D.o.F:29/7/2005
D.o.O:31/52/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO. 118/2005
Dated this, the 31st day of May 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Abdul Majeed,S/o Late Abdullakunhi,
Moolayadukkam House, Peradala PO, : Complainant
Neerchal , Kasaragod.
(Adv. Subhash Bozz,Kasaragod)
1. Mallya City Hospital
Near L.M.L General Motores,
Ashwini Nagar, Kasaragod.
2. Dr.Suresh Mallya
Mallya City Hospital : Opposite parties
Near L.M.L General Motores,
Ashwini Nagar, Kasaragod.
(Adv. M.Mahesh Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The case of complainant is as follows:
On 30/7/2003 complainant received personal injuries while he was driving the autorikshaw bearing reg.No. KL 14/C 5359 . After the accident he was taken to Ist opposite party on the same date. Complainant sustained contaminated compound fracture ad dislocation of ankle due to the accident. He was subjected to a surgery by 2nd opposite party on the same day at about 5 p.m. After the surgery complainant was treated as IP in Ist opposite party hospital under the supervision of 2nd opposite party till 3/9/2003 . Since the wounds of operation was not healing, plastic surgery was conducted by a visiting plastic surgeon Dr. Leo Theobald Menezes. The plastic surgeon advised the complainant to undergo daily dressing twice till the complete cure of wound and pain. Instead of dressing the wounds twice in a day 2nd opposite party discharged the complainant after putting POP cast on his right ankle. At the time of discharge on 3/9/2003 the ankle joint of the complainant was slugging and no steel rod was implanted from Ist opposite party hospital. After two days the flesh of the right ankle began to decompose. The complainant rushed to Ist opposite party on 5/9/03. On that day 2nd opposite party removed POP cast and the suturing were seen broken and the flesh were the POP cast was done was in a decomposed condition and pungent small was emerging from the wounds. After dressing the wound the right ankle was again put under POP cast and discharged on the same day. After discharge on 5/9/2003 the condition become worst and foul smell and decomposition of flesh were continued and the complainant felt intolerable pain from the wounds. Again on 8/9/2003 the complainant was admitted in Ist opposite party hospital. On that day also 2nd opposite party removed POP cast and after cleaning the wound POP was again done and advised the complainant to come after 15 days to remove POP cast. But the condition became very worst and the complainant suffered great deal of pain and the flesh decomposition also continued. The complainant again admitted in Ist opposite party hospital on 12/9/03. On that day also after removing POP cast new POP was done on the right ankle. On 14/9/03 complainant against visited 2nd opposite party and the same is repeated. On 18/9/03 also complainant visited 2nd opposite party and on that occasion also 2nd opposite party assured that things will be better and discharged after putting POP. When the POP was removed on 18/9/03 it is seen that almost all flesh in and around right ankle was decomposed and the ankle born were seen black. Thereafter the things became worst day by day and complainant was totally bed ridden and his right leg becomes unable even to lift due to unbearable pain. Complainant again consulted 2nd opposite party on 22/9/03 and that time 2nd opposite party referred him to Colaco hospital Mangalore. The complainant admitted there till 6/10/03. Thereafter also he is continuing the treatment from Colaco hospital. Complainant undergone surgeries and steel rod implanted on his right ankle and he was again subjected to plastic surgery. Complainant spent more than ` 3,00,000/- for his treatment. Now he is completely bed ridden and totally disabled. He could not move a single step without the help of others. Without proper diagnosis 2nd opposite party treated the complainant that became fatal and entire life of the complainant is spoiled due to his negligent treatment. 2nd opposite party floating the medical advice of Dr. Leo Theobald Menezes discharged the complainant after putting POP cast. The act of opposite parties is a clear case of medical negligence and it is against medical ethics. Complainant caused a registered notice through his counsel to opposite parties on 15/3/2005. Even though opposite parties have received the notice no reply is sent. Therefore the complaint claiming compensation of ` 300000/- with cost of proceedings.
2. Opposite parties 1&2 filed version jointly. According to opposite parties the injuries sustained were severe and bad and the foot portion was hanging out from the ankle. There was fracture with dislocation of the ankle with skin loss. Clinically, the complainant was a case of chronic insulin dependent diabetic patient with visual disturbance, peripheral neuropathy and also chronic migraine on medication. He was also a chronic smoker. In such situation complications like repeated infection which may be resistant to antibiotics delayed union, non-union, articular cartilage damage with early osteoarthritis stiffness of the joints, scar tissue formation, oedema on prolonged standing and hard work are medically accepted complications. These were explained to the patient and the relatives right in the beginning. By being fully conversant with this factual situation, the complainant as well as the bystanders gives a high risk written informed consent for the procedure of debridement reduction and K-wire fixation. Immediately after the complainant was brought to the casualty of Ist opposite party hospital expeditious wound management and treatment were started with utmost care and caution. Immediate X- ray and blood investigations were done. Under all aseptic care and precaution thorough wash and debridement of the wound and reduction of the ankle dislocation was achieved. K-wire fixation for the medical malleolar fracture was done under anesthesia. Wound culture and sensitivity was done. Check X-ray was taken on the OT table and being satisfied with the fixation, POP slab was applied. As the severity of the injury was very high and with pre existing complicating medical conditions, relevant photographs exhibiting the condition and stages of its progress were taken for clinical interest and academic purpose. Diabetic management was done by Dr.P.P.Rao, Physician. The complainant was given standard treatment by regular dressing, supportive care and blood transfusion etc with change of antibiotics according to culture sensitivity. Once the wound was relatively better, a raw area with the bone exposed over the medical aspect of the ankle was present. 2nd opinion with another orthopedic surgeon Dr.Jalaluddin MS, Ortho, Unity Health complex, Mangalore was taken regarding further management. By consensus, a flap surgery by a plastic surgeon for the raw area with exposed bone of the ankle was planned. The condition and further management by plastic surgery were explained to the patient and relatives. Consent for the same was also taken. On 24/8/2003 Dorsalis pedis vacularised full thickness skin flap from the same limb was raised and the raw area covered with it. The procedure was done by plastic surgeon Dr.Leo Theobald Menezes, Coloco Hospital,Mangalore with the assistance of the second opposite party and POP slab was applied for support. The complainant was continued on appropriate antibiotic, analgesic and insulin according to his sugar level Regular dressing, supportive care and blood transfusion was also given. On 3/9/03, when the wound was clean, the complainant was discharged from the hospital and also advised to come regularly for follow up and to control the diabetes in consultation with a physician. But he was not serious enough in following regular monitoring of sugar for insulin dosage, with physician. The complainant had followed up with the 2nd opposite party on three occasions after discharge. After about 10 days when the complainant visited the 2nd opposite party there was no further active orthopedic management at that point of time and as a matter of abundant caution, the complainant was referred to Dr.Leo Theobald Menezes, Plastic Surgeon, who had done the surgery, for further follow up to Coloco hospital,Managlore. Following that the complainant had never turned up again to the Ist opposite party and was lost to further follow up. The averments contrary to the above made in the complaint are denied by opposite party and according to them there is no deficiency in service on the part of opposite parties.
3. Complainant filed proof affidavit as PW1 in support of his claim. Exts.A1 to A24 marked through complainant. Complainant cross examined by the counsel for opposite parties. For opposite parties 2nd opposite party filed affidavit as DW1 and Exts.B1 to B5 (a) marked through him. Dr.Leo Theobald Menezes of Fr.Mullers Hospital is examined as DW2 and Dr.Ramachandran Kamath Asst.Professor, KMC Mangalore examined as DW3. Both sides heard and the documents carefully perused.
4. The points for consideration are:
1. Whether the non examination of an expert doctor by the complainant is fatal to the case of the complainant?
2. Whether there is any deficiency in service on the part of the opposite parties?
3. What order as to relief costs?
5. Point No.1: The learned counsel for opposite parties Sri.Mahesh relying on the decisions of National Consumer Disputes Redressal Commission in the case of Dr.N.T.Subramanyan & Anr. Vs. Dr.B.Krishna Rao & Anr reported in 1996(2) CPR 247 and in the case of Yasmin Sulthana &Anr.vs.Dr.Rupaben D Patel & Anr. of Gujarat state Commission reported in 1994 (1) 407 has that contended in the absence of expert medical evidence, it cannot be established that there is a case of medical negligence. In our view this argument is liable to be rejected. The law on this subject is very clear. The question whether expert medical evidence is necessary or not has been directly addressed by the Hon’ble Supreme Court in V.Krishna Rao vs. Nikhil Super Specialty Hospital in the judgment reported in 2010 CTJ 868(SC)(CP). In that case the court has held
“In the opinion of this court, before forming an opinion that expert evidence is necessary, the Fora under the Act must came to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This court makes it clear that in these matters no mechanical approach can be followed by these Fora . Each case has to be judicial on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficiency of the remedy provided under this Act will be unnecessarily burdened and in many cases such evidence would be illusory”
From the above it is clear that complainant alleging deficiency or negligence in service on the part of doctors can be determined even without resorting to the examination of expert doctors.
6. The complainant mainly alleging negligence on the post operative care given to him after surgery and skin grafting. According to the complainant inspite of the specific instruction of the Plastic Surgeon Dr.Leo Theobald Menezes to undergo daily dressing twice till the complete cure of the wounds and pain 2nd opposite party discharged him after putting POP cast on his right ankle on 3/9/2003 and at that time his right ankle joint was in sluggish condition and no steel rod was implanted and that caused decomposition of the flesh on the surgery site. According to him inspite of the direction of the plastic surgeon who conducted skin grafting after the surgery to undergo daily dressing twice till the complete cure of the wounds and pain the 2nd opposite party discharged him after putting POP cast on his right ankle.
7. The further case of the complainant is that the opposite parties were negligent by not immediately shifting him to an advanced hospital for better management but continued name sake treatment knowing the seriousness of the injuries and did not take proper precautions by conducting adequate diagnosis and by discharging him before completing the treatment and without monitoring the level of sugar administered him medicines and food supplements. According to him even Ziprovit (a food supplement) was given to him in place of ziprovit-D which is intended for diabetic patient since he is diabetic. It is the further case of the complainant that he is not a smoker even though the opposite parties describe him in their medical records as chronic smoker.
8. During cross examination complainant as PW1 has deposed that he was undergoing treatment under the opposite parties and he is having complaint with regard to the treatment done to him from 30/7/2003 to 3/9/2003. According to them the complaints are (1) No material was fixed other than K wire to connect his injured foot to the remaining portion of the leg (2) After his skin grafting on 24/8/03 Dr. Leo Theobald.Menezes had advised to clean and dress the wound twice a day and that was not done (3) he asked for a discharge from Ist opposite party hospital several times and during all these times he was told that things will get better and he need not go anywhere else.(4) the opposite party hospital was not having the facility to conduct surgery(5) he has not improved during the treatment.
9. PW1 further submitted that his complaints with regard to opposite parties subsequently after his discharge on 3/9/03 were the following:
1) He was discharged from opposite parties hospital without having any support to his injured ankle (2) he was requesting the doctor not to discharge and permit him to stay in the hospital for some more time but in spite of that he was discharged on 3/9/2003. (3) He was discharged even prior to the recovery from his illness (4) Dr.Leo Theobald Menezes had advised for discharge after 20 days from the date of surgery but he was discharged on 3/9/03. (5)Dr. Leo had asked him to keep the wound open and exposed to light and air. But Ist opposite party had put POP cast on his injury part preventing the exposure to light and air. (6) On 5/9/03 when he approached 2nd opposite party he prepared the POP cast by heating artificially rather than allowing it to dry naturally and 2nd opposite party put that heated POP cast on his injured part and this aggravated the wound. (7) In spite of putting POP cast again on 8/9/03 his injured ankle was not stable. The same thing repeated on 12/9/03, 15/9/03 and 18/9/03 also (8) He go to the Ist opposite party hospital on 5/9/03, 8/9/03, 15/9/03, 18/9/03 to get himself admitted as an inpatient there but when he enquired about it with 2nd opposite party told him that it is not necessary to admit him in Ist opposite party hospital and he can continue treatment at home. (9) On 22/9/03 when he approached 2nd opposite party, he referred him by providing only a telephone number without giving any address and asked him to go Mangalore and call in that number and thereafter to get himself treated there. (10) 2nd opposite party had sent him to Mangalore without even giving him a proper address of the referral centre or doctor.
10. PW1 further deposed that Dr.Leo Theobald Menezes had advised for dressing the wound twice a day specifically with him and 2nd opposite party. Dr.Leo Theobald Menezes had specifically told him that he can go home after 20 days of surgery. PW1 denied the suggestion that Dr.Leo Theobald Menezes has not given such instructions, PW1 further submitted that after discharge on 3/9/03 he has approached Dr.Rao for diabetic management. He further stated that after discharge on 3/9/03 he consulted 2nd opposite party 5 times and not only 3 times. It is pertinent to note that the suggestion made by the learned counsel for opposite parties that at the time of discharge itself he has advised the complainant to consult Dr.Leo Theobald Menezes for further follow up is denied by PW1. He also denied that he was not undergone any diabetic management subsequent to his discharge from 2nd opposite party hospital on 3/9/03 and due to lack of follow up with doctors advice all the complications were caused.
11. 2nd opposite party as DW1 filed affidavit in lieu of examination-in chief reiterating what is stated in the version. DW2 stated in his affidavit that after discharge from Ist opposite party hospital on 3/9/03 the complainant was not serious enough in following regular monitoring of sugar for insulin dosage with physician. The complainant had followed up with him on 3 occasions after discharge. After About 10 days when complainant visited him there was no further active management at that point of time and as a matter of abundant caution he again reminded and advised the complainant to approach Dr.Leo Theobald Menezes who had done the surgery for further follow up. Following that the complainant had never turned up again to Ist opposite party hospital and was lost for further follow up.
12. Dr.Leo Theobald Menezes who is examined as DW2 has deposed that he has done plastic surgery on 24/8/03. As on 24/8/03 orthopedic management was correct and completed he agreed to perform skin grafting. He also deposed that his written post operative orders include checking the wound flap on every alternative day or if required daily. He further deposed that he did not give any order or advice to keep the complainant as an inpatient in Ist opposite party hospital for 20 days. He did not advice daily dressing of the wound. He further told that if the wound is clean usually patient will be kept on the hospital for 10 days and there after follow up in the hospital. He had treated the complainant at Colaco Hospital Mangalore and was treated from 22/9/03 onwards. The complainant had not approached him in between 25/8/03 to 27/9/03 and when he meet him on 22/9/03 at Colaco hospital complainant was having following complication
1. Haematoma below flap
2.Flap tip necrosis
3.EHL tendon Necrosis
4.Diabetic Mellitus with graft infection
5.Infection on the wound and flap
13. According to DW2 TIP necrosis may be caused due to walking by the patient or may be due to irregular follow up, failure to manage diabetics or due to chronic smoking.
In cross examination DW2 admitted that at Colaco hospital he did the skin grafting and he daily visited the complainant and did the dressing and since he is a busy doctor he could not go to Mallya hospital daily, therefore he has given a written instruction. He further deposed that he did not notice whether the patient had given Ziprovit (food supplement) from 13/8/03 onwards and whether it contains sugar. DW2 further stated that Ziprovit D is meant for diabetic patients and he cannot say whether the administrating of Ziprovit which contains sugar worsened the condition of the patient. He also deposed that when the patient came to Colaco Hospital Mangalore he had no reference letter from Dr.Mallya and have only the discharge summary.
14. Dr.Ramachandra Kamath (DW3) deposed that he has not treated the patient. However by referring to Exts.B1 to B5, he deposed that the treatment administered to the complainant was proper treatment. In cross examination he deposed that he is not a plastic surgeon and not an expert in diabetic management.
15. From the version of witness what emerges is that there was no negligence or deficiency in service rendered to the complainant till he had undergone skin grafting(plastic surgery) on 24/8/03 from Ist opposite party hospital. Had there been any impropriety or irregularity in the treatment till that date then DW2 Dr.Leo Theobald Menezes ought not to have performed skin grafting.
16. The definite case of the complainant is that after skin grafting the plastic surgeon advised him dressing twice daily. But opposite parties were negligent to carry out such an instruction and instead abruptly discharged him in order to admit other patients from whom more money can be extracted. The plastic surgeon who performed skin grafting during his examination in chief has stated that his written post operative orders include checking the wound flap daily alternative day or if required daily. But he denied that he did not advice daily dressing of the wound. But in cross examination he deposed that he left the patient with advice to diabetic management, daily or alternative dressing as mentioned in the case sheet. He further deposed that he had admitted that the complainant at Colaco hospital because complainant had infection and the orthopedic surgeon performed the second surgery on 23/9/03 and he did the skin grafting. He further added that he daily visited the complainant and did the dressing.
17. This would indicate that after the 2nd surgery and skin grafting done to the complainant while he approached with infection ,the plastic surgeon after surgery visited the patient daily and did the dressing daily. So daily dressing is an integral part of skin grafting. Had it been so it is quite unbelievable that after skin crafting surgery from Ist opposite party hospital DW2 did not give any instruction for daily dressing.
18. In this case whenever the patient after discharge came for reviews repeatedly to opposite party No.2 was totally under dark and ignorant about the post operative procedures and treatments to be administered to the complainant and that caused the necrosis and further complications.
19. When a doctor fail to diagnose a known complication of surgery i.e. (in this case the necrosis) even after frequent visits by the patient for review it amounts to deficiency in service.
In H.S.Sharma Vs. Indraprastha Apollo Hospital 2007 CTJ 368 (CP) the Hon’ble National Consumer Disputes Redressal Commission while dealing with a case in which negligence in post operative care is alleged has held “over busy medical practitioner are expected to devote some time and see that post operative treatment is also given properly and care is taken of the patient in accordance with the requirements of the disease of the patient”
20. Apart from the above the administration of Ziprovit (a food supplement) in place of Ziprovit-D and the reference of the patient to a higher centre without any reference letter etc also depicts the carelessness and negligence on the part of opposite parties.
21.Point No.3:
The Hon”ble Apex Court in the case of RD Hattangadi vs. Pest Control India(P)Ltd AIR 1995 SC 755) has extensively discussed about the assessment of pecuniary damages and special damages to be awarded for a victim of an accident. Hence considering the pecuniary damages and special damages suffered by the complainant we are of the opinion that he is entitled for a total compensation of `1,00,000/- (Rupees one lakh only) with a cost of ` 7500/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which opposite parties shall be further liable to pay interest @9% for `1,00,000/- from the date of complaint till payment.
Exts:
A1-Carbon copy of wound certificate
A2-Medical certificate
A3-lawyer notice
A4&A5-AD cards
A6,to A8, A10,12, A14to A16,cash receipts
A9,A11,A13,A17- Prescription
A19- receipts
A20- to A23- bill receipts
A24series- blood report
B1-Case sheet PW1 maintained by Ops
B2 to B4 X-rays of PW1
B5- photograps of PW1 while undergoing treatment at OP.1
PW1-Abdul Majeed- complainant
DW1-Dr.Suresh Mallya- OP.2
DW2- Dr.Leo Theobald Menezes- witness of Ops
DW3-Dr.Ramachandra Kamath- -do-
MEMBER PRESIDENT
eva
