DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 23^rd day of July 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                 Date of filing:  27/05/2015

              : Sri.V.P.Anantha Narayanan, Member

(CC/76/2015)

Nirmal ,                                                                            -        Complainant

S/o Devasagayam,

Vani Veedu,

Attapalam,

Pampampallam Post,

Palakkad Taluk, Palakkad District.

(By Adv.John John)

 V/s

1.  Dr.Prasanth.B.N, MS Ortho,

     Consultant Orthopaedic Surgeon,

     Thangam Hospital of PMRC,                                          -        Opposite parties

     West Yakkara, Palakkad,

     (By Adv.Rajivijayasankar)

2.  Thangam Hospitals of PMRC

     Rep.by its Managing Director,

     West Yakkara, Palakkad,

     Palakkad Taluk,

     Palakkad District.

     (By Adv.Preetha John K)

3.  The Managing Director,

     Thangam Hospitals of PMRC

     West Yakkara, Palakkad,

     Palakkad Taluk,

     Palakkad District.

     (By Adv.Preetha John K)

Suppl.4.  M/s United India Insurance Company Ltd,

     India Bhavan, Income Tax Circle,

     Ashiram Road, Ahammedabad,

     Gujarat State. 

    (ByAdv.T.Giri)

O R D E R

By Sri. V.P.Anantha Narayanan, Member

Brief facts of the case. 

          The 1^st opposite party is a doctor who is working as consultant Orthopaedic Surgeon in 2^nd opposite party hospital and the 3^rd opposite party is the Managing Director of the 2^nd opposite party hospital.  On 07.09.2014, when the complainant was practicing ‘Tug-of-war’ competition held as a part of Onam celebration of the year 2014, he slipped and his right leg got injured and he felt pain and uneasiness to move.  On 08.09.2014, the complainant approached the 2^nd opposite party for treatment and from the reception of 2^nd opposite party the complainant was directed to consult 1^st opposite party.  The 1^st opposite party instructed the complainant to undergo MRI Scan and prescribed some medicines also.  On the very same day, the complainant underwent MRI Scan from 2^nd opposite party.  As instructed by 1^st opposite party, the complainant again consulted him on 09.09.2014.  After perusing the MRI scan report, 1^st opposite party informed the complainant that the ligament of his right knee has got dislocated and he has to undergo an emergent surgery.  As per the instructions of the 1^st opposite party, the operation was scheduled to 3 p.m on 16.09.2014.  Even though the complainant was taken to the operation theatre at 3 pm on 16.09.2014, the opposite parties kept the complainant waiting till 8.30 pm for giving anesthesia and the operation was completed only at 11.30 pm.  On 16.09.2014 the opposite parties kept the complainant waiting there in the operation theatre of the 2^nd opposite party from 3 pm to 8.30 pm without food or water.  Even though the complainant enquired about the delay, the 1^st opposite party failed to explain the delay.  Therefore he was put to mental agony and hardship due to the 1^st opposite party’s irresponsibility and negligence.  After the operation, the complainant was taken to the ward at about 3 am on 17.09.2014.  On 17.09.2014 at about 10.30 am, the 1^st opposite party examined the complainant and it was informed that the complainant was perfectly alright and the operation was successful.  On the very same day itself the waste blood outlet fixed in operated portion of right knee was removed and subsequently 1^st opposite party discharged the complainant on 20.09.2014.  When the complainant informed the 1^st opposite party about his pain and uneasiness while walking and swelling on his right leg, 1^st opposite party informed the complainant that it is quite usual and instructed the complainant to take the prescribed medicines regularly.  While discharging from 2^nd opposite party hospital, the complainant was informed that he has to came to the 2^nd opposite party on 30.09.2014 for check up and to remove the stitches.  The complainant continuously used to take all the medicines prescribed by the 1^st opposite party, but his swelling and pain on his right leg had not cured.  On 30.09.2014, when the complainant approached the 1^st opposite party for chekup and the complainant informed the 1^st opposite party that still he was having pain and swelling on his right leg and he has difficulty in walking.  At that time, the 1^st opposite party instructed him to continue the medicines and impressed the complainant that it will be alright soon.  On 30.09.2014 itself, the 1^st opposite party removed the stitch in the operated portion of the complainant’s leg.  As and when the stitch was removed, the pus started coming out from the portion from where stitches were removed.  Eventhough pus was coming out and the complainant was having pain and was not in position to walk, the 1^st opposite party had not taken care of that and impressed the complainant that it is quite usual.  On 30.09.2014, the 1^st opposite party asked the complainant to come for a check up again on 06.10.2014.  As instructed by the 1^st opposite party, the complainant consulted him on 06.10.2014 and informed his uneasiness, swelling and pain on his right leg, but the opposite parties had not taken care of that and had not taken any measures to find out the actual reason and to cure the pain of the complainant.  Again the complainant consulted the 1^st opposite party on 13.10.2014, since he felt increased pain and swelling on his right leg.  But the 1^st opposite party without diagnosing the actual grievance of the complainant, simply sent him back asking him to come again after one month.  In the said circumstances the complainant was convinced that the opposite parties were not ready and willing to take care of the ailment of the complainant and if he continued consulting the opposite parties, his ailment would be aggravated day by day.  Hence the complainant on 15.10.2014 went to Ganga Medical Centre and hospital at Coimbatore and consulted Dr.(Prof.) S.Rajasekharan, who was serving as Orthopaedic Surgeon there.   The complainant was informed by the Ganga Hospital that the waste blood was not fully sucked out during the operation done by opposite parties and due to accumulation of waste blood, pus was formed in the operated portion and as a result of that the complainant got infection on his right leg.  The complainant was also informed that the operation done by the 1^st opposite party was not successful and the complainant has to undergo the operation again after curing his infection on his right leg, which was an after effect of unsuccessful surgery done by the opposite parties.  The complainant underwent a surgery from Ganga Hospital, Coimbatore, which happened only due to 1^st opposite party’s negligence and carelessness.  After the surgery done at Ganga Hospital, now the pain and swelling of the complainant has decreased and now he is in a position to walk.  The complainant spent an amount of Rs.85,000/- at 2^nd opposite party hospital for  the medical treatment inclusive of fees of the 1^st opposite party.  An amount of Rs.10,000/- per day was spent for personal attendant of 2^nd opposite party.  The complainant lost his salary for about five months which comes to an amount of Rs.50,000/-.  He already spent an amount of Rs.90,000/- at Ganga Medical Centre and Hospital, Coimbatore and the complainant was advised that he has to undergo another surgery and he has to spend an amount of Rs.1,80,000/- for the same.  The complainant is exposed to huge financial loss, mental agony, hardship and pain only due to the negligence, carelessness, deficiency in service and unfair trade practice on part of the opposite parties in the medical treatment given to the complainant.  Eventhough the mental agony, hardship and pain cannot be compensated on monetary basis, the complainant restricts his claim to an amount of Rs.2 lakhs on that head.   The opposite parties received the said lawyer notice and the 2^nd and 3^rd opposite parties caused to send a reply notice dated 20.12.2015 to the counsel of the complainant stating false and untenable contentions.

          The complaint was admitted and notices was sent to opposite parties who filed their versions.  In the version filed by 1^st opposite party, he denies the entire averments and contentions made in the complaint specifically.  There is gross negligence on the part of the complainant in putting his effort in a competition like tug-of-war where in physical bargaining is involved which has led to his knee injury which requires keyhole surgery and 4-6 months rest.  His negligence is in not properly protecting his operated leg which has led to complications which can happen to any surgery and further treatment was necessary.  1^st opposite party has tried all possible means to correct his injury.  1^st opposite party is an expert having specialization in Arthroscopy and an expert in Palakkad doing Arthroscopy.  He is practicing arthroscopy surgery for last 9 years.  The complainant came to the hospital with severe pain, swelling on right knee and inability to walk and hence he was taken immediately to causality, medical attention was given and pain was managed by giving emergent treatment after clinical evaluation like pain killers and long knee brace to prevent further injury.  The clinical diagnosis of ACL injury was further confirmed with MRI (Magnetic Resonance Imaging).  The complainant needed elective surgery which was planned on 16.09.2014. On 15.09.2014, when complainant came to hospital, he was more comfortable, he was able to walk with brace on, and swelling had decreased.  Since the surgery advised for him was an elective surgery, there was no necessity to take him immediately to the operation theatre.  Even then, to give more comfortable medical care, he was kept in the OT observation room under the care of nursing staff and IV fluid, so the allegation that the complainant was taken to operation theatre at 3 p.m and was kept till 8.30 p.m is denied specifically.  There is no intentional delay or latches on the side of the opposite party because the department of Anesthesia is working separately and the opposite party is completely depending upon the anesthetist.  So the proper person to say the reason for the delay is the Anesthetist.  Hence he should be impleaded as a necessary party.  The reason for the alleged delay was explained and all his queries are attended.  The complainant’s case was an elective surgery to be done with patience and care.  The opposite party had not compelled for any surgery.  The patient had voluntarily come to opposite parties for treatment and surgery.  He voluntarily signed the consent form after discussing the procedure aspect thoroughly and properly and its complications in his own language.  It is true that the surgeon, the 1^st opposite party took 3 hours for correcting the ligaments including anesthesia time and preparation time.  After that, he was again taken to observation room and subsequently shifted to his room.  Antibiotic injection (inj Tazomac 4.5 g and inj Amikacin 500 mg) were given pre-operatively and continued post operatively for 72 hours and further oral antibiotics (C.Moxikind CV625mg) continued for 12 days which is the main step to prevent infection occurring after surgery.  The operation was successful and it was done with utmost care and caution which was confirmed with x-ray on 18.09.2014.  The implants used were titanium implants from standard company (BIOTEC).  It is true that normally at the time of operation of joints, drain tube will be kept inside the operative sight to take out waste blood it was kept for  two days to absorb all waste blood and was removed when blood coming was minimal.  At the time of discharge the condition of the patient was normal and he was fit for discharge.  The discharge made by the hospital was with an advice to take rest and to use brace and take prescribed medicines.  When he came to the hospital for check up on 30.09.2014, he was feeling better and wounds were heated, then sutures were removed.   The further allegation that pus came out after removal of sutures is not correct. Since there were no symptoms and signs of infection, antibiotics stopped and pain killers were given to relieve his pain (born out by pharmacy bill) and physiotherapy was advised, explained to him to use braze properly, then medicines prescribed for one week and advised to review after one week to check whether he is following instructions or not.  Again on 06.10.2014 he came to the hospital for check up.  The wound was well heated.  So exercises and brace were advised and to take regular medicines with antibiotic (T.Celtam CL200mg) given to prevent infection, he was asked to come to the hospital after finishing medicines or early if some problem occurs, and to use belt properly.  He came for follow up on 13.10.15, on that date he was complaining of pain, to further confirm things knee aspiration was done, serus fluid aspirated suggestive more of reactive arthritis, further intra articular injection (inj amikacin 500 mg) was given to prevent infection.  He was advised to give the fluid for total count, differential count, culture and sensitivity.  He was told that if culture is positive or his pain persists he might need admission for further evaluation and management which includes giving appropriate intravenous antibiotics based on culture report and joint lavage surgery if required.  Till that time patient’s condition was improving and he was coming for follow up.  After which, patient lost follow up.  However patient has developed fever and discharging sinus (as per Ganga hospital discharge card) which could have been managed without any problem at 2^nd opposite party hospital which has all the facilities to do so.  Inspite of that, he went to Ganga Hospital without informing the 1^st opposite party.  The infection if any was due to implantation of titanium implant and non co-operation of the complainant.  When foreign body is inserted chances are more for infection unless care is taken properly by the victim.  The implantation is a foreign supplement to strengthen the damaged ligaments.  Certain bodies will not accept the implants, hence chances are more for infection and bacterial formation.  The complainant should implead the manufacturer of his medicines as a necessary party to the proceedings, if not, again the complaint is having the material defect of non-jointer of necessary parties.   The existing illness caused to him was due to his negligence in participating in Tug-of-war competition because complainant is not an expert, the injury caused to him was due to his own negligence and except treatment, the 1^st opposite party has not done anything to aggravate the calamity.  So the 1^st opposite party is not answerable to the medical expenses of the complainant.  The total amount drawn by the hospital is Rs.49,820/-.  The bifurcated amount is Rs.3,750/-, from rent Rs.750/- nursing charges Rs.3,000/- ,for anesthesia Rs.5,000/-, for consumables Rs.200/-, for dressing Rs.9,890/- for implant.  Operation theatre charges Rs.13,000/-, surgeon’s fee Rs.13,000/- and Rs.1,000/- is collected as Dr’s fee by the hospital.  No amount is collected by the 1^st opposite party directly from the complainant.  The injury caused to the complainant is not due to the fault of the 1^st opposite party, there is no cause of action for him on 07.09.2014 against the opposite parties.  The complainant should implead the Ganga Hospital authorities and Dr.Rajasekharan as necessary parties to the complainant, if not it is defective on account of non joinder of necessary parties.  The tube for draining the fluids on the operated site is surgical procedure.  It is likely to increase the risk of infection.  Generally, drains should be removed once the drainage has stopped or becomes less than about 25 ml/day.  A surgical site infection is an infection that occurs after surgery in the part of the body where the surgery took place.  Most patients who have surgery do not develop an infection.  However, infection is possible in about 1 to 3 cases in every 100 patients who have surgery.  Some of the common symptoms of a surgical site infection, fever, fluid from surgical wound, pain.  The common surgery complication is pain.  It was informed to the complainant the chances for complications related to surgery like infection, persistence, septic arthritis, septicemia, need for multiple surgeries etc.  After agreeing with the consent letter agreeing the terms of operation and its risks involved therein, all the procedures were taken after due care and caution.  The 1^st opposite party is a competent doctor to treat arthroscopic cases.  The operation done by him in the case is after looking the safety and security of the injured.  The treatment given to the injured was proper and no medical evidence produced before the court by the complainant to challenge the service given by the 1^st opposite party.  The patient was discharged in a stable good condition from Thangam Hospital and advised him to follow up the instructions as shown in the discharge card.  As per the discharge card of Ganga Hospital dated.27.10.14 the injured was admitted on 17.10.2014 in Ganga Hospital and in the “History and presenting complainants” time lag is mentioned that is surgery before 1 months and one week back noticed pain, fever, discharging sinus from Right knee.  Actually he came to the 1^st opposite party  on 13^th October, at that time there was no fever or discharging sinus.  It is noted in the discharge card of the said hospital that while admission his general condition was good and no abnormality deducted (NAD).  On 18.10.15 cultural test was done.  In that test also no bacterial growth was done.  The treatment from Ganga Hospital was on suspicion of infection; in the review portion of the Ganga Hospital it is mentioned that “report immediately if fever, severe pain, redness, swelling or discharge from the operative area is found”.  But the injured has not followed this formality to the Thangam Hospital and to 1^st opposite party.  When fever developed he went to Ganga Hospital for new treatment, before approaching this 1^st opposite party  for further treatment.   In the version filed by 2^nd & 3^rd opposite parties except those that are expressly admitted hereunder, all allegations and claims contained in the complaint are denied by these opposite parties. The above complaint is not maintainable either in law or on facts and circumstances of the case.  The complainant is not entitled to get any relief as prayed for in the complaint and the same is liable to be dismissed.  There is no negligence, carelessness or deficiency in service on the part of these opposite parties or any doctors or staff attached to the 2^nd opposite party hospital as alleged.  The patient was examined and treated by 1^st opposite party as per the universally accepted standard medical protocol, bestowing all care, caution and attention.  The 2^nd opposite party is a well equipped hospital in Palakkad District with experienced doctors and other paramedical staff and the 1^st opposite party is the orthopedic surgeon having specialization in arthroscopy attached to 2^nd opposite party.  The complainant approached 2^nd opposite party hospital on 08.09.2014 with injury to his right knee with severe pain, swelling on knees and inability to walk.  He was attended by 1^st opposite party, the orthopedic surgeon.  The history given by the complainant is that on 07.09.2014 while practicing for TUG-OF-WAR to be conducted for Onam celebration, he slipped and sustained injuries to his right knee.  The complainant had knee injuries and swelling on examination.  So MRI scan was advised and a clinical diagnosis of ACL injury (Anterior Cruciate Ligament) was made after MRI scan.  He was given “long knee brace” to prevent further injury and pain killers to subside pain.  As other investigations were within the normal limits, a supportive treatment including rest, limb elevation were advised to him and also prescribed analgesics.  He was also advised to use the brace without which this injury may progress.  As the standard treatment for ACL injury is its reconstruction 1^st opposite party advised him ACL reconstruction once the swelling and pain subside.  As advised, the complainant approached hospital on 15.09.2014 for a review.  His pain and swelling were subsided by that time.  His knee range of movement was also good.  On that day the complainant was admitted in the hospital and scheduled ACL reconstruction to 16.09.2014.  The routine advice was given to complainant also.  On 16.09.2014 at about 3 pm he was shifted to pre operative waiting room for preparation for surgery and he was under the care of nursing staff, who were monitoring vitals of the complainant with IV fluids.  As the earlier surgery which was supposed to get over by 3.00 pm couldn’t be completed in the orthopedic theatre because of morbid condition of that patient and as there were some emergency surgeries going on in the other operation theatres, the surgery of the complainant was delayed which was not willful or deliberate and as such there is no negligence or other deficiency on the part of any of the opposite parties.  The reason for delay was explained to the complainant then and there and his request to have water was also permitted.  All queries of the complainant were attended without any hesitation by 1^st opposite party and other nursing staff present in the pre-operation waiting room.  As and when the operation theatre became free, the complainant was taken up for surgery.  After anesthesia, the ACL representation with implant fixation was done with utmost care and caution by 1^st opposite party doctor.  A drain tube was also fixed to drain the waste blood.  The surgery was completed by 10.30 pm and he was shifted to post operative room for observation and thereafter to his room at late night.  The patient was comfortable after these procedures.  On 17.09.2014 at about 10.30 am when 1^st opposite party examined the complainant, he complained of pain.  So doctor prescribed injection phenergan to relieve pain and antibiotics tazomac 4.5 gm IV, amikacin 500 mg to prevent causing of any infection.  On 18.09.2014 the complainant seems comfortable on examination and as the drain fluid level became 25 cc/24 hours, the same was removed.  The active assisted knee range of movements (AA ROM) was tried after removing brace which patient was tolerating with minimal discomfort.  Brace was re-applied and advised him to continue the same medicines.  The check X-Ray taken on that day was also normal.  The wound was also healing well by that time.  The active assisted knee range of movements exercise was repeated on next 2 days and as the patient was comfortable he was discharged on 20.09.2014 with an advice to walk with brace or with the help of a walker and to take oral antibiotics and for a review on 30.09.2014.  The allegation of pus formation is denied by these opposite parties.  The allegation that the pus started coming out from the operated area when stitches removed is also not correct.  There was no such pus formation.  The complainant came up for a review on 30.09.2014.  As the wound was heated well the suture was removed on that day and he was advised physiotherapy.  On 06.10.2014 when he approached the hospital for a checkup he reported that he was using ayurvedic oil to his knee for pain.  The 1^st opposite party asked him to stop using oils and advised him to use brace properly and to continue physiotherapy.  The allegation that the reason for pain and swelling was not properly diagnosed by the 1^st opposite party is not correct and hence denied.  When he complained of pain on 13.10.2014, his knee aspiration was done by 1^st opposite party which was found to be normal.  As a precaution inj. Amikacin was given and also prescribed antibiotics for some more days and asked him to report if pain persists with fluid culture report and routine blood test results.  The complainant has not come to these opposite parties thereafter.  The complainant had no infection as alleged in the complaint at any point of time when he had follow up with the opposite parties.  The complainant was attended with standard protocol when he approached the hospital with knee injuries and as and when he complained of pain and swelling during follow ups.  Though he was advised fluid culture and routine blood tests to find out the cause for pain, he has not turned up with the results as advised.  The post operative infection alleged to have occurred on the complainant was not due to the negligence in surgery or deficiency in service as alleged in the complaint.  The complainant received proper treatment from 2^nd opposite party hospital.  These opposite parties affirm that the surgery was done by 1^st opposite party with required medical standard and was given proper treatment when he complained of pain and swelling, there is no negligence or deficiency in service of any kind on the part of the opposite parties.  The delay in surgery was occasioned due to the unexpected complications of earlier surgery which was explained to the complainant then and there and that cannot be termed as a deficiency or negligence.  The occurrence of surgical site infection is a known complication.  It is also accepted in medical theatre that as the implementation is a foreign supplement there are chances of infection for which opposite parties are not at all responsible.  There was no infection on the operated site at the time of discharge from 2^nd opposite party hospital or when there was follow ups with the opposite parties at any point of time and hence opposite parties are not liable to compensate the complainant.  Hence complaint is to be dismissed with cost.

In the version filed by 4^th opposite party he contends that this opposite party admits that 1^st opposite party Dr.Prasanth.B.N has taken a policy No.500800/46/14/35/00000384 for the period from 01.07.2014 to 30.06.2015.  As per the policy limit for year is Rs.5,00,000/-.  The liability of this opposite party is subject to the terms and conditions of policy.  As per clause 7 of the policy conditions, the insured shall bear for each and every claim a compulsory excess of half percent of the limit of indemnity per any one year as shown in the schedule subject to the minimum of Rs.25,000/- and maximum of Rs.1,00,000/-.  In this case as per the above said condition the insured has to bear Rs.25,000/- being the compulsory excess.  The indemnity of this opposite party applies only to claim arising out of negligence in professional service rendered by the insured with the qualified assistance.  This opposite party is liable to pay compensation only for the professional negligence of the 1^st opposite party during the course of treatment.  The complainant is put to strict proof with legally acceptable evidence with regard to negligence on the part of the 1^st opposite party for the alleged operation.  As per the allegation in the complaint that the complainant has satisfied with the treatment of the 1^st opposite party and hospital facilities and he continued reviews in the said hospital for 2 months also.  The alleged complication as per the allegation in the complaint is only due to infection.  Causing infection on a wound may also be due to the negligence and carelessness of the complainant.  So the complainant is not entitled to get any relief against this opposite party as per the terms of the policy.  All the allegations in the complaint with regard to the negligence of the 1^st opposite party and other opposite parties are incorrect and they are hereby denied by this opposite party.  The Complainant is put to strict proof of the same with production of evidence and examination of the alleged further treatment conducted by the doctors at Ganga Hospital, Coimbatore.  This opposite party came to understand that the complainant has approached Ganga Hospital only for the removal of implants.  Hence the present complaint is not maintainable either in law or on facts and liable to be dismissed.  The Complainant has not issued any notice or intimation to this opposite party for claiming compensation.  Even if any amount is directed to be paid by this opposite party the interest should be only from date of receipt of notice from this Hon’ble Forum.  Hence it is humbly prayed to this Hon’ble Forum to uphold the above contentions of this opposite party and dismiss the complaint with cost.

Complainant and opposite parties filed their chief affidavit.  Exts.A1 to A8 were marked from the side of the complainant.  Ext.X1 is also marked.  Exts.B1 to B3 were marked from the side of opposite parties.  Both parties were heard.

           The following issues arise in this case.

1. Whether there is any deficiency in service and/or negligence committed from the part of the opposite parties?
2. If so, the remedy and relief available to the complainant ?

Issues 1 & 2

On 07.09.2014, when complainant was practicing for tug-of-war competition, he slipped and got his right leg injured and on 08.09.2014 complainant approached the 2^nd opposite party who directed him to consult 1^st opposite party who instructed the complainant to undergo MRI scan.  On 08.09.2014 complainant underwent MRI scan in 2^nd opposite party hospital and the MRI scan report’s photocopy was marked as Ext.A5 which shows the anterior cruciate ligament.  Complainant purchased medicines prescribed by the 1^st opposite party which is proved by 24 numbers medical bills marked as Ext.A4 series.  On 09.09.2014 after perusing the MRI scan report, the 1^st opposite party informed the complainant that the ligament of his right knee got dislocated and he had to undergo an emergent surgery and the same was scheduled on 16.09.2014 at 3.00 pm and the opposite parties made the complainant wait upto 8.30 pm for giving anesthesia and the operation was completed only at 11.30 pm, as pleaded by the complainant.  After the operation, complainant was taken to the ward at about 3.00 am on 17.09.2014 on which at about 10.30 am the 1^st opposite party examined the complainant and told him that the operation was successful and he was perfectly alright; on this date the waste blood outlet fixed on operated portion of complainant’s right knee was also removed and on 20.09.2014 complainant was discharged by the 1^st opposite party, informing him to come to the 2^nd opposite party on 30.09.2014 for checkup and to remove the stiches.  Photocopy of the discharge summary issued by the 1^st opposite party was marked as Ext.A6 which did not show the condition of the patient complainant at the time of discharge.  According to the complainant, when he informed the 1^st opposite party about his pain and uneasiness in walking and swelling on his right leg on 30.09.2014, 1^st opposite party told the complainant to take the prescribed medicines regularly which complainant did without fail, but swelling and pain on his right leg did not subside.  On 30.09.2014 this matter was informed to the 1^st opposite party but the 1^st opposite party asked the complainant to continue the medicines.  On 30.09.2014 the 1^st opposite party removed the stitch in the operated portion of his right leg from which the pus started coming out from the portion from which stitches were removed but 1^st opposite party did not take any care of that and asked the complainant to come for a checkup again on 06.10.2014, on which complainant again consulted the 1^st opposite party and informed him of his uneasiness in walking, swelling and pain on his right leg but 1^st  opposite party did not take any measures to find out the actual reason for pain and to cure his pain.  Complainant was asked to come on 13.10.2014 for a checkup on which 1^st opposite party was again consulted because of increased pain and swelling on his right leg but the 1^st opposite party without diagnosing his actual grievance sent complainant back asking him to come again after one month.  Under the above circumstances, on 15.10.2014 complainant went to Ganga Medical Centre and Hospital at Coimbatore and consulted Dr.Rajasekharan, Orthopedic Surgeon of that hospital, who informed the complainant that the waste blood was not fully sucked out during the operation done by the 1^st opposite party; due to accumulation of waste blood, pus was formed in the operated portion and as a result infection was caused on complainant’s right leg.  After curing infection on the right leg, complainant underwent a surgery at Ganga Hospital, Coimbatore.  Between 17.10.2014 and 27.10.2014 complainant purchased medicines from Ganga Hospital which is proved by 45 numbers of medical bills marked as Ext.A7 series.  After the surgery done at Ganga Hospital, complainant’s pain and swelling decreased and he was in a position to walk.  Complainant was admitted on 17.10.2014 and discharged on 27.10.2014 from Ganga Medical Centre and Hospital Pvt, Ltd, Coimbatore which is clear from Ext.A8, which is a photocopy of discharge summary issued by this hospital which shows condition of the patient complainant at the time of discharge as patient “afebrile”, “wound healing well”. 

1^st opposite party contends that there is negligence on the part of the complainant in putting effort in tug-of-war competition in which physical bargaining is also involved and hence knee injury also happened and required keyhole surgery with 4 to 6 months rest.  According to the 1^st opposite party complainant was negligent in not properly protecting his operated leg which led to complications and made it necessary further treatment.  The 1^st opposite party also contends that he tried all possible measures and means to correct complainant’s injury.  This opposite party contends that all risks are insured with United India Insurance Company Ltd, for the period from 01.07.2014 to 30.06.2015.  The insurance copy is marked as Ext.B1.  2^nd and 3^rd opposite parties contend that the complainant was undergoing treatment with 1^st opposite party who has specialization in Arthroscopy for treatment of his knee injury.  They also contend that they only maintain the inpatient records of the patient complainant which was produced before this Forum and which is marked as Ext.B2; all treatment procedures carried out in the 2^nd opposite party hospital were as per standard medical protocol in good faith and in the best interest of the complainant and the surgery was done by a qualified doctor with required medical standard and proper treatment was given when the patient reported with pain on 13.10.2014 and therefore there is no negligence or deficiency in service on the part of 1^st, 2^nd & 3^rd opposite parties.  As per the contentions raised by the 4^th opposite party, this opposite party admits that 1^st opposite party has taken a policy number – 500800/46/14/35/00000384 for the period from 01.07.2014 to 30.06.2015 and as per the policy limit for year was Rs.5,00,000/-.  According to the policy conditions the insured (1^st opposite party) has to bear the compulsory excess of Rs.25,000/- and the indemnity of these opposite parties applies only to claims arising out of negligence in professional service rendered by the insured with the qualified assistants which in this case is the 1^st opposite party.  Therefore this opposite party is liable to pay compensation only for the professional negligence of the 1^st opposite party during the course of his treatment.  As per the allegation in the complaint, the complication is only due to infection which may be due to negligence on the part of the complainant and hence complainant is not entitled to get any relief against the 1^st opposite party as per the terms of the policy; a copy of the insurance policy dated.11.07.2014 with conditions is marked as Ext.B3 on the side of 4^th opposite party. 

We have perused the affidavits and documentary evidences produced by both the complainant and the opposite parties and understood that on 08.09.2014 the complainant approached the 2^nd opposite party for treatment of his right knee which got injured while complainant was practicing tug-of-war competition as a result of slipping; the 2^nd opposite party directed the complainant to consult the 1^st opposite party.  We understand that this complaint is filed by the complainant to realise Rs. 6,15,000/- with 12% interest from the opposite parties towards huge financial loss, mental agony, hardship and pain suffered by the complainant only due to the negligence, carelessness and deficiency in service  and unfair trade practice occurred on the part of the opposite parties in the medical treatment given to the complainant.  We also understand that the complainant was informed that the ligament of his right knee got dislocated as a result of his slipping which is confirmed by MRI scan report of the complainant and an emergent surgery was to be performed on his right knee.  On 16/09/2014 in connection with his operation, even- though complainant was taken to the operation theatre at 3 p.m, the opposite parties kept him waiting till 8.30 p.m in the  operation theatre of the 2^nd opposite party hospital without food or water from 3.pm to 8.30 p.m which shows utter negligence and deficiency in service on the part of the opposite parties and on 17/09/2014 waste blood outlet fixed in operated portion of right knee was removed and complainant was discharged from the 2^nd opposite party hospital  on 20/09/2014.  Eventhough the complainant informed the 1^st opposite party about his having pain and uneasiness in walking and swelling on his right leg. When complainant contacted 1^st opposite party on 30/09/2014, 6/10/2014 and 13/10/2014 and informed 1^st opposite party about presence of pain and swelling on his right leg and difficulty in walking, the 1^st opposite party is found not to have taken adequate care of his complaint and seen not to have diagnosed complainant’s actual grievance with the result that in order to cure his pain and swelling on his right knee, the complainant went to Ganga Hospital, Coimbatore and consulted Dr.Rajasekharan, Orthopedic Surgeon of the said hospital.  On 30/09/2014 the 1^st opposite party is found have removed the stitch in the operated portion of complainant’s leg which caused the pus to start coming out from the portion from which stitches were removed, to prevent and control which 1^st opposite party is seen not to have taken proper measures which also shows grave deficiency in service on the part of 1^st opposite party. Further we  also  observe that at the time of discharge of the complainant from the 2^nd opposite party’s hospital the condition  of the complainant patient  is not  seen mentioned in the discharge summary issued by the 1^st opposite party which also shows serious deficiency in service and unfair trade practice committed by the  1^st opposite party.  We view that from their discharge summary issued by Ganga Hospital, Coimbatore complainant was admitted in this hospital on 17/10/2014 and discharged from there on 27/10/2014.  The diagnosis mentioned in the discharge summary issued by Ganga Hospital, Coimbatore at the time of complainant’s admission was “INFECTED ACL RECONSTRUCTION WITH HARMSTRING  GRAFT RIGHT KNEE OUTSIDE DONE “ which shows that there was infection on the right knee of the complainant.  At the time of his admission in Ganga Hospital, Coimbatore it is also clear to this Forum from “examination findings” in the discharge summary of the aforesaid hospital “Patient conscious,  co-operative well oriented GC fair”.

Right knee

Discharging sinus present over the medical aspect of proximal fivia 0.5 x 0.5 cente meter.

Discharging present seropurulent

Parapatellar, fullness present. “

In the discharge summary issued by Ganga hospital Coimbatore condition of the complainant patient at discharge was mentioned as “patient afebrile, wound healing well.”   We also observe that the waste blood was not fully sucked out during the operation done by the 1^st opposite party and due to the accumulation of waste blood pus was formed in the operated portion and as a result complainant got infection on his right leg and only after curing his infection on his right knee complainant has undergone surgery at Ganga hospital Coimbatore which was necessitated only due to negligence and carelessness on the part of the 1^st opposite party which caused to the complainant a lot of mental agony and huge expenses having to be incurred at Ganga hospital Coimbatore for surgery and  treatment.   Further as per the medical certificate issued on 25/03/2017 by special medical board of District Hospital Palakkad, it is stated that now on examination right knee find no swelling/deformities.  No case of instability, range of motion full. Disability is nil“.  Which proves that complainant treatment at Ganga hospital, Coimbatore was effective for the complainant and operation performed to the complainant in the said hospital was successful.

We also view that although further checkups were seen to have been performed by the 1^st opposite party on 30.09.2014, 06.10.2014 and 13.10.2014, 1^st opposite party is not seen to have diagnosed the complainant’s actual grievance, reason for continuing pain while walking swelling on his right knee.   At the same time for the complainant’s negligence alleged by the 1^st opposite party that he was not using brace as adviced by the 1^st opposite party, being careless about his operated leg applying ayurvedic oil on the infected portion of his right knee was not able to be proved by the 1^st opposite party.  Under the above circumstances we opine that if the 1^st opposite party had taken enough care in his treatment of complainant’s knee, pain swelling and infection occurred on his right leg could have been avoided and surgery and consequent expenses incurred in Ganga Hospital, Coimbatore and the resultant much mental agony suffered by the complainant could have been avoided and therefore professional negligence and carelessness on the part of 1^st opposite party is proved and since the 1^st opposite party’s professional negligence is insured with the 4^th opposite party, we decide to allow the complaint in part. 

We order that since due to medical negligence of the 1^st opposite party 2^nd & 3^rd opposite parties are liable for the financial loss, physical and mental pain suffered by the complainant.  Since due to medical negligent of the 1^st opposite party 2^nd & 3^rd opposite parties are also liable for the financial loss physical and mental pain suffered by the complainant.  Since 1^st opposite party’s medical negligence is insured with 4^th opposite party, the entire amount due to be paid by the 1^st, 2^nd & 3^rd opposite party are ordered to be paid entirely by the 4^th opposite party.  The 1^st opposite party for medical negligence is liable to the extent of amount of medical expenses incurred at Ganga Hospital Coimbatore of Rs.83,000/- (Rupees Eighty three thousand only); further the 1^st opposite party is also liable for a lot of physical pain and miseries undergone by the complainant for which 1^st opposite party is liable to pay Rs.50,000/- (Rupees fifty thousand only) to the complainant, further for a lot of mental agony suffered by the complainant Rs.50,000/- (Rupees fifty thousand only) should be paid as compensation to the complainant by the 1^st opposite party and towards cost of proceedings Rs.10,000/- (Rupees ten thousand only) should also  be paid to the complainant by the 1^st opposite party.  Since the 4^th opposite party is the insurer who has insured the medical negligence of the 1^st opposite party the entire amount of Rs.1,93,000/- (Rupees one lakh ninety three thousand only) (83,000 + 50,000 + 50,000 + 10,000 = 1,93,000/-) should be paid by the insurance company (4^th opposite party) to the complainant. 

This order shall be complied within one month from the date of receipt of this order; or else interest at 9% p.a on the total amount due to the complainant should also be paid to him from the date of this order till realization.

 Pronounced in the open court on this the 23^rd day of July 2018.

                        Sd/-

         Shiny.P.R

                   President 

                        Sd/-        

                   Suma.K.P

                    Member

      Sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 -  Copy of the lawyer notice sent by the complainant to the opposite party

             dated.05.02.2015

Ext.A2 series  - Postal Receipts (3 No’s)

Ext.A3 -Reply notice sent by the 2^nd & 3^rd opposite parties through their counsel to

            the  complainant

Ext.A4 series -  Medical Bills (24 No’s) issued by Thangam Hospital of PMRC,

                       Palakkad to the complainant

Ext.A5 -  MRI scan (original) report issued by Thangam Hospital of PMRC,

             Palakkad to the complainant

Ext.A6 -  Discharge summary (original) issued by Thangam Hospital of PMRC,

             Palakkad to the complainant

Ext.A7 series – Medical Bills (45 No’s) issued by Ganga Medical Centre & Hospital, 

            Pvt, Ltd,  Coimbatore to the complainant

Ext.A8 -  Discharge summary issued by Ganga Medical Centre & Hospital Pvt, Ltd,

             Coimbatore to the complainant

Ext.X1 - A letter sent by the Senior Superintendent of Palakkad District Hospital

             dated.11.07.2017 to the  Senior Superintendent of Consumer Dispute

              Redressal Forum, Palakkad (Enclosing – Medical Certificate of the

    complainant)

Exhibits marked on the side of Opposite parties

Ext.B1 -  Insurance copy of United India Insurance Company Ltd.

Ext.B2 -  Original inpatient record of the complainant

Ext.B3 -  Photocopy of Terms & conditions of the policy

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost

          Rs.10,000/-