Date of Filing:02.06.2016 Date of Order:03.02.2022 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SHANTHINAGAR BANGALORE - 27. Dated: 03RD DAY OF FEBRUARY 2022 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Retd. Prl. District & Sessions Judge And PRESIDENT MRS.SHARAVATHI S.M., B.A., LL.B., MEMBER COMPLAINT NO.789/2016 COMPLAINANT : | | Seetharama Reddy, S/o.late.Rama Reddy, No.360, Sir M.Vishweshwaraiah Layout, 3rd Block, (Rep. by Adv. Sri.B.M.Govinda Reddy) | | | | | Vs | OPPOSITE PARTIES: | 1 | The Administrator, Fortis Hospitals, No.23, 80 Ft Road, Gurukrupa Layout, 2nd Stage, Nagarabavi, Bangalore 72. | | 2 | Dr.Kiran Kumar, Consultant Doctor, Fortis Hospital, No.23, 80ft Road, Gurukrupa Layout, 2nd Stage, Nagarabavi, Bangalore 72. (OPs are rep. by Adv. Sri.Rajeswara P.N.) |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in providing medical treatment by OPs and for damages of Rs.20 lakhs and also for medical expenses incurred by him on account of wrong medication and procedure adopted by OP2 during his stay with OP1 along with interest at 18% on the above for suffering mental agony, loss of earnings and for other reliefs as the Commission deems fit.
2. The brief facts of the complaint are that;
The complainant on 22.03.2016 at about 7 AM met with an accident Near Federal Bank, near Vishweshwaraiah Layout, Managandanahalli, Bangalore. Immediately he was taken to Abaya Hospital, Ullala, where OP2 was a consultant doctor. He advised him to get admitted in OP1 and afterwards he conducted an operation for the fracture of left tibia bone in the said accident on 23.03.2016, and assured that the same would cure within a period of 3 to 4 days. Believing and having faith in OP2, complainant agreed to undergo surgery and on 23.03.2016. The surgery was performed. There were some mistake by OP2 in the surgery and in following the procedure which caused infection to the said injury leading to pus and his health deteriorated. He underwent harassment both mentally and physically due to the negligent act of OP. There is misconduct on the part of OP2. Even OP2 informed that his left leg has to amputated due to the infection for which he was put under mental tension. After discussing with his family members he got discharged from OP1’s hospital. On the instruction of OP2, OP1 discharged him and he immediately went to St.Marthas Hospital, Bangalore, on the very day and got admitted as inpatient in the said hospital and the doctors at St.Marthas’s Hospital after taking x-ray and conducting other medical test, came to the conclusion that the operation conducted by OP2 is not proper and thatswhy the injuries are not curing. They have taken the video graph of the wound of the complainant. The treatment provided by OP2 was not suitable for the injury sustained. OP1 failed to take action against OP2 though it was requested by the complainant. There is whole medical negligence on the part of OP1 and 2 in treating the complainant. They have collected Rs.3,43,956/- for various treatment and hospital charges, besides collecting Rs.25,000/- towards non medical charges, which clearly shows that there is deficiency in service and lack of professionalism from OPs and they had to spent Rs.2,70,000/- in Martha’s hospital for further treatment due to deficiency in service. He issued a legal notice on 04.05.2016 to OPs. OPs have replied to the said notice stating that there is relationship of doctor and patient and service provider and the consumer, whereas denied all the allegations made against them. Even OPs threatened him of dire consequences in case he proceeds with the complaint. Since there is deficiency in service, cheating, misappropriation of funds of the complainant from the health insurance, OPs are jointly and severally liable to pay the compensation and hence the complaint.
3. Upon the service of notice, OP1 and 2 appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts and the same is filed on false, frivolous, vexatious and untenable grounds, liable to be dismissed with exemplary cost u/s 26 of the C.P. Act 1986. OP1 cannot be impleaded as a party as it is only an administrator, administrating the hospital management. It is admitted that on 23.03.2016, complainant underwent surgery for his fracture of the left leg tibia bone and dual plating was performed in OP1 hospital by OP2. The usual and general complications developed post surgery of dual plating procedure was the onset of compartment syndrome which is a known complication of fracture of tibia. Inspite of performing dual fasciotomy procedure by the second OP to treat the compartment syndrome, there was a need for performing split skin grafting procedure. OP2 in the beginning itself assessed the onset of compartment syndrome and given necessary treatment, based on the new culture report. OP2 was planning skin drafting procedure and suggested the same to the complainant and his relatives. However the complainant took a decision to get discharged from OP1 hospital to take treatment at St.Martha’s Hospital. OP2 facilitated the complainant at Martha’s hospital by speaking to the concerned consultant, orthopedician and explaining the situation of the complainant. Even after two days of discharge from OP1, he contacted the doctor at Martha’s hospital to know the health condition of the complainant. At 75 and 78 of the discharge summary of Martha’s Hospital the subsequent treatment of procedure done by the said hospital is wound debridement and split skin drafting which concurs the line of treatment proposed to be given by the OP2 and the same was mentioned in the discharge summary issued. It was the complainant decision to get himself discharged from OP1 and to get the treatment at Martha’s hospital.
4. OPs have denied the contention that the surgery was performed without obtaining the doctors opinion and also the approval of the complainant. No doctor would perform the surgery without obtaining the consent of the patient / relatives. The averments that after surgery OP2 and his subordinates, nurses and doctors have done the dressing of the wound goes to show that the proper care was taken in OP1’s hospital. The compartment syndrome is a known complication of the fracture of tibia and its surgery. OP2 has denied that he informed the complainant that his left leg has to be amputated due to the pus. He suggested the split skin grafting treatment for the complication of compartment syndrome which the same was done by the St.Martha’s hospital. It is out of purview of OP to discuss and comment on the treatment given by the St.Martha’s hospital. There is no negligence on their part in providing the treatment and performing the surgery on the complainant. No supporting materials have been provided to show the negligence or deficiency in service on the part of OPs. The amount collected from the complainant is towards the treatment given and towards the hospitalization charges, surgery, as per the fees structure prescribed by the hospital authorities. It is also denied that they advised complainant to have long time of rest after the treatment. Since OP2 is the consulting orthopedician of OP1, there was no need for him to obtain the suggestion of other doctors. The doctors at St.Martha’s hospital have given the same treatment, which OP2 wanted to give to the complainant had the complainant continued with OP1.
5. Since the complainant had insurance and had paid the hospital charges and bill through the insurance company, the complainant has not suffered monetarily and the hospital authorities in no way cheated or misappropriated the funds of the complainant. Complainant is not entitled for any of the reliefs prayed and also for the compensation and hence prayed the Commission to dismiss the complaint.
6. In order to prove the case, both parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-
1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?
2) Whether the complainant is entitled to the relief prayed for in the complaint?
7. Our answers to the above points are:-
POINT NO.1 AND 2 : In the Negative
For the following.
REASONS
8. POINT No.1:-
Perused the complaint, version, affidavit evidence and the documents produced by respective parties. It is not in dispute that the complainant met with an accident while driving his two wheeler and got fractured his left tibia bone for which he was first taken to Abaya Hospital, where OP2 was a consultant and later he got admitted to OP1 i.e., Fortis Hospital for further treatment, wherein he was operated and the duel plate and screw was fixed as per the protocol and even afterwards fasciotomy was also done for the compartment syndrome of left leg and debridement of necrotic tissue in left leg at Fortis Hospital.
9. It is the contention of the complainant that some mistake has been done by the doctor and thatswhy his wound was not healed up and he has to suffer 40% disability in his left leg.
10. It is to be noted here that the complainant has not stated clearly and distinctly as to what is the mistake committed by the treating doctor i.e., OP2.
11. Further the matter was referred to Medical council, wherein the complainant has given the evidence and has been cross examined. In the cross examination he has stated that he overheard the say of the doctor OP2, to his son and wife that his left leg has to be amputiated due to the formation of the pus. Whereas, he was not directly informed regarding the same. When this is taken into consideration, this is only a hearsay evidence, which has not been corroborated by supporting and convincing documents. Even his wife and son have not been examined before this commission to amplify the said information to them.
12. Further it is also not in dispute that the complainant after surgery was having compartment syndrome for which OP1 and 2 took proper care and provided the required treatment to release the pressure.
13. The medical documents have been produced. In the discharge summary produced clearly shows that the complainant was having bicondylar fracture tibia left knee – compartment syndrome, left leg, severe pain in the left knee since the accident unable to stand and move. X-ray of left knee shows that fracture left tibia condylar /fibula on physical examination he was moderately built and nourished, extremities left leg tenderness + swelling of upper 1/3 of the leg. The radiological report and operation notes produced shows that pre-operative diagnosis bicondylar fracture tibia left knee, surgery notes ORIF tibial condylar duel plating and screw fixation done under spinal /epidural on 23.03.2016, pre-operative diagnosis suspected compartment syndrome of left leg. Post operative diagnosis suspected compartment syndrome left leg. On 23.03.2016 duel incision fasciotomy done under LMA. On 28.03.2016 wound debridement left leg done under general anesthesia. On 30.03.2016 again wound debridement left leg done under general anesthesia, wound debridement + Glycerine MGS 04 dressing done on 01.04.2016. Post operative diagnosis, post fasciotomy wound left leg. Wound debridement left leg + wound approximate done under local anesthesia. Blood transfusion was done advised to soft skin grafting but the patient refused and discharged at his request with the following advise, to take medicines.
14. The complainant got discharged on his own and got admitted to St.Marthas Hospital on 11.04.2016. The said discharge summary, mentions that the patient came with a complaint of non healing surgical wound over left leg. No comorbid conditions, on examination left knee, healed operative scar over anterior knee medial lateral and postural fasciotomy wounds over left leg, medial wound necrotic debris with purulent discharge, lateral wound necrotic mussels with no active discharge. It was observed that loss of sensation over left foot below the level of ankle. No active dorsiflexion, no toe movement. Again the procedure performed there, wound debridement on 14.04.2016 and 21.04,2016. Post operative course patient started sensitive antibiotics and VAC dressing applied, discharge reduced in quantity and red granulation issue, present at the time of discharge, patient sent home with VAC dressing in SITU.
15. The doctor one Sri.Jayanth Kumar who treated the complainant at St.Marths’ hospital after the discharge from OP1’s hospital, has been examined by the complainant as his expert evidence in order to prove the mistake said to have been committed by OP2. In his deposition by filing affidavit in chief he has stated that on 11.04.2016 the patient got admitted and there was discharge from fasciotomy wound with necrotic tissue which was debrided without disturbing implant used for fracture fixation. The discharge and necrotic tissue sent for culture and sensitivity and treated with appropriate antibiotics till the wounds looked better. VAC dressing was applied and discharged on 27.04.2016 with a direction to periodic follow up.
16. Further patient was re-admitted on 04.05.2016 for minor debridement and on 10.05.2016 skin grafting was done by plastic surgeon. On 14.05.2016 he was discharged. He attended regular follow ups and the patient developed disability and the same was managed by physiotherapy and orthosis till the fracture consolidated and on 19.04.2017 the implants were removed and discharged on 22.04.2017 in a stable condition. He was advised to ware orthosis and ambulate with support with regular physiotherapy to strengthen foot and leg muscles. The disability has been assessed by the competent authority.
17. This witness has been cross examined by the counsel for OP1 and 2 wherein he has admitted that whatever the instruction given by the Fortis hospital at thet time of discharge from the said hospital we treated the complainant. OP1 has mentioned that there was compartment syndrome and hence they had opened the wound. He has also admitted that OP1 had recommended split skin grafting at a later stage and the same was performed in their hospital. He has also admitted that after performing surgery, complainant has obtained the disability certificate.
18. The disability certificate has been given by the director of empowerment of differently abled and senior citizens Bangalore, Government of Karnataka. There is no dispute in this regard.
19. The point for consideration to us is whether there is any deficiency or negligence on the part of OP2 in providing the treatment to the complainant and whether OP2 has not followed the protocol required for treatment of the complainant.
20. Though the complainant has cross examined PW2 through his counsel, nothing has been culled out to establish that there is deficiency in service or negligence on the part of OP2 in treating the complainant. It is in his evidence that he agreed for undergoing surgery whereas he was not told the after effects of the surgery. The said statement of the complainant cannot be believed as he has given consent for the operation and his wife and son were also present.
21. Further in respect of the treatment given by OP2 in respect of the fracture of tibia bone of the complaiannt’s left leg, complainant has not placed any materials to show to the commission that what was the alternate available to treat such a fracture and as to whether what is the negligent act on the part of OP2 in treating the complainant. Even the St.Martha’s hospital doctor has followed the same line of treatment which OP2 wanted to provide to the complainant had he continued in OP1’s hospital. He has denied that he did not take minimum standard of treatment while treating the complaint.
22. When all these facts and circumstances are taken into consideration, we are of the opinion that the complainant has failed to prove with cogent, supporting, convincing evidence of negligence of OP2 in treating the complainant. Though he has stated in the complaint that by mistake OP2 has treated, what mistake committed by OP2 has not been substantiated.
23. Counsel for complainant has relied on the following decision;
- I(2006) CPJ 16(NC)
- I(2008) CPJ 126
- III(2013) CPJ 20(NC)
- III(2012) CPJ 29(NC)
- IV(2010) CPJ 50(SC)
So also the counsel for OP has relied on the following decisions;
- Jacob Mathew v. State of Punjab and others (2005) 6 SCC 1 (Para No.49, Sl.No.3)
- Kusum Sharma & others v. Batra Hospital & Medical Research Centre & others
- Vinitha Ashok (Smt.) v.Lakshmi Hospital and others, (2001) 8 SCC 731 (Para No.28)
- Prayag Hospital and Research center Pvt. Ltd., and other vs.Vijay Pal 2016(6) ALD 1 (Para No.9)
24. Only the decision relied on by complainant is relevant for us to consider as the facts and circumstances of the said decision is almost similar to the facts and circumstance of this case. There the doctor did not provide treatment for compartment syndrome and further did not take suitable action of fasciotomy. Absolutely the said decision is not applicable to the facts and circumstances of this case as OP2 has taken all possible precautions and further provided suitable treatment to the complainant from the very beginning. Hence we find no deficiency on the part of OP1 and 2 in providing the treatment.
25. It is the fate of the complainant to suffer 40% disability as it is quite common that in the case of the fracture there will be shortening of the bone and also weakness in the muscles which results in disability. The disability suffered by the complainant though it is 40% as per the certificate issued by the Authorities Of Government of Karnataka, the same cannot be attributable to the treatment given by OP1 and 2. Hence we find absolutely no evidence in respect of negligently treating the complainant by OP1 and 2. Hence we answer point No.1 and2 in the negative and pass the following;
ORDER
- Complaint is dismissed. No cost.
- Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 03RD DAY OF FEBRUARY 2022)
MEMBER PRESIDENT
ANNEXURES
- Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri.Seetharama Reddy – PW1 |
Copies of Documents produced on behalf of Complainant/s:
Ex.P1: Disability Certificate
- Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Dr.Jayanth Kumar B.C. – PW2 |
Copies of Documents produced on behalf of Complainant/s:
Discharge summaries (Ex.P2, P3, and P4)
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri.Anand Angadi
Copies of Documents produced on behalf of Opposite Party/s
- Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-2: Sri.Dr.Kiran Kumar C.B.
Copies of Documents produced on behalf of Opposite Party/s
MEMBER PRESIDENT
HAV*