BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

BANGALORE (ADDL. BENCH)

DATED THIS THE 24^th DAY OF MAY 2023

PRESENT

MR. RAVISHANKAR                           : JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI :      MEMBER

CONSUMER COMPLAINT NO. 210/2013

V/S

O R D E R

BY MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER

1.      This is a complaint filed by the complainant alleging deficiency in service on the part of the Opposite Parties and prayed to direct the Opposite Parties to pay a sum of Rs.2,60,000/- towards medical treatment and travelling expenses, a sum of Rs.45,00,000/- towards compensation for deficiency in service, a sum of Rs.1,35,000/- incurred by the complainant in Jain Hospital and a sum of Rs.1,00,000/- as costs of litigation.

 2.     The brief facts of the complaint is hereunder;

It is the case of the complainant that it is submitted that the Complainant on 25/09/2012 consulted the Opposite Party No.2 with a complaint that he was suffering from illness, swelling and pain in tibia/thigh region and he was not able to lift his right leg.  The Opposite Party No.2 after examining the Complainant advised him to get admit to his hospital immediately and also prescribed some medicines and tests to be done.  Accordingly, the Complainant had taken the prescribed medicines and undergone all the tests as prescribed by the Opposite Party No.2  It is further submitted that subsequent to the entire test conducted by the Opposite Party No.2, he further advised the Complainant to undergo an Operations such as a) Drainage of P.A. Abscen, b) Dilatation of Right CIA Stent migration, c) Retrieval of stent through left CFA d) Catheter drainage of collection etc., and to go for insertion of a stunt as there is blockage in the vein.  It is further submitted that the Opposite Party No.2 assured to the Complainant that if the Complainant undergoes the advised operations he can lead his normal life. 

3.      On 01/10/2012 the Complainant was admitted as in-patient in KLE’s Hospital for undergoing Operation.  Subsequently, on admission and allocation of the Ward, blood and urine samples of the Complainant were collected for various tests and diagnosis by the nurses of the Opposite Parties Hospital to determine and provide a prognosis of the Complainant’s medical condition. Meanwhile, the Complainant was administered with drips, however, Opposite Party No.2 has not taken any steps to conduct the Operation.  The Opposite Party No.2 did not even bother to assign any reason for delay in conducting the operation.  The Opposite Party No.2 rarely visited ward where the Complainant was admitted to know his condition.  However Opposite Party Nos. 2 & 3 made the Complainant to undergo some more tests and diagnosis and prescribed medicines from time to time.

4.      It is further submitted that on 16.10.2012, the Opposite Party Nos. 2 & 3 visited the ward where the Complainant was inpatient and informed the Complainant that the Operation will be conducted at KIMS Hospital instead of KLE Hospital without assigning any reason.  The Complainant agreed for the same without further delay as he had total faith on Opposite Party Nos. 2 & 3.  The Complainant was shifted to KIMS Hospital and Opposite Party Nos. 2 & 3 conducted the operation on 16/10/2012 during the course of the operation, the Complainant started bleeding heavily at that time and these two doctors immediately again got shifted the Complainant back to KLE Hospital through an ambulance without putting stitches on the operated area by putting cotton an Goss by holding tightly by the nurse.  It is submitted that after shifting back, the Opposite Party Nos. 2 & 3 took the complainant to the Operation theatre at KLE Hospital and were successful in stopping the continued bleeding.

5.     It is submitted that on the advice of the Opposite Party Nos. 2 & 3, the Complainant was discharged from the hospital on 26/10/2012.  OP2 and OP3 also suggested the complainant to take the follow up treatment as advised by them regularly without fail.  The Complainant was admitted to Opposite Party No.1 Hospital on 01.10.2012 and discharged on 26.10.2012 and the Complainant had incurred lakhs of rupees in getting the said operation from Opposite Party Nos. 2 & 3.  It is submitted that after getting discharged from the KLE Hospital, the Complainant started experiencing severe pain in his leg as much before the operation and as well as in the abdomen region where the operation was conducted by Opposite Party Nos. 2 & 3.  It is submitted that Opposite Party Nos. 2 & 3 started giving negligent answers when the complainant visited them for follow-up treatment and were pacifying him that will persist till the wound in the operated area dries up.  The Complainant started getting more pain in the area where he got operated and pain persisted in his leg and got increased day by day.  As the Complainant has not got any relief from the said operation but instead aggravated the pain and complicated the problem, the Complainant on the advice of his friends to have the second opinion about his operation and persisting pain day by day, was further advised to consult the doctors of Bhagawan Mahaveer Jain Hospital at Bangalore immediately.

6.      Upon the consultation of the doctors at Jain Hospital, Bangalore on 16.11.2012, the Hospital advised the Complainant to go for scan and various tests to clear his doubts.  After going through the tests and scans as advised, the Complainant was shocked to hear from the Doctors of the Jain Hospital that as per their observations/findings that there is an “ irregular collection 2.8x1.2 cm noted in the left inguinal region, with a small hematorma noted adjacent to the collection,  Foreign body measuring 3.5 cms in length (gauze) noted in the left para-vesical region under the left rectus muscle and also noted that there is a left enlarged inguinal nodes detected’’ with an impression note that there is a foreign body left para vesical region as described and advised to undergo immediate operation. The operation is conducted at Jain hospital on 23/11/2012 which was to be done only on gross negligence on the part of immature acts of the Opposite Party Nos. 2 & 3 only. It is further submitted that the doctors at the Jain Hospital advised that the pain in the right leg of the Complainant can be cured through medicines and there is no need to undergo any more operation.

7.      The Complainant and his family members have spent much less than many lakhs of rupees in bringing back the Complainant to his normal conditions due to negligent act of the Opposite parties, which should punished/compensated adequately.  It is submitted that considering the ill treatment and unprofessional ethics of the Opposite Parties meted out and failure to conduct the operation properly and to provide appropriate medical treatment amounts to gross negligence on the part of the Opposite Party Nos. 2 & 3.  Due to the negligent acts committed by the Opposite Parties, the Complainant had to suffer immense mental agony and pain, which cannot be compensated in terms of money.  All the Opposite Parties are jointly and severally liable to compensate the Complainant for the negligence and deficiency in rendering service on their part.  It is submitted that the Complainant was constrained to cause Legal notice dated 30.07.2013 by the Complainant due to the negligence and deficiency of the Opposite Parties.  The same has been served on the Opposite Parties on 01.08.2013, in response, the Opposite Parties got replied through their counsel sent a vague reply notice dated 11.09.2013 denying all the averments made in the Legal Notice sent by the Complainant.

8.      After service of notice, the Opposite Parties appeared through counsel and filed version.  The Opposite Party Nos.1 in the version contended that the Opposite Party No.1 is not a proper and necessary party to the complainant as the Opposite Party No.1 Hospital has neither treated the Complainant nor in any way involved in the handling of the Complainant’s case.  No documents are produced by the Complainant to show that the Complainant took treatment in any Hospital in Belgaum.  There are no allegations as against the Opposite Party No.1 in the entire complaint.  The allegations in paragraph 4 are false.  Opposite Party No.1 has not employed Opposite Party Nos. 2 & 3 as it is Doctors and therefore, the entire complaint as against this Opposite Party has to fail.

9.      The Opposite Party Nos. 2 & 3 contended that the Opposite Party No.2 is a qualified Cardiologist and most appropriate Specialist to treat the blocks of the right common iliac artery by intervention.  The Opposite Party No.3 is a qualified Cardio-Thoracic and Vascular surgeon and the appropriate person to operatively retrieve migrated stents.  He was diagnosed to be suffering from peripheral vascular disease with significant block of right common iliac artery and mild block of left common iliac artery (lower part of abdomen – inra abdominal). He also had diffuse disease of distant right anterior tibial artery in the leg on the right side.  He was thus advised to undergo stenting with angioplasty (recanalization of blood vessel by balloon dilation) of the right common iliac artery.

10.    After admission on 02/10/2012, the patient started complaining pain in the rectal region for which he was referred to General Surgeon, Dr.Ramesh Hosmani, who saw him and advised ultra-sound.  Ultra-sound report on 04/10/2012 (page 23) revealed collection in the posterior perianal region suggestive of the perinal abcess.  As it was an abscess, its treatment was given more priority over stenting.  On 05/10/2012, Dr. Ramesh Hosmani performed incision and drainage of the abscess, and advised for daily dressing and drainage of abscess in the Perianal area with packing of wound by gauze.  Appropriate and necessary drugs/ medicines were given according to the needs of the patient.  After a gap of 11 days, on 16/10/2012, when infection in the perianal region subsided the Complainant was shifted to KMIS, for angioplasty and stenting of the right common iliac artery.  It is therefore submitted that right common iliac balloon angioplasty (dilatation) was successfully done in KMIS.  Angiography showed that blood was flowing and there was improvement in the blood flow in right side common iliac artery.  His distal arterial pulse was felt.  Even though stent was not placed, the balloon dilatation achieved the required purpose of stenting.

11.    Further, there was no unusual or heavy or significant bleeding after angioplasty in KIMS.  Clinical findings and notes do not suggest heavy bleeding.  Pressure was applied by hand after the procedure for a period of 15-30 minutes, which is routine and mandatory.  After this, the manual pressure is removed and pressure bandage is applied.  However, in the case of the Complainant pressure bandage was not applied, as he was taken up for operation for removal of slipped stent.  It is submitted that for the stenting procedure no open wound is made and therefore question of heavy bleeding and its control does not arise at all.  As KIMS did not have the supportive facility and back up on emergency basis to take up the removal of the stent surgically the Complainant was shifted to KLE ICU Hubli in an ambulance for retrieval of the migrated stent from the left common femoral artery and the stent has been safely removed.  The CT scan of the abdomen and pelvis was taken on 22/10/2012 that is after the procedure conducted on 16/10/2012.  The CT scan does not disclose the presence of foreign body to be left at the operated site.

12.    The Complainant had an abscess in the lower abdominal wall as is evident from the CT Scan dt.22/10/2012.  Abscess was detected intra-Abdominally in the subcapsular region of the spleen as well.  The abscess of the lower abdominal wall was treated radiologically and a catheter was placed to drain out the pus.  The opening made to place the catheter was widened to allow the collection of pus to come out completely.  It was packed with gauze to prevent closure of the wound and facilitate drainage of collection, to collect and allow healing to occur naturally over a period of time by granulation.  The opening was thus not closed by sutures.  The operating Doctors have not cut open the complete depth of the abdominal wall in its lower part on the left side.  Therefore question of leaving any foreign body inside the abdominal cavity does not arise.  The Complainant was discharged on 26/10/2012 in a stable condition at his request as he wanted to go home.  He was advised follow-up treatment after 2 days and 8 days.

13.    Further, the Complainant did not come back to the Opposite Parties after his discharge for reasons best known to him.  He was next admitted to Mahaveer Jain Hospital on 21/11/2012 after undergoing certain tests from 16/11/2012 onwards, which is the next documented follow-up record.  What happened between 26/10/2012 and 16/11/2012 is not explained by the Complainant anywhere in the Complaint.  His silence is very material.  The Complainant never met the Opposite Parties or communicated with them any time after 26/10/2012.  It is only after the receipt of the legal notice from the Complainant’s Advocate that they heard of the Complainant after 26/10/2012.  The documents at Annexures-F, F1 to F5 are the Mahaveer Jain Hospital does not establish that the gauze was found in the body of the Complainant because of the negligence on the part of Opposite Parties.  There is no mention in the Discharge summary that there is any residual effect of removed foreign body at the site where it was present. 

        14.    The complainant has filed affidavit evidence and marked documents at Ex.C1 to C25.  The Opposite Party Nos. 2 & 3 filed affidavit evidence, but, not marked any documents.  The Opposite Party No.1 has not filed affidavit evidence and also not marked the documents.  Both parties have not submitted the arguments from long time, hence, posted for orders.

15.    On perusal, the following points will arise for our consideration;

(i)       Whether the complainant has proved the alleged medical negligence on the part of the Opposite Parties?

(ii)      Whether the complainant is entitled for any reliefs as sough?

            (iii)     What order?

          16.    The findings to the above points are;

                   (i)       Negative

                   (ii)      Negative

                   (iii)     As per final order

REASONS

17.    Perused the contents of the complaint, objections of the Opposite Parties, documents and affidavit evidence of both parties, we noticed that the Opposite Party No.1 is not a proper and necessary party to the complaint as the Opposite Party No.1 hospital has neither treated the complainant nor involved in handling of the case of the complainant.  Moreover, there is no document is produced by the complainant to show that the complainant took treatment in the KLE Hospital, Belgaum.  The complainant has taken treatment at KLE ICU, Hubli.  Hence, the complaint against the Opposite Party No.1 is not maintainable.

18.    Further, the Opposite Party Nos. 2 & 3 admitted that the complainant has came to Opposite Party No.2 with complaint of pain in right leg while walking and he advised to undergo Doppler test dt.25.09.2012 and C.T. angiography in lower limbs dt.01.10.2012.  Further, the Opposite Party No.3 has admitted that on 01.10.2012 the complainant was admitted at KLE ICU, Hubli as per the advice of Opposite Party No.2 and as per the opinion of Opposite Party No.3 vascular surgeon.  It is also an admitted fact that after admission certain tests and scans were made by the doctors.  The Opposite Party Nos. 2 & 3 further contended that on 02.10.2012, the complainant started complaining pain in the rectal region for which referred to General Surgeon Dr.Ramesh Hosamani and he referred for ultrasound.  The Ultra-sound report revealed that the collection in the posterior perianal region suggestive of the perianal abscess.  Further contended that on 05.10.2012, Dr. Ramesh Hosmani performed incision and drainage of the abscess and advised for daily dressing and drainage of abscess in the perianal area with packing of wound by gauze and medicines were given.  The allegations of the complainant are that while operating the complainant in KLE ICU, Hubli, the Opposite Party Nos. 2 & 3 had left foreign body in the body/wound of the complainant.  On account of negligence on the part of the Opposite Party Nos. 2 & 3, the complainant suffered complications and for the same the complainant had placed in ICU for 8 days in Jain Hospital, Bangalore for removal of the foreign body left in the body/wound of the complainant.  Hence, the complainant suffered mental agony and pain.

19.    On perusal of the documents, we noticed that the complainant has admitted in KLE ICU, Hubli with complaint of pain in right leg while walking on 01.12.2012 and on the direction of the Opposite Party Nos. 2 & 3, the complainant has made certain tests and scans which is admitted by the Opposite Party Nos. 2 & 3.  The complainant diagnosed to be suffering from peripheral vascular disease with significant block of right common iliac artery and mild block of left common iliac artery (lower part of abdomen – intra abdominal) as Annexure-C and advised to undergo stenting with angioplasty to right common iliac artery.  After admission, when the complainant started complaining pain in the rectal region for which he referred to General Surgeon Dr. Ramesh Hosmani who advised ultrasound which revealed collection in posterior perianal region suggestive of the perianal abscess.  Susequently on 05.10.2012 Dr. Ramesh Hosmani performed incision and drainage of the abscess and advised for daily dressing and drainage of abscess in the perianal area with packing of wound by gauze and also drugs were given.  When infection in the perianal region subsided the complainant was shifted to KIMS, Hubli for angioplasty and stenting of the right common iliac artery. 

20.    On 16.10.2012 angioplasty was done with due procedure successfully.  It is not in dispute.  Commonly in angioplasty fresh bandage is applied, however, in the case of complaint pressure bandage is not applied as he has taken up for removal of the slipped stent and has shifted to KLE Hospital, Hubli for operative of removal of slipped stent and after angioplasty CT scan of abdomen and pelvis was done on 22.10.2012 which disclosed that still abscess is present beneath the abdominal wall.  Subsequently it was treated radiologically and a catheter was placed to drain out the pus and it was packed with gauze to prevent closure of the wound and facilitated drainage on collection.  In this procedure the doctors have not cut open the complete depth of abdominal wall in its lower part of the left side.  Abscess was caused by an infection with bacteria it is packed up pus which needs draining.  As per Annexure-E, the Opposite Party Nos. 2 & 3 conducted operations such as

(i)       Drainage of P.A. Abscen

(ii)      Dilatation of Right CIA stent migration

(iii)     Retrieval of stent through left CFA

(iv)     Catheter drainage of collection

21.    In the present case, the Opposite Party Nos. 2 & 3 cuts into the abscess to allow the pus drain out and after drainage packed with gauze which as per law of due procedure.  However, after abscess I & D, recovery will depend upon the infection.  A dressing change will be necessary from a few days to a week.  It is also necessary to check wound everyday for any signs of infection is getting more. The wound packed by the doctors to abscess removing pus/exudates, hence, after abscess I & O procedure follow up is very much required.  If the gauze packing was put in the wound and it should be removed as directed by the doctors within a week during follow-up treatment.  In the present case, the complainant had discharged on 26.10.2012 in stable condition and advised follow-up treatment after two days and eight days.  However, the complainant has not visited the KLE ICU Hospital, Hubli and the Opposite Party Nos. 2 & 3 for follow-up.  It is negligence on the part of the complainant himself.

22.    The complainant further alleged that he has not get relief from operation made by the Opposite Party Nos. 2 & 3 and again he was admitted in Jain Hospital, Bangalore on 16.11.2012.  Again the tests and scans also done there and as per report, there was irregular collection in the left inguinal region and also found foreign body measuring 3.5 cms in length (gauze) in the left para-vescial region under the left rectus muscle.  The doctors of Jain Hospital removed the gauze and advised no need to undergo further operation and pain can be cured through medicine only.

23.    On perusal of the documents of the Jain Hospital, we noticed that admittedly the complainant has taken treatment in Jain Hospital, Bangalore and they found foreign body (gauze) in left para-vescial region under the left rectus muscle.  However, we do not find any nexus between the treatment taken by the complainant in KLE Hospital by Opposite Party Nos. 2 & 3 and foreign body was found in the left para-vescial region under the left rectus muscle in the Jain Hospital, Bangalore.  Moreover the complainant has not visited KLE Hospital, Hubli and Opposite Party Nos. 2 & 3 after his discharge and admitted in Jain Hospital on 16.11.2012 after a lapse of 21 days.  There is no explanation or documents produced by the complainant that what happened between this period.  Moreover, as per the history of the complainant, the complainant has type-2 diabetes, hypertension and IHD and also the complainant was a chronic smoker.  Hence, might be in his house after discharge the complainant was not taken care properly and infection was spread.  After abscess I & D the complainant has never visited Opposite Party Nos. 1 to 3 for follow-up treatment.  In all operations done in KLE Hospital, it s not necessary to Opposite Party Nos. 2 & 3 doctors to cut open the complete depth of abdominal wall in the complainant’s lower part on the left side.  If there is no deep wound, question of leaving gauze (foreign body) in the abdominal cavity does not arise and also there is no any document produced by the complainant to show that due to gauze he suffered pain.  Moreover, the Jain Hospital does not reveal any effect of the gauze at the place where it was diagnosed.  There is no nexus between the treatment taken by the complainant in KLE Hospital, Hubli and gauze found in the left rectus muscle in complainant’s body/wound.  Hence, considering the facts and discussion made here, we are of the opinion that the negligence cannot be attributed by the doctors and the complainant has failed to prove the negligence on the part of the Opposite Party Nos. 2 & 3.  Hence, the following;

ORDER

The complaint is dismissed.

Forward free copies to both the parties. 

       Sd/-                                                            Sd/-

MEMBER                                           JUDICIAL MEMBER

KCS*