In F.A. No.137/2012

For the Appellant :         Dr. B. Cheran, Advocate

For the Respondents :     Ms. Asmita Singh, Advocate &

Ms. Arushi Gupta, Advocate for R-1

Mr. S. Aravindh, Advocate

Ms. M. Mahimai Antoni Jeyam, Advocate &

Mr. Eashwar, Advocate for R-2 to 5

In F.A. No.284/2012

For the Appellants :        Mr. S. Aravindh, Advocate

Ms. M. Mahimai Antoni Jeyam, Advocate &

Mr. Eashwar, Advocate

For the Respondents :     Ms. Asmita Singh, Advocate &

Ms. Arushi Gupta, Advocate for R-1

Dr. B. Cheran, Advocate for R-2

Pronounced on: 30^th May 2023 

ORDER

1.       This Order shall decide both the first appeals arising from the impugned Judgment /Order  dated 03.02.2012 passed by the State Consumer Disputes Redressal Commission, Puducherry (hereinafter referred to as the “State Commission”) in Dispute no. 2/2006, wherein the State Commission allowed the complaint and awarded  compensation to the tune of Rs.12,00,000/- & Rs.2,00,000/- towards costs.

2.       For the convenience, the parties are being referred to as in the Complaint before the State Commission

3.       Brief relevant facts of the case are that the Complainant Mrs. G. Mangayarkarasi (for short, ‘the patient’), an auto rickshaw driver was suffering from thyroid problem. She consulted Dr. Mohan Kumar (OP-2) in his private clinic. He was working in Govt. General Hospital, Puducherry (OP-5). On 04.03.2003, he performed thyroid surgery and discharged her on 10.03.2003. It was alleged that the Complainant suffered pain in throat and vocal cord, unable to speak properly for which the OP-2 advised to wait for some weeks to heal the surgical wound to recover her voice. She took follow-up treatment in the OPD of OP-5 Hospital and also at private clinic of OP-2. During the treatment period, the patient conceived and delivered a male baby at Govt. Maternity Hospital, Puducherry.

4.       As there was no improvement even after one year, on 16.08.2004, the Complainant approached JIPMER Hospital and came to know that she was operated for ‘Subtotal Thyroidectomy’. It was alleged that during surgery, some nerves got damaged permanently and, therefore, for her breathing difficulties, she underwent ‘Tracheotomy’ on 27.08.2004. The Jackson metal tracheotomy tube of size 32 was inserted and she has to live with it throughout her life, which requires regular cleaning and change of tubes to avoid infection. Even after surgery at JIPMER Hospital, her condition did not improve. She consulted few doctors in Puducherry. Since she continued to have pain, she approached Apollo Hospital, Chennai and on 24.06.2005, underwent fibre-optic laryngoscopy, which confirmed bilateral abductor palsy of vocal cords. Since her TSH was high and she was advised not to go for further surgery. Being aggrieved by the faulty and negligent surgery, she filed a complaint before State Consumer Disputes Redressal Commission, Puducherry and sought compensation to the tune of Rs.37,00,000/-

5.       The OP-2 filed written version and raised objection that the complaint is barred by limitation as it was filed after three years from the cause of action i.e. surgery. Moreover, the treatment given by OP No. 2 is free of charge in the Govt. Hospital, Puducherry. Therefore, the Complainant is not a Consumer.

6.       He submitted that the thyroid surgery was uneventful and after removal of the stitches at the time of discharge, her speech was normal. She did not complain about any pain post-operatively. The biopsy was reported as Hashimoto Thyroiditis, an auto immune disorder. The patient visited OP-2 only on two occasions in his clinic. He prescribed medicines for respiratory infection and general health.

7.       The written version filed by the OP-5 was adopted by OPs- 1, 3 and 4, as they were Govt. Authorities as a proforma parties. It was submitted that an enquiry was conducted by Dr. K. Nandakumar, explained the treatment given by OP - 2 and advised to undergo  further treatment, but, the complainant never came forward. The allegations are baseless and vexatious. The Govt. Hospital, Puducherry is well equipped with modern machineries and new technologies. Therefore, there was no medical negligence on their part and prayed to dismiss the complaint.

8.       The State Commission while deciding the complaint framed 17 issues and partly allowed the Complaint and awarded Rs. 12,20,000/- to the Complainant as a compensation.

9.       Being aggrieved, the OP-2 Dr. S. Mohankumar filed F.A. No. 137 of 2012 and the Union of India & 3 Ors.  filed F.A. No. 284 of 2012.

10.     Heard the learned counsel for the parties, perused the entire material on record. 

11.     The learned counsel for Appellants argued on the maintainability of the Complaint as the Complainant was not a consumer as under section 2 (1) (o) of the Act 1986.The surgery took place in a Government hospital where no fees collected from any patient. The complaint is time barred i.e. filed after the delay of one year. No application for condonation of delay under section 24 A was not filed. He further argued that the alleged complications were not the result of the surgery performed by the OP-2.

12.     The learned counsel for Complainant/Respondent argued that the OP-2 was running a Private Consulting Room and he had demanded Rs. 20,000/- for arranging the required surgery in Government General Hospital, Pondicherry. However, they could only pay Rs. 10,000/-Since the common practice of receiving such back hand money was not to give any receipt. The OP-2 as a plastic surgeon failed to detect the ailment of the patient.  An opinion from ENT specialist and Fine Needle Aspiration Cytology (FNAC) would have detected Hashimoto’s auto immune disease for proper treatment. But, Hashimoto's disease was diagnosed only after the surgery and biopsy report.  If the OP-2 would have known this, possible corrective action could have been undertaken to prevent the occurrence of laryngeal palsy.  As stated by Dr. Gopalakrishnan, CW3, an ENT Specialist would have taken care to identify the recurrent laryngeal nerves prior to the removal of the enlarged thyroid mass.  The high level of TSH was suggestive of severe hypothyroidism.  Due to negligence of OP-2 the patient suffered Bilateral Palsy, a life threatening condition and finally she had to undergo an emergency tracheotomy surgery at JIPMER in August, 2004 and Jackson's metal tracheostomy tube was inserted. Thus she has to live the rest of her life with a tube inserted in her throat which requires regular expenditure for maintenance, cleaning and possible replacement. The State Commission has rightly awarded compensation to the Complainant. The complainant has to receive medical suppressive therapy.

13.     I have perused the entire medical record, the affidavit of Dr. Gopalkrishna and some standard Surgery text books.   

14.     It is admitted fact that, the OP-2 was a Govt. servant and working Government General Hospital, Pondicherry. The complainant has not produced any payment receipt as a consideration paid to the Govt. Hospital or the doctor OP-2. The Hon’ble Supreme Court held in Indian Medical Association v. V.P. Shantha & Ors.^[1] case held that "Service rendered at Government Hospital / health centre / dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression 'service' as defined in Section 2 (1) (o) of the Act. The payment of a token amount for registration purpose only at the Hospital / nursing home would not alter the position." Similar view was taken by Hon’ble Supreme Court in the recent judgment of Nivedita Singh vs. Dr. Asha Bharti[2] & Ors.

15.     Secondly, the Complaint was barred by limitation. The surgery had been performed on 04.03.2003, but complaint was filed on 28.02.2006 and taken on file only on 25.04.2006, i.e. after 3 years of cause of action. In the instant case it was not a continuous cause of action. Moreover, it was alleged by the Complainant that she developed loss of voice immediately following surgery, in that case even the "Discovery Rule" will not come to rescue of the complainant.  She should have filed the complainant when she had discovered that she lost her voice immediately after surgery. Therefore, in my view the Complaint was filed beyond the limitation period as prescribed under section 24 A(2) of the Act,1986. 

16.     In my view General Surgeons, often perform Thyroidectomy, and the OP-2 was qualified as a Plastic Surgeon, he was not barred to perform thyroidectomy as per the guidelines of Medical Council of India. It is to note that the patient was   conceived after fourteen years of infertility, and after the successful thyroid surgery she conceived.  Both mother and baby were doing well after normal delivery.

17.     On merit, it is pertinent to note that during pregnancy for Antenatal Checkup (ANC) patient attended PHC at Munungapakkam and Government Maternity Hospital, Pondicherry, but nowhere in the ANC record loss of voice or breathing difficulty was mentioned. Therefore, allegations of complainant are not sustainable. Physiologically, during pregnancy nearing term, the women face difficulty in breathing. In the instant case, it was normal delivery without any assistance or without any drugs.  Thus difficulty in breathing following surgery appears to be insignificant.

18.     It is pertinent to note that if the nerve was damaged during surgery the effect of loss of voice shall be immediate not after 1½ years. Nothing is on record to prove nerve damage. There was no respiratory distress following surgery. The patient between 16.08.2004 and 26.08.2004 became severe. The Complainant attended various hospitals viz  JIPMER, Arupadai Veedu Medical College, PIMS and Apollo Hospital but  no record was filed to prove the voice changes during that period. 

19.     From the medical record it is evident that the symptoms of laryngeal palsy was noted after 1½ years after the thyroidectomy operation performed by OP-2.  During the intervening period patient never consulted the OP-2 or any other hospital for the alleged breathing difficulties.  The expert Dr. S. Gopalakrishnan was of opinion that vocal card palsy will manifest immediately after surgery. Thus, the subtotal thyroidectomy performed by OP-2 was not the   proximate cause of vocal cord palsy in the instant case.  In 70 to 80 % cases such palsies are idiopathic and moreover the vocal card palsy is much less common in subtotal thyroidectomy. Viral aetiology also one of the possibility.

20.     Based on the discussion above, in my view, the Complaint filed before the State Commission deserves to be dismissed at the time of inception as the Complainant was not a Consumer under Section 2(1)(d) of the Act, 1986 and the Complaint was barred by limitation as under section 24 A of the Act,1986. Even, I do not find any negligence or deviation of practice or an act of Omission from OP-2.  The Order of the State Commission is set aside and both the Appeals are allowed. Consequently, the Complaint filed before the State Commission is dismissed.

21.     The Registry is directed to return the amount, if any, deposited by the Appellant along with accrued interest to the Appellant, as per law.