Date of Filing : 16.03.2011
Date of Order : 21.11.2011
BEFORE THE BANGALORE URBAN 4th ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
No. 8, Sahakara Bhavan, Cunningham Road, Bangalore – 560 052
Dated 21st NOVEMBER 2011
PRESENT
Sri. J.N. HAVANUR ….. PRESIDENT
Smt. ANITA SHIVAKUMAR ….. MEMBER
COMPLAINT NO. 533 / 2011
Sri. K. Karna,
S/o. Krishna, Aged about 31 years,
No. 29, Madhavaraya Mudaliar Road,
Frazer Town,
Bangalore – 560 005. ……. Complainant
V/s.
1. Hospital for Orthopaedics, Sports,
Medicine, Arthritis & Accident Trauma,
Rep. by its Registrar.
2. Dr. Thomas A. Chandy,
Major.
Ops 1 & 2 having address at:
No. 45, Magrath Road,
Off Richmond Road,
Bangalore – 560 025. …… Opposite Parties
ORDER
By Sri. J.N. HAVANUR, PRESIDENT
This Complaint is filed by the Complainant against Ops 1 & 2 u/s. 12 of the Consumer Protection Act, 1986 claiming compensation of Rs.12.00 Lakhs along with interest and cost for medical negligence. The brief facts of the Complaint can be stated as under:
Complainant is a professional Football player in ‘A’ Division. The Complainant played for a number of professional football clubs including the Students’ Union Football Club. During the period 1999-2000, the Complainant played for the Chennai Football Association as a member of the Food Corporation of India’s Football Club. Complainant’s registration and identity card number is 1929/2000. Subsequently, Complainant played for the prestigious Government Press Employees’ Football Club, Bangalore, and in this regard he was issued an experience certificate. Complainant desired to revert to the prestigious Food Corporation of India’s team in the year 2000 and since he was a registered player of the Dharmaraja Union Football Club, an interstate transfer form bearing No. 1161 dtd. 11.04.2000 was submitted to the Hon. Secretary, All India Football Federation. Complainant resumed as a member of the Food Corporation of India’s team. Most recently he played for the Students’ Union Football Club, Bangalore and in this regard the Bangalore District Football Association of Karnataka State Football Associations issued a Player’s Identify Card bearing No. 144 to the Complainant. The performance of the Complainant was widely appreciated in the sporting & football fraternity and was reported widely in the newspaper & journals. On 20.01.2008 while playing the match for the Students’ Union Football Club against the Bangalore Boys Football Club at the Tata Institute Sports ground, Complainant suffered an injury to his right knee. Being unable to play, the Complainant was admitted to OP1 Hospital where MRI Scan of his right knee was taken. Complainant had suffered a ligament tear at his right knee. After MRI report was given, OP1 informed him that corrective surgery was mandatory. The diagnosis was right knee anterior cruciate ligament tear and longitudinal medial meniscus tear. After making the financial arrangements, the Complainant was admitted to OP1 Hospital on 27.01.2008 and given in-patient No. 40517. Complainant was operated by OP2 at OP1 Hospital on 28.01.2008 where the interior cruciate ligament was reconstructed and partial medial meniscectomy of the right knee was performed by OP2. During medical procedure, OP2 scraped away the ligament tissue from the knee bone. Instead of only scraping away the ligament tissue from the knee bone, OP2 has negligently and without proper care scraped away the surface of the bone tissue also, which was not warranted. Complainant was discharged on 30.01.2008 with a direction from OP2 to return on 02.02.2008 for dressing of the surgical wound and again on 06.02.2008 for further dressing. At both these consultations, Complainant informed the OPs that he was experiencing great pain and discomfort, but his concerns were brushed aside by the OP2 stating that such pain and discomfort was common post-surgery. On 18.02.2008, Complainant again consulted OP2 and informed that instead of the surgery curing him, his condition had in fact worsened and he could not even walk. Once again his pain and discomfort were brushed aside by OP2. Complainant was referred to physiotherapy at OP1 Hospital. In all, Complainant has incurred expenditure of Rs.50,736/- for the cost of the surgery performed by the Ops. The Complainant’s condition worsened as days elapsed even though he was subjected to physiotherapy at OP1 Hospital under the supervision of OP2. Complainant found to his dismay and fear that he was unable to even walk short distances from one room to another, unaided on account of the severe pain in his right knee. Alarmed he consulted the Ambedkar Medical College Hospital, K.G. Halli, Bangalore, where the X-ray of his right knee was performed. He consulted Dr. Mani Venugopal, an Orthopaedic surgeon on 09.03.2010 & 15.03.2010 who advised further tests and prescribed medication. Further Complainant was examined at Sparsh Hospital for Accidents, Orthopaedics, Plastic & Maxillo Facial Surgery, a super-speciality Hospital for Orthopaedic ailments. To his shock, medical examination at Sparsh Hospital revealed that as a result of the scraping of the bone tissue, calcification of the bone tissue had occurred at the place of the original surgery performed by the Ops. This is evident from the out-patient record dtd. 17.07.2010. When the Complainant confronted the Ops with the diagnosis from Sparsh Hospital, Ops deliberately misled him to believe that such calcification was normal and he would be cured by further physiotherapy. Accordingly, he resumed physiotherapy at OP1 under the direct supervision of OP2 from 19.09.2010 until 30.09.2010. On 07.10.2010, upon the direction of OP2, Complainant once again had undergone MRI scan of his right knee joint at OP1 Hospital. He was examined by the consultant radiologist Dr. Kumar.V. who recorded that extra articular calcification is seen at the inferior pole of patella-harvest site of patellar tendon; calcification measures 12mm craniocaudally and 8mm transversely. On 02.11.2010, Complainant took second opinion from Dr. B.R. Ambedkar Medical College & Hospital, wherein X-ray of his right knee revealed that contrary to the assurances of the Ops, the problem had grown in magnitude and he was still in unbearable pain and was unable to walk. When he once again confronted the Ops with this finding and his continued pain and inability to use his right limb, they performed MRI scan and X-Ray free of cost and refusing to provide the scan reports he was merely instructed that he was fit and was cavalierly told by the OP2 that go play football again. On account of the rash, negligent & careless manner in which OP2 performed the surgery on 28.01.2008, he has now lost the use of his right limb and he is unable to lead a normal life. The calcification of knee at his right leg, means that, he is crippled for life even as he is of a tender age, on the cusp of a great sporting career. The negligence, inefficiency and deficient service of the Ops have crippled the Complainant for life. As Complainant is unable to play Football, he is no longer capable of earning his livelihood as his earnings come primarily from the match fees and prize winnings. On account of negligent, deficient & inefficient service of the Ops, his legitimate expectation of a secure government employment or employment with a large corporation have been terminated. Actions of Ops in misleading the Complainant when he confronted them with the diagnosis from Sparsh Hospital that he would be cured with further physiotherapy are unfair trade practice. As a result of the misleading advice and the physiotherapy that the Complainant endured, the Complainant was put to further physical and mental pain & agony and in addition he was obliged to pay the Ops for the physiotherapy sessions over a period of 3 weeks at great financial cost. Complainant has been put to great financial distress on account of inefficient, deficient & careless service of the Ops and he has been obliged to endure a botched-up surgery performed by OP2 and as a result of misleading medical advice he was obliged to spend a sum of Rs.2.00 Lakhs towards physiotherapy fees and further medical examinations. Ops have unjustly enriched themselves at the cost of the Complainant by directing the Complainant to endure weeks of physiotherapy and charging the Complainant for the same knowing that physiotherapy could not remedy the botched surgery performed by OP2. Complainant has been crippled at the young age of 29 years and he was on the cusp of a glorious career in professional football which was terminated by the inadequate, deficient and negligence of the Ops. Criminal negligence of the Ops has resulted in the Complainant being dependent on the charity of his family and friends. As the Complainant has no means of even eking out a living, he has been reduced to the level of a beggar in society. So, the Complainant has filed this Complaint praying to award Rs.12.00 Lakhs in all towards medical & other miscellaneous expenses, damages, mental agony suffered by the Complainant and Complainant prayed to award interest @ 18% P.A. on the said amount with costs.
2. After service of notice, Ops 1 & 2 have appeared through their Counsel and filed objection contending inter-alia as under:
Complaint is not maintainable either in Law or on facts. This Forum does not have jurisdiction to entertain the Complaint. Complainant came to the Hospital on 21.01.2008 with an alleged history of fall while playing Football on 20.01.2008 with complaints of pain & instability of right knee, history of giving way present, no history of locking episodes and pain increases on walking. On examination of the patient at the right knee, no effusion, Patella non-tender, Lachmans test positive, anterior drawers test positive, MC Murray negative. The patient was advised for MRI and the said MRI shows complete tear of ACL. The patient was advised for Arthroscopic ACL reconstruction. The patient visited the Hospital again on 23.01.2008 and after evaluation he was advised for surgery and the procedure was explained to him in detail. Accordingly, patient i.e., Complainant got admitted in the Hospital on 27.01.2008 and consent for surgery was taken. Blood was sent for investigation and the patient was shifted to OT on 28.01.2008 at 7.30 AM, underwent Anterior Cruciate ligament reconstruction and partial medial meniscectomy for right knee on 28.01.2008 and was discharged on 30.01.2008 with an advise to come for dressing on 02.02.2008 & 06.02.2008, to come for suture removal on 09.02.2008, 25% weight bearing till 04.02.2008, 50% weight bearing from 05.02.2008 to 11.02.2008, 75% weight bearing from 12.02.2008 to 18.02.2008, full weight bearing from 19.02.2008, active, active assisted, general passive range of movement exercises, quadriceps and hamstrings exercises in OPD from 02.02.2008. Complainant was asked to exercise to build up his muscles. On 08.01.2009, a year later again, there was no complaint of pain or restriction of activity. After one year & 8 months on 17.08.2009, for the first time he complained of pain. At no time in one year & 8 months did he have any complaint or restriction in activity or disability. On 07.10.2010 Ops discussed again with the patient and family and two friends who were asking what is calcification and it was explained that calcification is common natural phenomenon / event in any patient who is a non-veg and also explained that first MRI and physical examination is normal, full ROM, no disability (zero) KT 1000 4mm and 4mm both the knee. MRI extra articular calcification, explained that being extra articular means outside joint and would not give pain or affect flexion. His muscles are weak. Patient was examined on 07.10.2010 i.e., 2 years & 9 months after the surgery. Patient was doing well, all wounds healed well. Complainant never took physiotherapy treatment as suggested by the Ops. After the visit on 07.10.2010, patient never came back to HOSMAT Hospital and discharged himself from Ops’ care on this date and he has ignored the medical advice of physiotherapy and avoidance of non-veg. There was no deficiency of service or any negligence. Complainant was operated successfully and without any problem on discharge and he was issued a discharge summary stating that he was feeling better. He was advised orally and in writing vide discharge summary. In the meantime, patient consulted Dr. Mani Venugopal, Orthopaedic surgeon on 09.03.2010 and in his clinic notes he said range of movement (ROM) was full, ACL was fine, MC Murray Test was negative. Patient was advised physiotherapy and he saw the patient again on 15.03.2010 and advised a muscle relaxant. Patient was also seen by Dr. Sharon Patil at Sparsh Hospital on 07.07.2010 and gave him reassurance. Both Orthopaedic surgeons according to their records found no problem or disability and Dr. Mani Venugopal advised physiotherapy and Dr. Sharon Patil gave only reassurance that everything was OK. It is true that Complainant had suffered a ligament tear at his right knee. After detailed study, the Doctors took charge of the operation. Complainant was already informed about the condition, diagnosis and the procedure to be adopted in the operation. It is true that Complainant came to the Hospital on 21.01.2008 with an alleged history of fall while playing Football on 20.01.2008 with complaints of pain & instability of right knee, having suffered a ligament tear at his right knee. Rest of the contents of the paras of the Complaint is not within the knowledge of these Ops. Complainant is making false allegation in order to make wrongful gain from the Ops and hence he is put to strict proof of the same. It is emphatically denied that patient has suffered due to the treatment given by the Ops. In fact surgery was highly successful and he was under an efficient postoperative care. Complainant’s family was repeatedly informed of the current status of the treatment and the recommendations of consultants. Ops are not aware of any disability suffered by the Complainant. Ops tendered an adequate and highly specialized treatment to the Complainant and he was given the best, efficient service that is possible to the Complainant. Ops are nowhere negligent or deficient in service by any stretch of imagination. OP2 is a highly qualified & experienced Orthopaetic surgeon. OP2 is US based certified Orthopaedic Surgeon, he is fellow of American College of Surgeons, Fellow of American Academy of Orthopaedic Surgeons and Fellow International College of Surgeon. Complaint is barred by limitation. There is no cause of action by filing the Complaint. Hence, it is prayed to dismiss the Complaint with exemplary costs.
3. On the above pleadings of the parties, following points arise for our consideration:
(1) Whether the Complainant proves that OP2 has performed surgery on 28.01.2008 in a negligent & careless manner and on account of it he lost use of his right limb and he is unable to lead normal life and the negligent, inefficient & deficient service of Ops have crippled him for life?
(2) If so, how much amount complainant is entitled towards medical expenses & damages.
(3) What order ?
4. So as to prove the case, Complainant has filed his affidavit by way of evidence and got produced 23 documents with list dtd. 16.03.2011 and 24 documents with list dtd. 28.06.2011. On the other hand, OP2 has filed his affidavit by way of evidence and got produced one file containing hospital documents. Heard the arguments. We have gone through the oral & documentary evidence of both the parties meticulously.
5. Our answers to the above points are as under:
(1) Point No. 1 – Negative
(2) Point No. 2 – Negative
(3) Point No. 3 – As per final order
REASONS
6. Complainant has filed his affidavit by way of evidence. He has stated during the course of evidence that on account of rash, negligent & careless manner in which OP2 performed surgery on 28.01.2008, he has now lost use of his right limb and he is unable to lead normal life. Calcification of his right knee means that he is crippled for life even though he is young and had great sportive career ahead of him. The negligent, inefficient & deficient services of OPs have crippled him for life. So, he is entitled to claim Rs.2.00 Lakhs towards medical & other miscellaneous expenses and Rs.10.00 Lakhs towards damages & mental agony. So, Ops be directed to pay the said amount with interest @ 18% P.A. and costs. As against this, OP2 has deposed in his evidence that Complainant was operated successfully and without any problem on discharge and he was issued Discharge Summary and he was seen by Dr. Sharon Patil & Dr.Mani Venugopal who being an Orthopaedic surgeons and according to their records there is no problem or disability. There is no deficiency of service on his part and also on the part of his colleagues. On the other hand, Complainant has himself neglected their advice given to him and he is alone responsible for consequences resulting in the amputation of his right leg. The Complainant has filed this case with a malafide intention & ulterior motive. So, Complaint be dismissed. Complainant has reiterated in the Complaint at Para 15 and also in the evidence that the medical examination at Sparsh Hospital revealed that as a result of careless & negligent treatment by the Ops and as a result of the scraping of bone tissue, calcification of the bone tissue had occurred at the place of original surgery performed by the OP. At this juncture, we would like to have cursory glance at the documents of the Complainant to know as to whether on account of careless & negligent treatment of the Ops, Complainant is suffering and is crippled for life. Document Nos. 1 to 8 of the list dated 16.03.2011 of the Complainant are the player/s registration inter-state transfer form, certificate issued in the name of the Complainant and these documents disclosed that the Complainant is a Football player and he played in different places. Document No. 9 is the copy of MRI report of OP issued in the name of the Complainant wherein in the impression column it is stated that complete tear ACL and the date of MRI report is 21.01.2008. Document No. 10 of the Complainant is the copy of Discharge Summary issued by the OP in which it is stated that Complainant was admitted to OP1 Hospital on 27.01.2008 and underwent surgery on 28.01.2008 and discharged on 30.01.2008 after doing correction of the ligament tear of right knee of the Complainant. 11th document is the claim history of the Complainant and in that document it is stated that Complainant was admitted to OP1 Hospital on 27.01.2008 and discharged on 30.01.2008 and he was admitted to Hospital on account of pain in the knees diagnosed to have ACL tear & ACL reconstruction done and discharged in a stable condition. Next two documents are the claim settlement vouchers issued by Raksha TPA Pvt. Ltd. 15th document is copy of test requisition bill for Rs.150/- issued by Ambedkar Medical College Hospital. Next two documents are the prescriptions issued by Dr. Mani Venugopal. The said prescription documents go to reveal that ACL reconstruction was done 2 years back and he prescribed some medicines to the Complainant. In the said prescription, it is not stated that calcification of bone tissue had occurred as a result of scraping of bone tissue during operation done on 28.01.2008. Next 3 documents are the copies of Receipt & out-patient records of Sparsh Hospital. In the out-patient records issued by Sparsh Hospital, it is only stated as under:
“ACL reconstruction done 2 years ago, now has pain & discomfort in the knee, extra ossern growth over patella tendon, advice – reassurance”.
7. It is worthy to be noted from out-patient record of the Sparsh Hospital that nowhere it is stated that calcification of the bone tissue had occurred as a result of scraping of the bone. The said document issued by Sparsh Hospital is ominous silent on this aspect. Document No. 21 is the record issued by HOSMAT Hospital in respect of physiotherapy. Next document is MRI report dtd. 07.10.2010 issued by the OP1 Hospital wherein in the impression column it is stated that reconstructed ACL is in tact, extra articular calcification is seen at the inferior pole of patella, calcification measures 12mm craniocaudally & 8mm transversely. From the said document, it cannot be inferred that calcification has happened on account of ACL reconstruction by OP2 on 28.01.2008. Document No. 1 of Complainant’s list dtd. 28.06.2011 is MRI report of Complainant issued by OP on 21.01.2008 stating that complete tear of ACL & menisci are normal. 2nd document is discharge summary of OP and that document shows that Complainant was admitted on 27.01.2008 and discharged on 30.01.2008. 3rd document of the list is the claim history wherein in Doctor’s opinion column it is stated that admitted for complaint of pain in knees diagnosed to have ACL tear and ACL reconstruction done and discharged in a stable condition. Next documents are claim settlement vouchers and Receipts of Ops. Next document is Receipt for Rs.400/- issued by Sparsh Hospital towards registration and consultation charges. Next 4 documents of Complainant’s list are the prescription sheets issued by Dr. Mani Venugopal and out-patient records of Sparsh Hospital. I have already made discussions on these documents. Next document is out-patient slip issued by Boring & Lady Curzon Hospital, Bangalore. One Certificate issued by Boring & Lady Curzon Hospital is produced and in that Certificate Complainant has been advised to avoid squatting, sitting close legged & walking long distance. X-Ray film produced by the Complainant which was taken on 02.11.2010 shows that there is extra growth over right patella. One more Certificate issued by Boring & Lady Curzon Hospital dtd. 13.07.2011 is produced in which it is stated that the Complainant is having disability to an extent of 25% in respect of right knee. But unfortunately Complainant has not chosen to examine the Doctor who issued the said Certificate to prove the disability. In the absence of examination of Doctor who issued the Certificate, it is not justifiable to place total credibility on the said disability certificate issued by Boring & Lady Curzon Hospital. Ops have produced one file containing history documents and those documents are the same documents which were produced by the Complainant. So, we don’t want to make any discussion on the documents of the Ops. At this stage, the Learned Counsel for the Complainant has placed reliance on the following Authority.
III (2010) CPJ 1 (SC) – V. Kishan Rao V/s. Nikhil Super Speciality Hospital & Anr. - (iv) Evidence Act, 1872 – Sections 61, 64, 74, 75 – Medical Negligence – Wrong treatment – Negligence on part of respondent-opposite party No. 1 in giving wrong treatment to complainant-appellant’s wife, suffering from Malaria – District Forum rightly held that patient died due to ‘cardio respiratory arrest and Malaria as case records show wrong treatment for Typhoid was given to complainant’s wife – That there is clear admission on part of respondent No. 1 that patient was not treated for Malaria – District Forum rightly did not ask appellant to adduce expert evidence as complaints before Consumer Forum are tried summarily and Evidence Act does not apply – Both State Commission and National Commission fell into error by opining to the contrary – Expert opinion is required only in complicated cases as held in Dr. J.J. Merchant III (2002) CPJ 8 (SC) and where in its discretion, Consumer Fora feels it is required – Direction in D’Souza case I(2009) CPJ 32 (SC), for referring all cases of medical negligence to competent doctor specialized in field is contrary to principles laid down by Larger Bench of this Court on this point – Those directions are also contrary to avowed purposes of Act – If parties want to adduce expert evidence before Consumer Fora, members of Fora by applying their mind to facts and circumstances of case and materials on record can allow parties to adduce such evidence – This Court is constrained to set aside orders passed by State Commission and National Commission and restore order passed by District Fora - Respondent No. 1 is directed to pay appellant amount granted in his favour by District Fora i.e., sum of Rs.2 lacs as compensation and Rs.10,000/- costs.
8. We are in respectful agreement with the citation referred supra. If we make comparison of the present case on hand with that of decision cited above, we are of the opinion that the facts of the present case on hand and the facts & circumstances of the above decision are on a different footings. So, the said decision quoted by the Learned Counsel for the Complainant does not come to the aid of the Complainant. On making careful scrutiny of the said documents of the Complainant, it is made explicitly clear that the Complainant was operated on 28.01.2008 by OP2 and ligament tear of right knee was corrected and he was discharged on 30.01.2008 in a stable condition. After two years he went to Dr. Mani Venugopal and Sparsh Hospital and took treatment. But, the documents issued by Sparsh Hospital do not clearly show that calcification of the bone tissue had taken place as a result of scraping of bone tissue on 28.01.2008, so also the prescriptions issued by Dr. Mani Venugopal are lacking on this vital aspect. The documents issued by Dr. B.R. Ambedkar Medical College & Hospital and Boring Hospital do not throw any light on the crucial point of negligence of Ops while doing correction of the right ligament tear of the Complainant on 28.01.2008. The oral testimony of the Complainant to the effect that the negligence, inefficiency & deficiency of service of the Ops have crippled his life is not corroborated satisfactorily by convincing documentary evidence. Complainant who comes to this Forum seeking relief has become unsuccessful in proving this point by placing clear, cogent & consistent material evidence and thereby we are of the considered opinion that Complainant has miserably failed to prove this point satisfactorily. Accordingly, we answer this point in negative.
9. In view of the negative finding on Point No. 1, Complainant is not entitled to any amount towards damages and medical expenses as prayed in the Complaint. In the result, for the foregoing reasons, we proceed to pass the following:
ORDER
Complaint of the Complainant is dismissed. Parties to bear their own costs.
Both parties are given free copies of the order.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Forum on this the 21st day of November 2011.
MEMBER PRESIDENT
SSS
