Dr.Varun Venu V/S Muhammed Abdul Hameed M.E. - Consumer Court Case

Kerala

Palakkad

CC/172/2016

Muhammed Abdul Hameed M.E. - Complainant(s)

Versus

Dr.Varun Venu - Opp.Party(s)

03 Feb 2018

ORDER

CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Near District Panchayath Office, Palakkad - 678 001, Kerala

Complaint Case No. CC/172/2016

( Date of Filing : 02 Nov 2016 )

1. Muhammed Abdul Hameed M.E.

S/o.Iramutty Mussaliyar, Melangadi House, Karinganadu, Vilayur Post, Palakkad - 679 309

Palakkad

Kerala

...........Complainant(s)

Versus

1. Dr.Varun Venu

Ortho Department, Kerala Medical College Hospital, Mangode, Cherpulassery, Palakkad - 679 503

Palakkad

Kerala

2. Kerala Medical College Hospital

Mangode, Cherpulassery, Palakkad - 679 503

Palakkad

Kerala

............Opp.Party(s)

BEFORE:
	HON'BLE MRS. Shiny.P.R. PRESIDENT
	HON'BLE MR. V.P.Anantha Narayanan MEMBER

For the Complainant:

For the Opp. Party:

Dated : 03 Feb 2018

Final Order / Judgement

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 03^rd day of February 2018

Present : Smt.Shiny.P.R. President

: Sri.V.P.Anantha Narayanan, Member Date of filing: 02/11/2016

(C.C.No.172/2016)

Muhammed Abdul Hameed.M.E,

S/o Iramutti musaliyar,
Melangadi House,

Karinganadu,

Vilayur (PO),

Palakakd – 679 309. - Complainant

1. Dr.Varun Venu,(Ortho Department),

Kerala Medical College Hospital,

Mangodu, Cherpulasseri,

Palakkad – 679 503

2. Kerala Medical College Hospital,

Mangodu, Cherpulasseri,

Palakkad – 679 503 - Opposite parties

(Advs.P.N.Balagopalan & R.Aswathy)

O R D E R

By Smt.Shiny.P.R. President.

Brief facts of complaint.

Complainant submitted that his daughter viz, Fathima, aged 8 years was taken to Kerala Medical College Hospital, Mangode on 10.10.2016 for removal of the two nail implants on the left forearm, which was done about 2 years back at a private hospital at Pattambi. On the advice of opposite party No.1 she was admitted in the 2^nd opposite party hospital. Complainant further submitted that he happened to see an advertisement in Malayalam Manorama Daily, that there is 50% discount for surgeries and so he took his daughter to this hospital. On 11.10.2016 at 11.30 am the child was taken to the operation theatre for surgery and ended at 2.30 pm. But after the surgery 1^st opposite party informed that both the nail implants could not be removed as it has joined inside the bone. He also stated that the same cannot be removed even if the child is taken to any other hospital. The surgery was done under Anastasia and it lasted for 3 hours. Though the surgery was not successful, 1^st opposite party advised to admit his daughter for 5 days in the hospital. But on 12.10.2016 he insisted for a discharge. The child was thereafter admitted in M.E.S Medical College Hospital, Perinthalmanna on 13.10.2016. On 14.10.2016 at 9.30 am the same surgery was conducted there by Dr.Rajneesh and in 40 minutes time both implants were removed without Anastasia. Only blocking alone was done. On 15.10.2016 the child was discharged. It is further alleged that for a simple surgery unnecessarily Anastasia was given and it led to two surgeries. So the complainant, his child and his other family members suffered physical, mental and financial loss. Hence complainant filed complaint seeking Rs.80,000/- as compensation from the opposite parties.

Complaint was admitted and issued notice to both opposite parties. Both opposite parties entered appearance and filed their version contending the following:-

The opposite parties admitted the averment in the complaint that the daughter of the complainant, Fathima, aged 8 years was brought to the Kerala Medical College, Mangode on 10.10.2016 and was seen by the 1^st opposite party and on his advice she was admitted in the hospital. Actually the child was brought by the complainant and his wife for removal of the intra medullary nail implant on the left forearm which was done at some other hospital about two years back. The previous treatment records on X-rays were not available with the complainant when he came to the hospital. After discussion with the complainant and his wife and on the available information gathered from them, the child was admitted in the hospital to do the surgery on 11.10.2016. Opposite parties contended that usually in children, intra medullary nail implant has to be removed after 6 months from the date of surgery. Otherwise there is possibility of impaction to the bone due to bone growth, covering of the tip of the nail due to bone growth and other related problems thereby making the nail implant removed very difficult. In this case also there was considerable delay for the removal. This was clearly explained by the 1^st opposite party to the complainant and his wife and they were fully convinced about the consequences, and complications of the proposed surgery. It is submitted that it is for the anesthesiologist to decide whether general anesthesia or regional block to the given to a patient posted for surgery depending on the age of the patient, duration and nature of the surgery etc. Accordingly on the advice of the anesthesiologist, surgery was carried out under general anesthesia on consent. When X-ray was taken, it was seen that the implanted nails had no sufficient tip length outside and also that the tip was left unfolded (without bend) during earlier surgery. As there was considerable delay in this case, for removal of the intra medullary nail implant, the complainant and his wife were informed about the difficulty of the surgery since it has to be done protecting the radial artery, nerves, tendons etc, time taken for the surgery due to the above reasons and its consequences. The complainant and his wife were fully convinced also. When opened for surgery, the tip of the nails implanted earlier were seen covered due to bone growth and so the 1^st opposite party had to labour much to find it out and to remove the same. As there was no sufficient tip length outside the bone and bend at the tip, that also caused great difficulty for removal of the nails. The entire procedure was done very carefully without causing any harm to the patient. It took some time to complete the whole procedure, but inspite of sincere and dedicated efforts on the part of the 1^st opposite party, the nails could not be pulled out then, due to the above reason. This was also explained to the complainant and his wife. The averment that the 1^st opposite party advised to admit the patient for 5 days in the hospital is not true. After surgery procedure, the patient was kept under observation and later shifted to the room the day itself. But on the next day the patient was get discharged by the complainant against the advice of the 1^st opposite party. The opposite parties are not aware of the surgery said to have been done at M.E.S Medical College Hospital, Perithalmanna on 14.12.2016. Since the entire procedure for a surgery for the removal of intra medullary nail implant was already completed by the 1^st opposite party, they would have made the subsequent surgery easier. This removal could have been done at the 2^nd opposite party hospital itself. The complainant is not at all justified in blaming the opposite parties for his laches. The averment that for a very simple surgery, unnecessarily anesthesia was given and that it led to two operations are all baseless, false and hence denied. The averment that the complainant and his family sustained physical, mental and financial loss on account of this, is also baseless, false and hence denied. There has been no deficiency of service on the part of the opposite parties. The complaint is totally frivolous. The claim of Rs.80,000/- as compensation against the opposite parties is baseless, unfounded and legally unsustainable. The claim is bad in law and therefore liable to be dismissed.

Both parties filed their respective chief affidavits. Exts. A1 to A15 are marked from the side of the complainant. Exts. B1 and B2 are marked from the side of the opposite parties. Complainant was cross examined as PW1. 1^st opposite party was cross examined as DW1.

The following issues that arise for consideration are.

Whether there is any negligence or deficiency in service on the part of opposite parties?
If so, what are the relief and cost?

Issues 1 & 2

Heard both parties. We have perused the documents filed before the Forum. Opposite parties admitted that 1^st opposite party treated the complainant’s daughter Fathima. Complainant admitted in his complaint that implant of two nail on the left forearm of his daughter was done about 2 years back at a private hospital at Pattambi. Opposite party contented that usually in children, intra medullary nail implant has to be removed after 6 months from the date of surgery. Otherwise there is possibility of impaction to the bone due to bone growth, covering of the tip of the nail due to bone growth and other related problems thereby making the nail implant removed very difficult. In this case admittedly complainant approached the 1^st opposite party for the removal of the nail implants after 2 years.

1^st Opposite party further contended that when X-ray was taken, it was seen that the implanted nails had no sufficient tip length outside and also that the tip was left unfolded (without bend) during earlier surgery. When opened for surgery, the tip of the nails implanted earlier was seen covered due to bone growth and so the he had to labour much to find it out and to remove the same. As there was no sufficient tip length outside the bone and bend at the tip that also caused great difficulty for removal of the nails. While cross examination complainant deposed that Hmt¸mknäv ]mÀ«n 2 sâ tlmkv]näenÂ kÀPdn¡p ap³]p FIvkvþtd FSp¯ncp¶p. FIvkvþtd It¸mÄ tUmIvSÀ FÃp hfÀ¶p, I¼n aqSn t]mbn«pv F¶v ]dªnÃ.. That X-ray has not been produced by the complainant at the time of evidence to disprove the contentions taken by the opposite parties.

More over Ext. B2 case sheet shows that 1^st opposite party has given proper treatment to the daughter of the complainant. 1^st opposite party contented that delay of more than two years in removing nail implant is the reason for the failure of the surgery. Complainant did not examine the doctor who has conducted the second surgery to the daughter of the complainant or file affidavit of the expert to prove that 1^st opposite party has failed to remove the nail implant due to his negligence and he has treated the patient without due care and caution. The doctor who has conducted the second surgery is the competent person to give evidence about negligence on the 1^st opposite party in removal of nail implant.

In the case of Martin F D Souza v Mohd Ishfaq I 2009 CPJ 32 SC Hon’ble Supreme Court held that a doctor cannot straight away be held liable for medical negligence simply because a patient has not favorably responded to treatment or surgery has failed.

It is settled legal preposition that, the onus of proving the alleged medical negligence in the treatment or diagnosis lies with the person alleging medical negligence. Therefore in this case the onus is upon the complainant to prove that the opposite parties were negligent in conducting the surgery of removal of implant. Complainant is failed to do so.

In the light of the above discussions we cannot attribute deficiency in service or negligence on the part of opposite parties. Hence we dismissed the complaint.

Pronounced in the open court on this the 03^rd day of February 2018.

Sd/-

Shiny.P.R.

President

Sd/-

V.P.Anantha Narayanan

Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 - Original OP Ticket No.84003/16 dated.10.10.2016 of Kerala Medical College