Date of Filling     :15.10.2010

                                                                                          Date of Disposal :26.11.2015

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR

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

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

CC.44/2010

Tuesday, the 26^th  day of November 2015

Mr.Pannerselvam

S/o Munusamy,,

No.78, Mullai Nagar, Orrikai,

Kancheepuram.                                             …Complainant

                                                                      /Vs/

1. Dr.Vijayaraghavan

Professor of Orthopedics,

Sri Ramachandra Hospital,

Porur, Chennai - 600 116.

2. The Dean , M/S Sri Ramachandra Medical Center,

No.1, Ramachandra Nagar,

Porur, Chennai - 600 116.…Opposite Parties

                                                            ….

This complaint was originally filed before the District Consumer Disputes

Redressal Forum, Chengalpattu on 11.03.2008 and taken on file on 27.03.2008 in CC.28/2008  and then it has been transferred to this Forum as per order of the Hon’ble High Court, Chennai in W.P.No.18708 and 18709/2009 on 04.08.2010 and received by this Forum on 15.10.2010 and taken on file on the same day itself in CC.NO.44/2010.

This Complaint is coming upon before us finally on 19.11.2015 in the

Presence of Thiru.L.Thanigaivel, Advocate on the side of the complainant and Thiru.A.R.Poovannan, Advocate for the opposite parties and upon hearing arguments on the side of the complainant and perused the documents and evidence, 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 seeking direction that the opposite party has to pay a sum of Rs.10 lakhs for rectification of the mistake committed by the opposite parties and  to pay a sum of Rs.2,00,000/- towards compensation for  mental torture and agony suffered by the complainant with cost.

The Brief averments of the complaint as follows:

                        1. The complainant has been admitted the 2^nd opposite party concern for the treatment that he has fell down when some foot passenger of the moving bus hitted by him on 22.02.2006 around 9.30 am, while he was walked on road and he was admitted on 23.02.2006 in the hospital, the 1^st opposite party had given the treatment to this complainant. The 1^st opposite party diagnosed the complaint and he has concluded that the complaint was sustained injury in the right elbow and right hip.

                        2. After that, the 1^st opposite party gave the treatment to the complainant for right side fracture neck and undisplaced fracture coronoid right elbow and with the consent of the complainant, the 1^st opposite party would operate the right side of the hip replacement of the complainant and the same was done on  24.02.2006, and the opposite parties collected the necessary charges. As per the direction of the 1^st opposite party the operation, acetabular trial component fixed position were checked in C-arm and femoral neck osteotomised and collar prepared femoral canal reamed with size 10 broach size 10 femoral trial component fixed and position found to be satisfactory under C-arm.

                        3. That after the operation was held, the 1^st opposite party has given a Gait Training and the complainant also followed the procedure of the Gait Training, but he could not recover from such ailment. After that he approached the opposite parties and as per the direction of the 1^st opposite party, X-ray was taken in the operative part, and on that day only, he found that the thigh bone are affected in the thigh area and the same was accepted by the opposite parties.

                        4. Though, the complainant had made repeated demands in the 1^st opposite party to recover the same and he also suggested to give free treatment but with an ulterior motive, the opposite parties have not complied the same. Hence the complainant was suggested to take a treatment through some specialist at Kancheepuram and the said specialist diagnosed that there is some problem in the thigh area. It is stated that before the operation he does not have any such injury in the thigh area. If it is so, the problem would have occurred only on account of the 1^st opposite party’s improper treatment, by committing negligence on their act and as well as they caused the mental agony to the complainant and also 2^nd opposite party commits tortious liability. In spite of the complainant’s request, the opposite parties did not take any effective steps and therefore he had sent a legal notice through his counsel on 13.06.2007 and the same was received by the opposite parties. Even then the opposite parties failed to come forward to comply the demands in the said legal notice, but per contra the opposite parties had given reply with false averments dated 07.07.2007. Hence the complaint.

The contention of the written version of the opposite parties has brief as follows:

                                5. The complaint is not at all maintainable in law and on facts.  All the allegations stated in the complaint are specifically denied except that those are admitted herein as true.  The 1^st opposite party is one of the leading hospitals in the city of Chennai, having the finest medical facilities and highly trained medical professionals and that the complaint has been issued with an entirely ulterior motive by the complainant in order to unjustly benefit by making wholly incorrect claims. It is true that the complainant was admitted on 23.02.2006 at 1.30A.M. in the accident and emergency ward in the SRMC hospital and upon examination, it  was diagnosed with fracture neck of right femur with undisplaced coronaid fracture of right ulna. The complainant was admitted in the trauma ward in ortho with alleged history of fall while walking on the road when a passenger travelling on the foot board of a moving bus him accidently on 22.02.2006 around 9.30.A.M. and that he sustained injury to the right hip and right elbow.

                        6. On examination he was found to be conscious, oriented and stable. It was also found  that his lower limp was externally rotated and that there was tenderness in the scarpas triangle and active straight leg raising was not possible. It was further found by on examination, that the greater trochanter was elevated and not tender and that all attempted movements made by him were painful. His right lower limp was shortened and there was right elbow swelling in addition to having generalized tenderness. His movements were restricted due to pain and that there was no distal neurovassscular deficit. On clinical examination, it was found that he had no other bone injury apart from what has been stated above. His X-ray showed a displaced fracture nect of right femur with undisplaced coronold process fracture of right. It was further revealed from the x-ray that his elbow was, immobilized with an above elbow slab.                7.  The complainant had approached the opposite parties only after 39 hours, since the accident took place and after taking into consideration the complainant’s age and after elaborately discussing the treatment options with him and his attenders, it was decided by the opposite party to perform cemented right total hip replacement. After explaining the pros and cons of cemented  total hip replacement including complications like infection, dislocation, DVT foot drop and indiopathic fracture etc., consent for surgery was taken from his and his relatives. The approval was also obtained from the concerned physician regarding diabetic condition of the complainant. That on 24.02.2006 under epidural anesthesia,  the complainant underwent right side cemented total hip, replacement using the Muller system. The said operation lasted one and half hours and was indeed successful. Immediately after the operation, there was no neurovascular deficit or limb length discrepancy.

                        8. It is submitted that when the x-rays was taken during the post-operative period it showed an un-displaced crack fracture of the upper shaft and the complainant was required to be in bed rest for the next six weeks. It was decided that no active intermention was required for the fracture as it would heal by this treatment. The same was explained to him and his relatives. It is submitted that a protective long knee brace was fixed on the right lower limb as an extra precaution.

                        9. On 07.03.2006, which was the 11^th post operative day the sutures were removed and he was discharged with advice to take bed rest for one month and was further advised to palce pillow between the legs and to wear the knee  brace. He was then asked to review with the opposite party one month later for re-admission for gait training. It is submitted that the complainant further stated that the complainant was admitted for the second time in the SRMC hospital on 31.03.2006 i.e. after five weeks, for gait training. On re-admission, he was found to have no pain in the right hip or thigh. The surgical wound had healed very well. The x-rays also revealed that his hip was in a good position and the crack fracture showed sins of good healing. He was mobilized with walker support.

                        10. That on 07.04.2006 around 6.P.M. the complainant developed right leg calf muscle pain. He was put on nasal oxygen immediately and a venous Doppler was doen to rule out deep vein thrombosis. Venous Doppler showed no evidence of deep vein thrombosis. Since he had no chest discomfort or dyspoena a diagnosis of superficial thrombophebitis was made and he was put on low molecular weight heparin 40 I.U. S.C. x 5 days. During this period, as an abundant precaution, he was asked not to mobilize. It was also observed by the 2^nd opposite party that his pain subsided and he was discharged on 12.04.2006 with advice to walk with full-weight bearing with walker support wearing the thigh brace and he was asked to review with opposite party after a month.

                        11. The complainant visited SRMC as an out-patient one month later. The x-ray showed the hip-joint to be in a good position and the fracture had healed well. He complained of pain in the hip joint. However, on examination, there was no localized tenderness and he had a fairly good range of movements. He was able to walk without discomfort. Appropriate medicine were prescribed and he was advised to come for review after 4 weeks. Thereafter he did not turn up for follow up. The allegation that the complainant approached opposite party immediately after the accident took place is whooly unture even as per his notice. He has approached opposite parties only after 39 hours after the accident took place. The accident  took place on 22.02.2006 at 9.30.A.M. and he has approached this opposite party only on 23.02.2006 at 1.30A.M.(i.e. midnight of 23.02.2006.

                        12. The complainant was discharged only after he was found to walk

comfortably with no pain. Following this, he has visited the SRMC only on three occasions and on all the three occasions, he did not have any localized tenderness and was found to have a fairly good range of movements and was able to walk comfortably without walker support. There was no request on his behalf for free hospitalization for further treatment as there was no need for the same. The fracture sustained in the thigh bone has been explained to him and adequate and best treatment for the same had been given by the opposite parties to the fullest satisfaction of complainant. While so it is preposterous on the part of complainant to hold the opposite parties liable for the alleged negligence. It is further stoutly denied by the opposite parties that they had not treated complainant in an efficient manner. So, also he travails in Kancheepuram hospital and the alleged specialists report are denied and the is put to strict proof of such claims.

                        13. His claim of persistence of crack in the thigh bone is not within the knowledge of opposite parties. In any event, the same cannot be a result of the earlier treatment given by the opposite parties even assuming there is such a crack. The complainant did not approach opposite parties for any free treatment or with the alleged report of a specialist. It is stoutly denied the allegation that the opposite parties had insisted him to pay some huge monies for further treatment. It is submitted that the opposite parties provided the best possible treatment to the complainant.

                        14. It is submitted that the far-fetched claim of a sum of Rs.12,000/- is vexatious and the same is made by the complainant only with a view to unjustly enrich himself, and that too much belated after almost a year and a half. In any event he does not have any ground to raise any claim against opposite parties much less the amount claimed in his notice. In the light of the above submissions that the claim of the complainant is untenable and unsustainable. There is no negligence, deficiency of service, mistake and improper treatment as alleged. There is no mental agony and hardship for the complainant. Hence it is liable to be dismissed.

15. On the side of the complainant proof affidavit has been filed for his

evidence and Exhibit A1 to A8 are marked. Similarly on the side of the opposite parties proof affidavit is filed along with the documents are marked as Exhibit B1 series. The Medical Board Report is marked as Exhibit C1.

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

1. Whether there is any medical negligence on the side of the opposite parties?
2. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

3. To what other reliefs, the complainant entitled to?

17. Point 1: According to the case of the complainant is that on 22.02.2006 at

above 9.30 A.M., while the complainant was walking on the road, he fell down due to the hitting of the foot Board passenger of a moving bus, he got grievous injury and on that score he was admitted on 23.02.2006 as an out-patient in the 2^nd opposite party’s hospital.  It is further stated that the 1^st opposite party had conducted the surgery of total hip replacement on 24.02.2006 and even after, the complainant has not fully recovered from the pain and sufferings and then he approached the opposite parties and on advice, a X-ray was taken and thereby he was informed that the thigh bone was affected due to the wrong diagnostics of the 1^st opposite party and thereby there is gross negligence on the side of the opposite parties.

18. On the other hand, it is vehemently contended by the opposite parties that there is no truth on the allegations of the complainant and in fact there is no medical negligence on the part of the opposite parties. It is further contended that the alleged fracture most probably would have occurred during the surgery since the fracture was a Vancouver classification Type A and the same was noticed on the post operative check x-ray only and it was decided to treat the fracture conservatively with knee brace and advice the complainant to follow up on 04.05.2006, but he did not turn up. Therefore the complainant is not entitled for any compensation since all the allegations made in the complaint are false and vague.

            19. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the prime and foremost duty of the complainant to prove his case beyond any reasonable doubt through the relevant and acceptable evidence. At the outset, the duty cast upon this Forum to decide, as to whether the complainant has proved his case as such by means of consistent and cogent evidence.

            20. First of all, on going through the proof affidavit of the complainant, it is learnt that on 22.02.2006 at around 9.30.A.M. while he was walking on the road after got down on the bus and sustained injury due to the hitting of the Foot Board passenger of the moving bus and then he was admitted on 23.02.2006 in the hospital of 2^nd opposite party for necessary treatment. It is further deposed by the complainant that the 1^st opposite party diagnosed that the complainant was sustained injury in the right elbow and right hip. Then the 1^st opposite party gave treatment to the complainant and the surgery was done on 24.02.2006 for the replacement of hip joint with consent of the complainant and after completion of operation, the 1^st opposite party gave gait training to the complainant and even thereafter the complainant was having pain and not recovered fully. On further perusal of the evidence of the complainant, on the approach by the complainant the 1^st opposite party has taken x-ray in the operative part, he found that the thigh bone was affected and in spite of, repeated demands to recover the same by means of free treatment by the complainant, but, the opposite party has not come forward to comply the same and therefore the complainant sent a legal notice to the opposite parties which is marked as Exhibit A1 and the same was acknowledged by the opposite parties which are marked as Exhibit A2. The reply sent by the opposite parties is marked as Exhibit A3. The discharge summary given by the opposite parties for the period of 23.02.2006 to 07.03.2006 and for the period of 31.03.2006 to 12.04.2006 are marked as Exhibit A4 and A5 respectively, X-ray is marked as Exhibit A6, which was transmitted to the medical board for expert opinion, Medical bills are marked as Exhibit A7 series and the proceedings of the Director General of Police, Chennai dated 09.02.2008 in C.No.233317/PHF-2/2006 for sanctioning of the medical incurred by the complainant is marked as Exhibit A8.

            21. In such circumstances, on perusal of the additional proof affidavit of the opposite parties it is learnt that it is completely denied the allegations made in the complaint by stating that it is not correct to say that the thigh bone fracture has not been entered in the discharge summery and in fact it was recorded in the case sheet which is marked as Exhibit B1 series.  It is further stated that the correct procedure adopted by the 1^st opposite party during surgery and do not found any fracture on the table and however the X-ray showed an un displaced crack periprosthetic fracture of the upper shaft and the complainant was required to be on bed rest for six weeks and it was an un displaced crack fracture, the opposite party decided to treat the fracture conservatively without any active intervention and hence it was decided to give a long knee brace    and it is mentioned that the said crack in the thigh bone is not within the knowledge of the 1^st opposite party.  It is further narrated that it is not correct to say that the complainant had approached the opposite parties for tree treatment and the opposite parties had not treated to him in a sufficient manner and therefore the complaint is unsustainable and hence the complainant is not entitled for any compensation.

                        22. At this juncture, on careful perusal of the rival submissions put forth on either side, it is an admitted facts that the complainant was admitted in the 2^nd opposite party’s hospital and the surgery as alleged in the complaint was done by the 1^st opposite party. Further, there is no dispute that the complainant was discharged on 12.04.2006 and the complainant advised for follow up on 04.05.2006. The only dispute raised by the 1^st opposite party that there is no negligent, improper treatment or deficiency of service as alleged in the complaint since he has properly done the surgery and given proper medication as per the procedure contemplated under Medical text and the fracture in the thigh bone is not due to the negligence of the 1^st opposite party at the time of the surgery. It would have probably occurred during the surgery since the fracture was Vancouver classification Type A.  It is further enlightened by the opposite parties that the said fact is clearly noted in Exhibit C1, the Expert report submitted by the Medical Board. In such circumstances, it is placed by the complainant that the fracture for the thigh bone was clearly admitted by the opposite parties at the time of surgery, which is nothing, but the medical violation and medical negligence and for which the opposite party has conveniently suppressed in the discharge summaries Viz. Exhibit A4 and A5 which was only furnished by the opposite party to the complainant.

                        23.Furthermore,  it is seen from the Exhibit A6, X-ray that the said fracture in thigh bone was found. At this point of time, on careful perusal of the additional proof affidavit of the 1^st opposite party, it is clearly mentioned and it reads as follow:  I submit that post-operatively, the un-displaced crack periprosthetic fracture of the upper shaft was noted on the X-ray and the fact was recorded in the case sheet. I submit that myself the medical team did not notice the fracture either before or during the surgery; but, noticed it on the post-operative check x-ray only this fact was duly recorded in the case sheet and the same was explained to the complainant and his relatives. I submit that even though it was recorded in the case sheet, due to oversight only, it was omitted to be mentioned in the discharge summary. From the above version it is clearly admitted by the 1^st opposite party in his proof affidavit that the above said fact was not recorded in the discharge summaries Exhibit A4 & A5.

                        24. At the outset, it is needless to say, that it is a duty of the Doctor to mention the above said fact in the discharge summary, the only record has been furnished to the complainant/Patient. Therefore, the explanation given by the 1^st opposite party in his proof affidavit is not fully satisfactory and there is every possibility to assume that the opposite parties has conveniently suppressed the above said fact in the discharge summary Exhibit A4 and A5 for the reason best known to them as alleged by the complainant and the same cannot be easily thrown out. At this instance, on seeing the Exhibit A4, through naked eye, it is clear that there is nothing mentioned about the right thigh fracture.  Similarly in Exhibit A5 also the said fact has not been found.  Such being the case, it is learnt from Exhibit A4, that the complainant was admitted on 23.02.2006 and discharged on 07.04.2006, subsequently as per the instruction of the opposite parties, the complainant was  admitted for Gait Training on 31.03.2006 and discharged on 12.04.2006. At that time of post-operative period only, the opposite party found the fracture in thigh bone is very clear.

                        25. At this juncture, ongoing through the Expert report given by the Regional Medial Board, General Hospital, Madras, which is marked as Exhibit C1 and it was found that on examination of the complainant and medical records it is stated as follows the patient had fracture in proximal shape of  Femur around the Prosthetic steam….This was not mentioned discharge summary and no treatment given further. Probably the fracture would have happened at the time of operation From the above conclusion of the medical board, it goes without saying that no further treatment given in the above said fracture by the opposite party in the thigh bone of the complainant.

26.At this instance,  this  Forum  wish  to  state   that  the  opposite  party

has conveniently made use of the particular portion of the Exhibit C1, as probably the fracture would have happened at the time of operation and stated that there is no negligence on the part of the opposite party. At this juncture, even for argument sake, it is taken as that the said fracture would have occurred during the surgery and the same has been enlightened in the symposium regarding periprothetic Fracture Evaluation and Treatment, the 1^st opposite party ought to have aware and verify if such fracture is found or not, immediately after of the said surgery and the patient was treated at the instance itself, but, the 1^st opposite party has not done so. In fact, the 1^st opposite party had found only after re admission on taking X-ray and not given any further treatment and hence the complainant was compelled to take necessary treatments at Kancheepuram.

                        27. In the light of the above facts and circumstances of this case and the expert opinion of the Medical Board, Exhibit C1 and the discharge Summary in Exhibit A4 and A5, it is crystal clear that the 1^st opposite party has not found the fracture thigh bone in a proper and relevant time and not given any treatment which clearly proved the negligence of the 1^st opposite party which amounts for medical negligence. Therefore, mere mentioning the convenient portion of the Exhibit C1 on the side of the opposite party and taken the plea that there is no negligence or deficiency of service or mistake or improper treatment as alleged in the complaint is not sufficient and such plea has been taken only to escape from the clutches or law.

                        28. At the outset, when the complainant has proved the medical negligence of the opposite parties by means of relevant and consistent evidence, the burden of proof has been shifted to the opposite parties to rebut the same. While so, there is no sufficient proof has not been produced on the side of the opposite parties, before this Forum, to rebut the same. From the foregoing observation, the medical negligence on the side of the opposite parties has been clearly proved beyond all reasonable doubt. Thus the point no.1 is answered accordingly.

                        30. Point 2 : In view of the conclusion arrived in the point no.1, it is very clear that the deficiency of service on the part of the opposite parties which leads to the complainant is entitled for compensation. Thus the point no.2 is answered accordingly.

                        31. Point 3: As per the findings arrived in point no.1 and 2, the complainant is entitled for reasonable compensation for causing of mental agony due to the deficiency of service on the part of the opposite parties and cost.

                        In the result, this complaint is allowed in part.  Accordingly, the opposite parties are jointly or severally directed to pay a compensation for a sum of Rs.1,00,000/- (Rupees one lakh only) towards deficiency in service on the part of the opposite parties and thereby caused mental agony to the complainant along with interest of 9% per annum from 11.03.2008 to the date of this order (26.11.2015) with cost of Rs.10,000/- (Rupees ten thousand only). Regarding the other reliefs prayed in the complaint is hereby dismissed.

The above amount shall be payable within one month from the date of

receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9% P.A. till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized

by her, correctly by the President and pronounced by us in the open Forum on this 26^th  November 2015.       

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MEMBER I                                                                                                    PRESIDENT

List of Documents filed by the complainant

Ex.A1/Dt.13.06.2007: The office  copy of the legal notice sent by the complainant’s

    counsel to the opposite parties.

Ex.A2/Dt.                   : The postal acknowledgement cards of the opposite parties.

Ex.A3/Dt.07.07.2007: Xerox copy of the reply sent by the opposite parties to the

   complainant’s counsel

Ex.A4/Dt.                   : The Discharge summary of the complainant given by the opposite

   parties.

Ex.A5/Dt.                   : The Discharge Summary of the complainant given by the

   Opposite parties.

Ex.A6/Dt.                   : The X-ray (Not returned from the Rajaji Govt. General Hospital,

  Chennai)

Ex.A7/Dt.                   : Medical Board payment bills.

Ex.A8/Dt.09.02.2008: The proceedings of the Director General of Police, Chennai.

List of documents of the opposite parties:

Ex.B1(S)Dt.07.03.2006 & 12.04.2006: The Case Sheet of the complainant given by the

                                                                    opposite parties.

Forum’s Document

Ex.C1/Dt.23.12.2011: The Expert opinion given by the Regional Medical Board, Govt.          

                                    General Hospital, Chennai.

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MEMBER I                                                                                                     PRESIDENT