking in this case.
From the above discussions, we find that the complainant has succeeded in establishing his complaint. Complainant has claimed an amount of Rs. 20,00,000/- towards compensation and costs. We have perused the bills and such other documents produced by the complainant. Complainant has produced the detailed bills and receipts which go to prove the expenses incurred by the complainant which comes to a total amount of Rs. 9,41,041.87. Considering the entire facts and circumstances of the case, we find that the complainant is entitled for refund of the said amount of Rs. 9,41,041.87 rounded to Rs. 9,42,000/- from the opposite party as the complainant had to meet the said expenses solely due to the negligence of the opposite party. Further the complainant who is a doctor by profession has pleaded that he was an energetic and busy general practitioner who was earning more than Rs. 25,000/- from his profession and that now he has lost his professional career as he is unable to do his daily avocations without the help of others. The pleading that he was earning Rs. 25,000/-, which has not been specified, has not been corroborated with supporting documents. Anyhow, the serious consequences of the negligence on the part of the opposite party has definitely affected the complainant's profession. The mental sufferings and other hardships suffered by the complainant are also severe. Hence we find that an amount of Rs. 2,50,000/- would suffice towards loss of professional income, compensation and costs.
In the result, the complaint is allowed. Opposite party shall pay Rs. 9,42,000/- along with Rs. 2,50,000/- towards compensation and costs. Time for compliance 2 months from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of receipt of the order by the opposite party.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of February 2011.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
jb
C.C. No. 23/2009
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Gopalakrishnan
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of IP & OT Bill dated 02.02.2007
P2 - Copy of Discharge summary certificate dated 02.02.2007
P3 - Copy of CT Scan Report dated 26.02.2007 issued by Metro
Scans.
P4 - Copy of Scan Report dated 05.04.2007 taken at RCC, Tvpm.
P5 - Copy of the discharge summary dated 20.04.2007 by opposite
party.
P6 - Copy of the MRI Report issued from SCTIMST dated
23.11.2007
P7 - Copy of the bills from SCTIMST (Total amount Rs. 13,830/-)
P8 - Copy of discharge summary dated 30.11.2007 of Jubilee
Hospital.
P9 - Copy of the Bills from Jubilee Hospital (Total amount
Rs. 4,559/-)
P10 - Copy of discharge summary dated 16.12.2007 of
Cosmopolitan Hospital.
P11 - Copy of Bills from Cosmopolitan Hospital (Total amount
Rs. 1,17,700/-)
P12 - Investigation Report from SUT Hospital dated 11.01.2008.
P13 - Copy of bills from SUT Hospital (total amount Rs. 43,834/-)
P14 - Copy of the discharge summary dated 16.01.2008 of SUT
Hospital.
P15 - Copy of discharge summary dated 14.02.2008 by Dr.
Govindan's Hospital.
P16 - Copy of discharge summary dated 02.03.2008 by Dr.
Govindan's Hospital.
P17 - Copy of discharge summary from SUT Hospital dated
12.05.2008.
P18 - Copy of bills from SUT Hospital
P19 - Copy of the discharge summary from SUT Hospital date
28.10.2008
P20 - Copy of the bills issued from SUT Hospital
P21 - Copy of Bill & receipt ABC Medicals dated 02.10.2008 for
Rs. 70,000/-.
P22 - Copy of bill & receipt dated 15.10.2008 for Rs. 70,000/-.
P23 - Copy of various medical bills.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
Sd/-
PRESIDENT
