Tamil Nadu

Nagapattinam

CC/76/2010

R. Prakash - Complainant(s)

Versus

Dr.R. Neelakrishnan(ortho), Krishna Hospital and one another. - Opp.Party(s)

T.Vairavanathan

24 Dec 2014

ORDER

   Date of Filing     : 26.08.2010

                                                                                         Date of Disposal: 24.12.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

                   Tmt. R.GEETHA, B.A.,                             …. MEMBER II

 

CC. No.76/2010

 

DECIDED ON THIS 24th   DAY OF DECEMBER  2014.

 

R.Prakash

S/o Raman

26, Mariyamman Koil Street,

Kodukkanpalayam Village & post,

Cuddalore  Taluk & District.                                               … Complainant

                                                                                      

                                                                /versus/

 

  1. Dr.R.Neelakrishnan, M.S.(Ortho)

           Krishna Hospital,

           No.8, Pattamangala Street,

           Mayiladuthurai, Nagapattinam District.

  1. Dr.B.Gandhimathi, M.B.B.S., M.N.A.M.S.D (Ortho),

          110, Bazaar Street, Chidambaram,

             Cuddalore District.                                        ...Opposite parties

 

     

           

            This complaint having come up for final hearing before us on 09.12.2014 on perusal of the material records and on hearing the arguments of Thiru.T.Vairavanathan, Counsel for the complainant, Thiru.S.Raman, Counsel for the 1st opposite party, Thiru.V.V.Pandian, Counsel for the 2nd opposite party and having stood for consideration, till this day the Forum passed the following

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

 

2. The gist of the complaint filed by the complainant is that he while was playing cricket on Marina beach, Chennai with his friends on 12.07.2008, he got his right leg sunk  into a sand pit, sustained injury and took treatment in CSI multy speciality   Hospital at mylapore, Chennai.  Subsequently as he felt pain in right knee and was unable to walk freely, he contacted his maternal uncle named Mr.S..Mohan, who came in a taxi and took him to his house at Neyveli.  When the complainant contacted the 1st opposite party at his private clinic in Mayiladuthurai, where the opposite party no.2 is a visiting Doctor, the opposite part no.1 diagnosed the nature of injury as “Anterior Cruciate Ligament injury (ACL) , commonly known as “Sport Injury”.  The complainant was advised for wax therapy for some period of time for easy folding of his leg.  As the complainant did not have full recovery, the opposite party had advised the complainant to take MRI scan for the injured knee, for further treatment.  On seeing the MRI scan report taken on 09.04.2009, the complainant was advised surgery for his right leg to be done immediately. Therefore the complainant was admitted as an inpatient at the hospital of the opposite party no.1 on 22.04.2009, the surgery was performed by the opposite party no.2 on 23.04.2009 and he was discharged by the opposite party no.1 on 29.04.2009 with instructions to come after a week for review.

                        3. As the complainant was suffering from headache, severe fever and vomiting while staying in his uncle’s house in Neyveli, he was admitted in the hospital of opposite party no.1 on 07.05.2009, the opposite no.1 found that it was due to infection gave antibiotic medicines and there after the complainant was discharged on 13.05.2009 from the hospital. As there was no improvement, the complainant consulted the opposite party no.2 on 16.05.2009 and she also advised to take some more medicines and informed him that the surgery was done successfully and his ailments were due to untoward fear of complainant.  On 21.05.2009, the complainant had heavy pus with blood oozing out of the suture point and so was admitted in the hospital of opposite party no.1. As the opposite party no.1 was abroad, Dr.Manohar, who was in charge of the hospital at the time got instructions from the opposite party no.1 and gave treatment to the complainant as per the instructions of the opposite party no.1.  The complainant underwent blood test and pus culture test to find out the cause of infection at the suture point, but the reason could not be found out by the opposite parties no.1 and 2.  As the complainant got intolerable pain and could not walk and do any day to day affairs without the help of the others, he was taken to the Miot hospital, Chennai for further better treatment by his relatives and got admission on 28.05.2009.  After thorough examination of the complainant and the history of the case, the chief Doctor of Miot, found out that the reason for the pus and pain was due to the loosening of the titanium screw, that had been inserted into the right knee of the complainant by the opposite party no.2 in the hospital of the opposite party no.1 on 23.04.2009.  The opposite parties without finding the reason for the suffering and subsequent ailments of the complainant, have committed negligence and deficiency of service resulting in the loosening of the titanium screw.  The complainant issued legal notice to the opposite parties on 15.03.2010 and they gave a reply on 18.04.2010 and 24.06.2010 containing false and unacceptable averments.

                        4. The complainant had to undergo the surgery at the Miot hospital, for the removal of the titanium screw by the team of Doctors under the supervision of the Chief of Miot hospital and the complainant incurred huge expenses of Rs.2,00,000/- for the medical treatment at the Miot hospital due to the negligent and deficient service of the opposite parties 1 and 2.  The complainant have suffered permanent disability. 

            5.The gist of the written version filed by the 1st opposite party is that the allegations made in the complaint are denied, there is no prima facie case of negligence as against the 1st opposite party and the complaint is liable to be dismissed in limine. As per the decision of the Hon’ble Supreme Court, the complainant has to submit himself before a panel of eminent doctors to find out the medical negligence as alleged by him and then only the complainant can proceed before this Forum.  The complaint is also barred by limitation.  The contention of the reply notice sent by the lawyer of the 1st opposite party may also be read as part and parcel of this counter affidavit and the complaint shall be dismissed with the exemplary costs of this 1st opposite party.

                        6. The gist of the written version of the 2nd opposite party is that the averments in the complaint are denied, the 2nd opposite party has done proper surgical treatment to the complainant with care and caution and the treatment given to the complainant is universally accepted technique and the surgery was in accordance with standards that is followed for all the patients who undergo Arthroscopy ACL reconstruction, there is no negligence on the part of the opposite party no.2 in fixing the titanium screw. The complaint is not maintainable without the complainant’s undergoing an examination before the panel of Doctors to find out the alleged medical negligence on their part. Most of the allegations made by the complainant are false and self-serving in order to threaten the opposite parties and the complaint is therefore liable to dismissed.

                        7. The complainant has filed his proof affidavit reiterating all the averments made in the complaint and filed 19 documents, which are marked as Exhibits A1 to A19. Both the opposite parties have filed their respective proof affidavits in support of their defence. The report filed by the Medical Board at the Government District Quarters Hospital, Nagapattinam, is filed and marked as Exhibit C1. Written arguments have been filed by the complainant and the opposite parties.

8.Points for Consideration:

1. Whether there is deficiency of service on the part of the opposite parties?

            2. Whether the complainant entitled any relief? If so to what relief?

9. Point 1: The main allegation of the complainant is that he underwent surgery in the hospital of opposite party no1. done by the opposite party no.2 for Anterior Cruciate Ligament injury (ACL), after his discharge from the hospital on 29.04.2009 he again re-admitted as an inpatient for fever, headache and vomiting on 07.05.2009 and the 1st opposite party prescribed medicines for food poisoning and discharged on 13.05.2009 and subsequently he contacted the 2nd opposite party who did the surgery on 16.05.2009 and she also advised to continue the treatment for food poisoning, that on 21.05.2009 he found pus was oozing out from the suture point of the  surgery, he admitted himself in Miot hospital for better treatment and there it was found out that the titanium screw fixed by the opposite party no.1 during the surgery had been loosened causing the said complications to the complainant and another surgery was done in the Miot hospital whereby the titanium screw was removed and thereafter the complainant has sustained disability and could not walk or run normally, could not fold his legs, could not keep his legs hanging for even 30 minutes, could not use ascending staircase, could not use two wheeler, could not attend to the MBA examination held in May 2009, his marriage proposal was also dropped in the month of May 2009 and only because of the negligent and deficient of service on the part of the 1st and 2nd opposite parties, the complainant had to undergo another surgery at the cost of about Rs.2,00,000/-.

                        10. The contention of the opposite parties is that the loosening the titanium screw is only in consequence of the pus formation owing to the infection caused to the complainant only because of his own improper maintenance of his health during the post operation period and no negligence or deficiency of service could be attributed to the opposite parties.

                        11. The diagnosis of the  injury of the complainant to be Anterior Cruciate Ligament injury, the admission of the complainant in the hospital of 1st opposite party on 22.04.2009, the surgery done by the 2nd opposite party on 23.04.2009, the discharge of the complainant in normal condition on 29.04.2009, the re-admission of the complainant in the said hospital on 07.05.2009 for the complaint of fever, vomiting and headache and his discharge on 13.05.2009 after taking medicines as prescribed by the 1st opposite party, his consulting the 2nd opposite party on 16.05.2009 at her clinic in Chithambaram, the oozing out of pus from the surgical wound, admission in the Miot hospital, the re-surgery  at the Miot hospital for removing the titanium screw which was loosened are all admitted facts.

                        12. It was argued on the side of the complainant that when he approached by the 1st opposite party for fever, headache and vomiting the latter without diagnosing properly had prescribed medicines for food poisoning and it was confirmed by the 2nd opposite party also and only at the Miot hospital it was found out from the X-Ray that the titanium screw had been loosened and there was pus formation oozing out from the wound and only after the removal of the titanium screw, the complainant was free from the said ailments of headache, fever and vomiting.  Had the opposite parties taken an X-ray and found out the loosening of the titanium screw when he approached the 1st opposite party on 07.05.2009 or the 2nd opposite party on 16.05.2009 the complainant would not have undergone the suffering and taken treatment at the Miot hospital, at the huge expenditure of Rs.2,00,000/-(Rupees two lakhs only).On the side of the opposite parties it is contended that the complainant was discharged after surgery from hospital of the 1st opposite party  on 29.04.2009 in a normal condition.  When the complainant approached the 1st opposite party on 07.05.2009 and subsequently the 2nd opposite party on 16.05.2009 for his ailment of vomiting, fever and headache, he had not complained of any pain or any inconvenience at the ACL operated site and therefore he was treated for food poisoning as the symptoms were so. An X-ray or any other diagnostic procedure at the time was needless at the ACL surgery site was fully healed and there was no complaint from the complainant. Even when the complainant consulted the 2nd opposite party on 16.05.2009, he was walking normally with no complaint whatsoever on the ACL surgery site there was no swelling over his operated knee nor any discharge from the suture site and therefore he was advised to continue the same medication. At this juncture the attention of this Forum is drawn to the deposition of the evidence of the complainant during the course of the cross examination. He has admitted that on 29.04.2009, he was in a good and normal condition when discharged. But his deposition during the course of cross examination is that after his discharge from the hospital on 23.09.2009 he again went to the 1st opposite party as there was oozing out of blood in the surgery site and fever on 07.05.2009. But subsequently he has admitted that on 07.05.2009 he contacted the 1st opposite party as he was suffering from headache, fever and vomiting and there was no bleeding at the surgery site.  Further he has admitted that only owing to the infection at the surgical site he had food poisoning for which the doctor had prescribed medicines.  He had oozing out of the blood and pus only on 21.05.2009 as admitted by him. The opposite party 2 during the course of her cross examination by the complainant has made it clear that she did not go for an X-ray with respect to the surgical site as there was no complaint of any pain or inconvenience by the complainant. Further the infection could not be noticed by an X-ray and only the position of the screw alone could be found out in an X-ray which she did not suggest for the said reason. For the question put to her by this Forum as to what sort of treatment would have been given by her to the complainant had she found out that there was pus formation and the loosening of the screw, the opposite party No.2 has answered that she would have cleaned the site of pus and re-fixed the titanium screw, or if needed would have fixed an alternative screw. When this Forum questioned her as to her opinion as regards the removal of the titanium screw from the surgical site of the complainant in the Miot hospital, she has given the answer that the titanium screw need not have been removed at all, which answer appears to be  an acceptable one by this Forum.

                        13. At this stage it is very much material to decide as to whether the loosening of the titanium screw caused the pus formation at the surgical site of the complainant or the pus formation caused the loosening of the titanium screw therein. No doubt the complainant had already infection resulting in his fever, headache and vomiting and the infection ought to have been caused only because of his own improper maintenance of his health or hygiene. For the infection caused to the complainant no negligence or deficiency of service could be attributed to the opposite parties.   On the side of the opposite party no.2 a medical literature Champman’s Orthopedic Surgery 3rd Edition is submitted and therein it is observed as follows, “Loosening of the prosthesis, an important cause of clinical failure following total joint replacement, may be due to faulty implantation of the prosthesis, to trauma, or to Infection in the tissues adjacent to the implant.” The said proposition undoubtedly clarifies the position that the infection of the complainant has caused the pus formation at the surgical site, which in turn has resulted in the loosening of the titanium screw.

                        14. On the side of the complainant the Article by Dr.C.M.Fay on “complications associated with use of “Auterior Cruciate Ligament Fixation Devices” is submitted wherein it is observed “Screw migration, either early or late, may be the result of technical issues: inadequate insertion, divergence, small screw size, screw thread design, and fracture of pos-terior tunnel wall.  A nontechnical, biological issue is poor bone quality or bone resorption due to thermal necrosis caused by drilling”.  On comparative study of the said two propositions this Forum has held that the pus formed by the infection alone has caused the loosening of the screw at the surgical portion of the complainant and no negligence or deficiency of service could be attributed to the opposite parties.

                        15. This Forum though appreciates the attitude of the opposite party no.2 in not taking an X-ray when complainant contacted on 16.05.2009 as it would have been redundant, unnecessary, besides causing needless expenses to the patient, at the same time, feels that as the doctor who did the surgery had she gone for an X-ray atleast to find out the inherent position of the ligaments’ out of curiosity atleast, she would have found out the loosening nature of the titanium screw and given the same treatment for a lesser expenses which treatment had been  given to the complainant at Miot hospital at the alleged cost of Rs.2,00,000/-. Therefore this Forum feels that it would be justifiable and reasonable in all aspects, if the opposite parties are directed to bear the actual expenses incurred by the complainant at the Miot hospital for the removal of the titanium screw and irrigation of the wound.

                        16. The learned counsel appearing for the 1st opposite party  has submitted the decision reported in (2010) 3 MLJ 512 (SC) in which the Hon’ble Supreme Court of India has held that as long as doctors have performed their duty and exercised ordinary degree of professional skill and competence they cannot be held guilty of medical negligence.

                        17. The Exhibit A1, the office copy of the notice sent by the complainant’s counsel to the opposite parties, Exhibit A2, the preliminary reply by the 1st opposite party to the complainant’s counsel, Exhibit A3, the preliminary reply given by the 2nd opposite party to the complainant’s counsel, Exhibit A4, the final reply given by the 1st opposite party to the complainant’s counsel, Exhibit A5, the final reply given by the 2nd opposite party’s counsel to the complainant’s counsel, Exhibit A6, the X-ray taken at the Miot hospital, Exhibit A7, The discharge summary issued at the Krishna Hospital, Myiladuthurai, Exhibit A8, the receipt of the payment for the medical expenditure incurred by the complainant at the Krishna Hospital, Exhibit A9, the letter given the 1st opposite party to the Doctor of the Miot hospital, Exhibit A10, a letter given by Dr.P.V.A. Mohandas of Miot hospital to the 1st opposite party, Exhibit A11, the certificate given by the doctor of Miot hospital in connection with the treatment given the complainant, Exhibit A12, the discharge summary issued by the Miot hospital to the complainant, Exhibit A13, the MRI scan report, Exhibit A14, the clinical laboratory report given in the Miot hospital, Exhibit A15, the MRI scan, Exhibit A16, the bunch of bills for payment of various medical expenses by the complainant during his treatment with the 1st opposite party. Exhibit A17, another bunch of bills for the payment the medical expenses given in the Miot hospital, Exhibit A18, the bunch of medical prescriptions given by the 1st opposite party and Exhibit 19, the medical prescription given by the 2nd opposite party to the complainant are filed as documentary evidence on the side of the complainant. The very production of Exhibit A10 by the complainant, itself goes to show that the opposite party no.1 has got no knowledge of it.

                        18. The complainant has no visible physical infirmity or disability at all.  This Forum finds him to walk normally without limping and stands at ease in normal posture throughout during the course of cross examination by the opposite parties’ counsels.  There is no proof of his alleged inability to attend the MBA examination  held in May 2009 or the alleged  drop of his marriage proposal in the month of May 2009 and the many shortcomings enumerated at the 12th paragraph of his complaint are superfluous and trivial in nature.

19. The Exhibit C1, the Medical Board Report is of no probative value at all in view of the bald and hollow nature of the document. It is a non-speaking report containing one line. This Forum regretfully points out that the Board has not taken care even to notice the grammatical error crept therein. It is really shameful for the Board when the learned counsel for the complainant pointed out during the course of the arguments that, in the report instead of “Mr.Prakash…. is examined clinically” it is typed “Mr.Prakash….examined clinically”, which throws light on the reckless attitude and lack of devotion duty on the part of the Medical Board in its failure to correct the errors found in the said report containing only three lines.

                        20. Point 2: In the result the complaint is partly allowed. Eventhough there is no negligence or deficiency of service on the part of the opposite parties, their omission to take a routine X-ray of the surgical site of the complainant when he called on them on 07.05.2009 and 16.05.2009 has caused his incurring heavy expenditure at the Miot hospital, for the removal of the titanium screw and the wound irrigation treatment. The actual expenditure incurred by the complainant at the Miot hospital  as evidenced by Exhibits A17 is Rs.30,391/-, which is rounded of to Rs.31,000/-. The opposite parties no.1 and 2 are directed to pay the said sum of Rs.31,000/-(Rupees thirty one thousand only) jointly or severally with interest at the rate of 12% per annum from 04.06.2009, the date of discharge of the complainant from the Miot Hospital, Chennai, till the date of realization. The opposite parties are further directed to pay jointly or severally a sum of Rs.5,000/-(Rupees five thousand only) towards cost of this complaint to the complainant.

This order is dictated by me to the Steno-Typist, directly typed by him, corrected and pronounced by me on this  24th   day of  December 2014.

 

 

MEMBER I                                    MEMBER II                                        PRESIDENT

List of documents filed by the complainant

 

Ex/A1.Dt.15.03.2010: The office copy of the notice sent by the complainant’s lawyer to

    the opposite parties with postal acknowledgment of opposite    

     party no.2

Ex/A2.Dt.20.03.2010: The preliminary reply sent by the 1st opposite party to the

   complainant’s counsel.

Ex/A3Dt.31.03.2010: The preliminary reply sent by the 2nd opposite party to the

              complainant’s counsel.

Ex/A4Dt.18.04.2010: The final reply sent by the 1st opposite party to the complainant’s

   counsel.

Ex/A5:Dt.24.6.2010: The final reply sent by the 2nd opposite part’s counsel to the

  complainant’s counsel.

Ex/A6.Dt.28.05.2009:  The X-ray  taken for the complainant.

Ex/A7.Dt.29.04.2009: The discharge summary issued by the Krishna hospital,

   Maiyladuthurai to the complainant.

Ex/A8.Dt.19.04.2009: The receipt issued by the the Krishna hospital, maiyladuthurai to

                          the complainant

Ex/A9.Dt.27.05.2009: The letter given by the 1st opposite party to Dr.Mohandass, Miot

   hospital, Chennai.

Ex/A10.Dt.28.05.2009:The letter given by the said Dr.Mohandass to the 1st opposite

      party.(Original)

Ex/A11.Dt.30.07.2009: The certificate given by the Miot hospital, Chennai.

Ex/A12.Dt.04.06.2009: Discharge summary issued by the Miot hospital, Chennai to the

     complainant.

Ex/A13.Dt.09.04.2009: The MRI Scan of the complainant.

Ex/A14.Dt.28.05.2009: The clinical report of the Miot hospital, of the complainant.

Ex/A15.                        : MRI Scan taken for the complainant.

Ex/A16.                        : The bunch of Medical Bills of the complainant during his

     treatment with the 1st opposite party’s hospital.

Ex/A17.                        : The bunch of medical bills issued in the Miot Hospital, Chennai,

Ex/A18.                        :The bunch of prescription given by the 1st opposite party.

Ex/A19.Dt.16.05.2009: The medical prescription given by the 2nd opposite party.

 

Exhibit of the Forum

Ex.C1.Dt.23.08.2011: The Medical Board Report.

 

 

MEMBER I                                    MEMBER II                                        PRESIDENT

 

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