IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 31st day of August, 2015
Filed on 22.08.2011
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.290/2011
between
Complainant:- Opposite Parties:-
Sri. Unnikrishnan Nair 1. Dr. Raju George
Sajith Bhavanam ENT Surgeon, Sahrudaya
Punnapra P.O., Alappuzha Hospital, Thathampally
(By Adv. M. Sunilkumar) Alappuzha
2. Sahrudaya Hospital
Thathampally, Alappuzha
Represented by its Director
Dr. Abraham Thayyil
(By Adv. Preetha K. John)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant was a driver working at abroad. Due to nasal block and breathing difficulties, he consulted the first opposite party the Surgeon at the second opposite party on 4.7.2010, after consultation first opposite party advised some medicine to the complainant for 2 days. Thereafter the complainant again visited the first opposite party and first opposite party advised the complainant to undergo a surgery for permanent recovery from the disease. Accordingly the surgery was conducted on the nose of the complainant for nasal polypectomey on 28.7.2010. On that day evening complainant and his by standards noticed swelling on the left eye area of the complainant. They informed it to the first opposite party. After conducting a through check up the first opposite party informed the complainant that it is only a side effect of the surgery be cured within 24 hours. But on the next day evening due to severe pain and loss of vision of left eye, complainant and his by stander approached the first opposite party and informed the present condition of the complainant. But the first opposite party without conducting any check up, advised the complainant and his relatives that the problem will be solved within days. Thereafter the first opposite party allowed the complainant to remain in the hospital without giving proper treatment and discharged on 3.8.2010. Thereafter the complainant was admitted to Medical College Hospital, Alappuzha at Ophthamology Department and there he consulted Dr. Daliya on 6.8.2010. He told the complainant that while undergoing surgery a vein related to eye was injured. Then the complainant realized that he has been cheated by the opposite parties. About one week treatment at MCH., Alappzuha and on receiving the expert opinion from Dr. Daliya, complainant discharged from the hospital and admitted to Little Flower Eye Hospital, Angamali on 13.8.2010. In the Little Flower Hospital, Angamali, various tests were conducted and treatment was done. Such as “Left sphenoid ostium identify and lateral wall exposed, optic nerve prominence identified traced back to sphenoethmoidal junction. Injury due to the previous surgery noted at the junction with medical wall contents protruding into the nasal cavity along with fat, the bony fragments removed and contents freed. The initial diagnosis in the Little Flower Hospital, Angamali shows left optic nerve injury and left medial rectus injury. All these problems are caused only on the rash and negligent acts of the first opposite party. If the first opposite party was a little care and cautious while conducting the surgery, the difficulties caused to the complainant has to be avoided. The above act of the first opposite party is clearly a medical negligence and deficiency in service on the part of the opposite parties. Second opposite party is vicariously liable for the negligent acts of the first opposite party as he is the employer of the first opposite party. As regards the work of the complainant who is a driver by profession the loss of the vision of one eye and divergent squint remitting total disablement to do his job. Alleging deficiency in service on the part of the opposite parties, the complaint is filed claiming the following reliefs:-
- To pass a decree allowing the complainant to realize the cost of treatment amounted to Rs.94,000/- with interest from the opposite parties.
- To pass a decree allowing the complainant to realize Rs.10,20,000/- with interest from the opposite parties as the compensation for his loss of earnings.
- To pass a decree allowing the complainant to realize an amount of Rs.1,00,000/- from the opposite parties as compensation for his pain and sufferings.
2. The version of the opposite parties is as follows:-
The complainant approached the second opposite party on 1.7.2010 and consulted the first opposite party and again visited on 3.7.2010 and he had been given medicines for 7 days. Since there was no change in his condition, he was advised admission on 28.07.2010. Both anesthetic and medical checkups were done and as it was found that he was fit for surgery, the surgery was fixed to 29.7.2010. On 29.7.2010 at 10 a.m. surgery was started and immediately after removal of polyp as first opposite party doctor noticed a minimal fullness of the left eye lid in the left most corner of the eye, immediate consultation of the ophthalmologist Dr. Venugopal was sought for. He gave a tight bandage to the eye and prescribed medicines to the complainant and was shifted to post operative room for observation. As the complainant had sudden haematonesis physician was called for post operative room as an emergency and blood transfusion was done under his instruction. Due to the timely intervention of doctors of second opposite party hospital the patient became all right. A close monitoring of the patient was done by the doctors regularly. As he had no complaint what so ever first opposite party removed the anterior nasal pack on 30.7.2010. The complainant had no complaint either as pain or bleeding these days. There were regular checkups of the patient by Ophthalmologist also during these days. On 31.7.2010 as it was noticed that the complainant had echymosis of conjunctiva and lids of left side he was asked to continue medicines for 5 more days by the ophthalmologist. As Dr. Venugopal reported that the patient’s orbit is absorbing well and since it will take some days for absorption of blood from orbit, he was discharged from the hospital with antibiotics, anti inflammatory drugs vitamins nasal drops with the advice for a review after medicines. At the time of discharge on 3.8.2010 he had no complaints either pain, bleeding, headache or nasal discharge. The patient was treated with utmost care and caution while in second opposite party hospital and there was no negligence or deficiency in service from the part of the opposite parties.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A7. Dr. Daliya, the Asst. Professor, Government T.D. Medical College, Alappuzha was examined as PW2. Dr. Elizabeth, the Ophthalmologist, 57 years was examined as PW3. The first opposite party was examined as RW1. The documents produced were marked as Exts.B1 and B2. Dr. Manoj Venugopal was examined as RW2.
4. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) If so the reliefs and costs?
5 . Point No.1:- The complainant was admitted in the second opposite party hospital on 28.7.2010 and first opposite party conducted nasal surgery on the complainant on that day itself. The complainant was discharged from the second opposite party hospital on 3.8.2010. According to the complainant, he was admitted to the second opposite party hospital due to breathing problem. According to the complainant after surgery he has sustained left optic nerve injury and left medial rectus injury due to the negligent act of the first opposite party in performance of the surgery. The first and second opposite parties filed version denying the negligence on their part. The learned counsel of the opposite party argued the matter relying decision reported in 2014 (3) CPR Page 146 (N.C.) and 2010(1) CPR Page 107 (SC). The main contention of the opposite party is that in the nature of surgery conducted Orbital hemorrhage and damage to optic nerve and medical rectus muscle is a medically accepted complication and opposite party had taken all care and protection while doing polypectomy and on noticing orbital hemorrhage treatment was carried out by ophthalmologist and hence there is no negligence or deficiency of service on their part. In order to prove this contention, the opposite parties produced the case sheet of the complainant which marked as Exts.B1 and B1(a). Ext.B1 contains the Doctors’ orders and Ext.B1(a) contains Nurses’ Medication records. On verifying Ext.B1, it is seen that the complainant was discharged on 3.8.2010 and at the time of discharge, “Orbital hemorrhage in the orbit is absorbing well, so much so vision is also improving.” So it is clear that no complications noted by the opposite parties at the time of discharge. It is also noted that the complainant was discharged not at his request. According to the complainant, he continued the medicines prescribed by the first opposite party. But due to watery nasal discharge and diminished vision of left eye, he was admitted to the Medical College Hospital, Alappuzha at Ophthalmology Department and there he consulted Dr. Dalia on 6.8.2011. Dr. Dalia was examined as PW2. While cross examining the PW2, she admitted that, “Patient-
Ext.A2 is the discharge card from the Medical College Hospital, Alappuzha. In Ext.A2 it is clearly stated that, “CT orbit done - Mucosal thickening + in all sinus except (R) sphenoid papracea. Erosion of Antero-super aspect of (L) Lamina papriae. Apart from that Ext.A2 also shows that the complainant was discharged with an advice to attend higher centre for further opinion and management. Accordingly he was admitted to Little Flower Hospital, Angamali on 13.8.2010. Ext.A3 is the case summary and discharge card of Little Flower Hospital, Angamali. It shows the treatment undergone as, “Left sphenoid ostium identified and lateral wall exposed, Optic nerve prominence identified traced back to sphenoethmoidal junction. Injury due to the previous surgery noted at the junction with medial wall contents protruding into the nasal cavity along with fat, the bony fragments removed and contents freed.” The surgeon of Little Flower Hospital, Ankamali was examined as PW3. While cross examining PW3, she stated that, “Scan
So from the evidence on record, it is clear that an injury happened to the left optic nerve and left medial rectus due to the surgery conducted by the first opposite party at second opposite party hospital. The attempt by producing the Ext.B1 by the opposite party was to prove that on the date of surgery itself there was consulting by the ophthalmologic surgeon and also follow-ups by him till discharge. But the ophthalmologic surgeon was not examined as he was not alive. The ophthalmologic surgeon’s son was examined to prove the entries and handwritings of the ophthalmologist in the Ext.B1. But the admitted handwritings of the ophthalmologist was not produced for comparison. Moreover the ‘so called’ entries in Ext.B1 by the ophthalmologist is not seen properly signed by him, and signature is also not proved. Apart from that in Ext.B1(a) page 16 the portion of the entries describing the intervention of the ophthalmologist is seen pasted subsequently, and is a patent fabrication of the document. The medical records have vital role in the case of medical negligence provided it should be properly maintained and proved.
6. In the instant case, the so called entries made by the ophthalmologist contains no signature, his handwriting is not properly proved by producing the admitted handwriting and specimen signature. In addition to the same, the fabrication contained in Ext.B1(a) also negatives the evidentiary value of Ext.B1. Apart from the production of Ext.B1, no other independent evidence is adduced to prove that there was effective consultation of ophthalmologist during and immediately subsequent to the surgery. The son of the ophthalmologist was examined as RW2. But he was not asked to produce a specimen of his father’s handwriting or signature so as to compare with the entries in Ext.B1 and to convince the Forum that what is stated by RW1 is true. Hence the opposite parties have failed to prove their contention that they had taken all care, precaution and protocol in doing the surgery, especially when the opposite parties admit that the surgery performed is the one medically accepted complication like Orbital hemorrhage. It has come out in evidence that subsequent to discharge from the opposite party’s hospital the complainant developed further complications and had to undergo further treatment, first in the Medical College Hospital, and thereafter at Little Flower Hospital, Angamali the detail of which we narrated above. PW3 the Ophthalmologist surgeon who treated the complainant stated in her deposition that due to the injuries sustained in the front nasal surgery to the optic nerve, the vision of the complainant was diminished about 30% and there is still squint to the eye of the complainant which is not fully cured. In the light of the above facts, this Forum is of the considered opinion that the subsequent complications were developed after the surgery due to the defect and deficiency in service from the part of the opposite parties especially the nasal surgery conducted to the complainant. The complications were detected after discharge and had there been a scanning test after discharge, the complications could have been detected in time. The patient was discharged without confirming his exact condition which amounts to negligence from the part of the opposite parties one and two, which also amounts to defect and deficiency in service from the part of the opposite parties. The first opposite party has performed the operation as an employee of the second opposite party and hence the second opposite party is vicariously liable for the acts of negligence of the first opposite party which resulted damage to the complainant. Moreover there is direct negligence from the part of the second opposite party for not providing the service of an ophthalmologist as required in the given situation. Hence we are of considered opinion that the opposite parties are jointly and severally liable to compensate the damage caused to the complainant.
7. Point No.2:- The complainant has produced medical bills of M/s. Little Flower Hospital, Angamali. Hence he is entitled to claim the expenses incurred by him. The complainant has claimed Rs.94,000/- towards costs of treatment, but failed to produce supporting medical bills for the same. Ext.A4 series are medical bills of second opposite party. This is a case in which the complainant has undergone additional treatment due to surgery at second opposite party hospital. Hence the complainant is entitled to claim only additional expenses. Ext.A5 series, Exts. A6 and A7 series shown the additional expenses incurred by him, and that amounts to Rs.51,000/-. Hence an amount of Rs.51,000/- is allowed towards expenses for the treatment. This Forum has already found that there is negligence from the part of the opposite parties in providing treatment to the complainant which caused both monitory expenses, mental agony and pain due to the following up treatments, he had to undergo in two different hospitals subsequently and also on account of permanent partial disability due to diminished of vision. Hence the Forum is of the considered opinion that an amount of Rs.50,000/- is adequate to compensate the mental agony and pain suffered by the complainant during the subsequent treatment.
In the result, the complaint is allowed. The opposite parties 1 and 2 are directed to pay an amount of Rs.51,000/- (Rupees fifty one thousand only) towards expenses for the medical bills. The opposite parties 1 and 2 are further directed to pay an amount of Rs.50,000/- (Rupees fifty thousand only) towards compensation and Rs.2000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 31st day of August, 2015.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Unnikrishnan Nair (Witness)
PW2 - Dr. Daliya (Witness)
PW3 - Dr. Elizabeth Joseph (Witness)
Ext.A1 - Discharge Summary
Ext.A2 - Discharge Summary
Ext.A3 - Case Summary and discharge record of Little Flower Hospital, Angamali
Ext.A4 series - Medical bills of Sahrudaya Hospial, Thathampally
Ext.A5 series - Medical reports
Ext.A6 & A7 series - Medical bills of Little Flower Hospital, Angamali & other hospitals
Evidence of the opposite parties:-
RW1 - Dr. Raju George (Witness)
RW2 - Dr. Manoj Venugopal (Witness)
Ext.B1 - Doctor’s Case Sheet
Ext.B2 - Nurses’ Case sheet
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/- Compared by:-
