KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 227/2002
JUDGMENT DATED:23-11-2010
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU :PRESIDENT
1. Dr. Martin Joseph,
Medicare Hospital (P)Ltd,
T.K.S.Puram, Kodungallur.
2. Medicare Hospital (P) Ltd., : APPELLANTS
T.K.S.Puram, Kodungallur,
R/by the Managing Director,
Medicare Hospital, T.K.S.Puram,
Kodungallur.
(By Adv.Sri.M.K.George)
Vs.
Faizal (Minor), R/by his father & Natural
Guardian, Muhammadali, S/o Karukappadath : RESPONDENT
Kunjumuhammed, Kaipamangalam, Kodungallur.
JUDGMENT
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
The appellants are the opposite parties in OP.571/99 in the file of CDRF, Thrissur.
2. The appellants are under orders to pay a sum of Rs.2.lakhs to the minor complainant and Rs.50,000/- to the complainant with 4% interest from 22/6/1999 and to pay Rs.10,000/- as compensation for mental hardship, inconvenience etc and also to pay Rs.1000/- as costs.
3. It is the case of the complainant who is a minor aged 9 years represented by his father that a wooden piece pierced his left leg while playing and that he was taken to the 2nd opposite party hospital wherein he was admitted on 13-9-1997 and a surgery was conducted by one Dr.Mohammed Sayed for removing pus. Thereafter the complainant was referred to the 1st opposite party, Orthopedic Surgeon. The 1st opposite party conducted an operation on the leg on 23/9/1997. The complainant was an inpatient at the time for 25 days. On 13/10/1997 the doctor advised that the wooden splinter is still inside the leg and advised MRI scan. On receipt of the scan report on 18/10/1997 a surgery was conducted to trace out the wooden piece and then kept the wound open without suturing. Later on 18/11/1997 POP cast was applied and on 28/11/1997 the plaster was removed. It was found there is a piece of flesh projecting outside. The same was removed on 29/12/1997. The complainant was attending the OP for dressing the wound up to 12/1/1998. On 12/1/1998 as advised by the 1st opposite party doctor the complainant was admitted as inpatient for Physiotherapy. Throughout the period of treatment the complainant was having intense pain and discharge of pus. The 1st opposite party doctor advised that it will take time to heal the wound and there is nothing to worry. On 17/3/1998 blisters appeared on the portion of the leg. As advised again X-ray was taken. Subsequently also blisters appeared. Although it was suggested by the father of the complainant that 2nd consultation may be done with another doctor. The first opposite party dissuaded the complainant and assured that there is nothing to worry. He was being examined on alternate days. On 24/7/1998 again blisters appeared at the affected area. On 28/8/1998 also blisters appeared. On 31/8/1998 the father of the complainant insisted for referring the patient to another doctor and hence the 1st opposite party referred the complainant to Dr. Sunny Pazhayattil. The X-ray given along with the treatment records was found to be that of another person. The same was again taken to the 1st opposite party and the correct X-ray film was returned. On 11/9/1998 Dr.Sunny Pazhattil operated the affected portion and removed the wooden piece which the complainant has produced before the Forum. The complainant was an inpatient at the Mother Hospital wherein Dr.Sunny Pazhayattil is attached for 24 days. Although as directed by the 1st opposite party the complainant was subjected to X-ray a number of days and twice operated the 1st opposite party could not detect the wound piece. The delay in this regard was only on account of the carelessness and negligence of the 1st opposite party. The complainant was under the treatment of the 1st opposite party for a long time and had to undergo painful surgical procedures and suffered excruciating pain. More than Rs.50,000/- was spent for a treatment. Altogether he has exclaimed a sum of Rs.4,50,000/- as compensation.
4. Opposite parties have filed joint version admitting that on 22/9/1997 Dr.Mohammed Sayed had referred the complainant to the 1st opposite party. There was discharging of sinus and it was suspected that there is retention of foreign body. The X-ray taken as per the advice of Dr.Sayed did not reveal any foreign body. There was evidence of Osteolytic lesion of calcaneum. He was already under antibiotics. On 23/9/1997 exploration and curettage of the sinus was done under sedation. But there was no foreign body visible. Culture sensitivity test was done and appropriate antibiotics administered. There was discharge on 8/10/1997. On 13/10/1997 when examined there was persistent discharge. Hence possibility of a retained foreign body was suspected and MRI scan was advised. The MRI scan report showed that there was two Osteolytic lesion of calcaneum which was suggestive of chronic Osteomylitis. There was no evidence of foreign body as per the report. The father of the patient was advised to have a second opinion but they expressed full satisfaction in the treatment of the 1st opposite party. On 18.10.1997 a second surgery under general anesthesia was done. The infected area of the bones was thoroughly curetted. In fact bone calcaneum was split and kept open and the patient had daily dressings. This was the standard treatment for such a condition. Keep open the wound would facilitate the migration of the foreign body externally if present in the near vicinity. Plaster cast was put on 18/11/1997 and it was changed on 28/11/1997. When reviewed on 25/12/1997 it was found that there was some amount of hyper trophic granulation and this was removed under sedation on 29.12.1997. It is only possible that the patient would have pain and swelling when he started walking as there was chronic infection calcaneum and had prolonged immobilization. The patient was readmitted on 12/1/1998 for Physiotherapy and discharged on 15/1/1998 with advice to continue weight bearing. On 17/3/1998, the patient came with blister over the sinus. So another X-ray was taken which showed improvement of initial lesion. Dressing was given and advised periodical review. On 24/7/1998 another blister appeared and X-ray was repeated which did not reveal any foreign body. Again blister appeared by the end of August. As there was no evidence of foreign body even after repeated X-rays and MRI scan the patient was referred to Dr.Sunny Pazhayattil, Senior Orthopedic Surgeon. It is denied that there was any negligence on the part of the opposite party in the treatment administered. The standard protocol for detection of the suspected foreign body was observed. It is stated that no guarantee can be given especially in a case of chronic osteomylitis. It is pointed out that the 1st opposite party has made every effort to detect the foreign body like MRI scan. The opposite parties have denied any liability.
5. The evidence adduced consisted of the testimony of PWs 1 and 2 and DWs 1 to 3, Exts.P1 to P8, R1, X1, MO1 series – X rays and MO2 foreign body.
6. The Forum has held that the 1st opposite party was negligent in the treatment administered to the complainant. It was also observed that Ext.R1 case sheet kept at the 2nd opposite party hospital appeared to be not properly kept and held the opposite party liable.
7. Admittedly the complainant was under the treatment at the 2nd opposite party hospital from 13/9/1997 up to 31/8/1998 ie about one year. During the entire period evidently the complainant suffered intense pain and had also swelling on the affected part ie the left heel. The complainant underwent surgery under general anesthesia at least for 2 times. Affected portion was operated by Dr.Mohammed Sayed of the 2nd opposite party hospital on 30/9/1997. The 1st opposite party doctor operated on 23/9/1997 under general anesthesia and again on 18/10/1997 under general anesthesia. On 29/12/1997 as mentioned in the version the hypo trophic granulation was removed under sedation. He was inpatient for varying periods, as will be seen from Ext.P2 discharge cards. The dates of discharge in 2 of the cards are seen blurred. According to the complainant he was an inpatient altogether for 79 days and was regularly attending the OP for dressings etc. The IP treatment was in 3 stretches. He was in POP cast from 18/11/1997 to 25/12/1997. It is submitted that on a number of times X-ray was taken and on 14/10/1997 MRI scanning was done. There is no dispute that the history of piercing of the wooden splinter is mentioned in the very beginning. The complainant had referred to the 1st opposite party doctor, he being a specialist.
8. The case of the 1st opposite party doctor that he had advised the father of the complainant to take a 2nd opinion and that the father of the complainant was reluctant is strongly disputed by PW2, the father of the complainant. According to him every time he wanted the patient to be referred to some other doctor the 1st opposite party advised him that there is nothing to worry etc. In view of the prolonged treatment and rather continued discharge of sinus and the consequent intense pain it is unlikely that PW2 the father of the complainant insisted that the 1st opposite party doctor himself should treated the complainant. It has to be noted that the boy was aged only 9 years.
9. It was pointed out that immediately after examination by Dr.Sunny Pazhayattil (PW1) an X-ray was taken. He was admitted on 9/9/1998. An exploration surgery was done on 11/9/1998 and the wooden piece was removed from deep inside as noted in ext.P9 discharge summary of Mother Hospital. PW1 Dr.Sunny Pazhayatiil has testified that if the foreign body has pierced inside the bone, it cannot be possible always to retrieve it. He has stated that in the MRI scan report there is mention about a suspicious area and hence the doctor ought to have attempted to detect the foreign body by exploration. There will be fibrous tissue deposits and granulation around a place where there is a foreign body. The infection was on account of the retention of the foreign body. He has also stated the place where the foreign body is located can be found from the X-ray. He has further stated that any specialist doctor can locate the foreign body on examining the X-ray. He has stated that if the foreign body is of a very small size it would be difficult to locate it. He has stated that the X-ray showed sequestrum (dead bones). He has also stated that the X-ray taken at the 2nd opposite party hospital did not show the foreign body. MRI scan will further help to locate the foreign body. He has also stated that keeping open the wound will help the migration of the foreign body. He has also stated that the 1st opposite party has followed the standard procedure. He has also stated that in Ext.X1 case sheet of the Mother Hospital it is mentioned that a large piece of wood was found out although PW1 could not identify MO2. Which is about the size of a centimeter. According to PW2 the father of the complainant MO2 is the foreign body taken out after surgery by PW1. PW1 has further stated that all the complications resulted on account of the retention of the foreign body for a long time.
10. DW2 is the Radiologist who did the MRI scan and submitted Ext.P17 scan report. He has proved the same. In Ext.P17 it is mentioned that the study revealed gross chronic destructive changes in the antero superior calcaneum and posterior calcaneum with surrounding soft tissue signal intensity changes. It is further mentioned that no foreign body could be localised even though a suspicious area is noted in the medial aspect of the calcaneum and also in the posterior aspect of calcaneum but due to the history of operation this could be also post operative arte-facts. He has also stated that the wooden piece is non-radio-opaque.
11. DW3 is another orthopedic surgeon who was examined at the instance of the opposite parties. He has also stated that wooden pieces cannot be seen in the X-ray as it is non-radio-opaque. But he has stated that if the foreign body is retained for a month or more there will be secondary changes in the soft tissue or bone. He has stated that the 1st opposite party has followed the standard procedure. He has also stated that the X-ray can help to detect the foreign body. Even if in MRI scan also the foreign body could not be located a surgical exploration is done in the suspected area.
12. DW1 is the 1st opposite party doctor he has testified that he has followed the standard protocol and osteomylitis was confirmed. He did the exploration surgery more than once. He has admitted that it was stated by the patient that a wooden splinter had pierced the heel. He has also admitted that the suspicious area is noted in the MRI scan. He has admitted that there will be fibrous tissues formed at the place where foreign body is located. According to him the changes noted in the MRI scan can also be due to secondary infection after surgery. He has stated in the cross-examination that the X-ray taken at the Mother Hospital and X-ray taken at the 2nd opposite party hospital the angles were different. The angle in the X-ray taken at Mother Hospital was axial view, whereas x-ray taken at the 2nd opposite party hospital was only lateral view. He advised lateral angle as the discharge of sinus was at the medial side. He has also stated that he can locate the foreign body in the X-ray taken at the Mother hospital. It is the above admission of DW1 that has been stressed by the counsel for the respondent/complainant.
13. It was also stressed by the counsel for the complainant/respondent that PW1 Dr.Sunny Pazhayattil has stated that if the doctor could not locate the foreign body after explorative surgery he should have referred the patient to some other doctor. He has also added that it was why the patient was referred to him. We find that there is considerable delay in referring the patient to PW1. The patient ought not to have been retained for such a long period ie about one year. DW1 should have referred the patient to a higher centre. The 2nd opposite party hospital is located in a small town. The counsel for the respondent has also produced literature ie Pakistan Journal of Medical Sciences, Quarterly wherein in an article by certain doctors captioned Plain Radiography for Identification for Limb Foreign Bodies; How Successful Is It. The conclusion noted therein that two diagonal X-rays of the involved limb, with careful attention to the patient’s history are highly successful in identifying the location of soft tissue radio-opaque and non-radio-opaque foreign bodies located in limbs. Similar is the finding in the article in the above journal ie Pak-J-Med-Sci October and December 2008 part I volume 24 No.5. 657-659, down loaded from the internet. It is noted that the success rate in detecting the foreign body examining two diagonally positioned X-ray Rediographs is 89% for non radio-opeque objects. We find that the 1st opposite party being an expert ought to have bestowed his expertise more carefully. At least he should not have retained the patient for such a long period ie up to about one year and administered repeated surgery under general anesthesia, applied POP cast etc. Evidently the complainant has suffered a lot in his tender years. The case of the father of the complainant that he had even to dispose of his shop to raise funds to treat the complainant and that the complainant lost an academic year are also likely to be true. It has also to be observed that Ext.R1 case sheet kept at the 2nd opposite party hospital is seen recorded in a scratchy and shabby manner. The above also amounts to deficiency in service.
14. In the circumstances we find that there is deficiency in service on the part of the opposite parties. The rather lathargic attitude in not referring the patient to a higher centre on the part of the 1st opposite party amounts to negligence on his part. Hence there is no scope for interfering in the finding of the Forum.
15. All the same we find that the amount of compensation awarded appears overlapping in nature. Hence the above part of the order is modified as follows:
16. The opposite parties would be liable to pay a compensation of Rs.2.lakhs to the complainant. The opposite parties will also be liable to pay interest at 9% per annum from the date of complaint ie 22/6/1999. The opposite parties would also be liable to pay cost of rs.7500/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% per annum from the date this order ie 23-11-2010.
In the result the appeal is allowed in part as above.
Office will forward the LCR along with the copy of this order to the Forum urgently.
JUSTICE K.R. UDAYABHANU:PRESIDENT
VL.
