BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 26 / 2005 TUESDAY THE 23rd DAY OF AUGUST 2011. M. Meena, Aged 24 years, D/o. Munusamy, Bajanai Koil Street, Pagaveli Village, Sembedu Post, Vellore Taluk. Vellore District. … Complainant. - Vs – The Medical Superintendent, Christian Medical College and Hospital, Vellore – 4. … Opposite party. . . . . This petition coming on for final hearing before us on 26.7.11, in the presence of Thiru. A. Lakshmipathi, Advocate for the complainant and Thiru. M.R.Ramanan and Associates, Advocates for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant was an agricultural labourer. Due to chest-pain, she went to the opposite party Hospital on 16.5.1997 for check-up. After thorough examination Dr. Archana, referred her to Dr.Abraham, who gave fifteen days medicines for chest pain and advised her to come back for chech-up after fifteen days. She went for check-up after 15 days once again Dr. Archana and Dr.Abraham said that there was one small boil in inside of her chest and advised her that the boil should be immediately operated. On 30.5.1997 a biopsy was done in her right breast. During the course of operation, she felt that she was not able to raise her right hand. It was told that her nerve is tighten and could not raise hands since the doctors put stitches and nothing to worry about it. On 6.6.1997 she went for check-up saying that her fingers of right hand and full right hand is not functioning and it is senseless. The Doctor recorded everything on case chart, and referred to Dr.Sunil Agarwal. After discussion, 2nd biopsy was fixed on 11.7.1997. When she asked about the necessity of 2nd operation, the Doctors told that the nerve has been cut off during the 1st operation done on 30.5.97 and she was admitted in the bed for 14 days. After the 2nd operation performed on 13.7.97 she was discharged with an advice to come for dressing for 19 days. Thereafter she found that her right hand is motionless. 2. The Doctors have performed wrong surgery on her right breast, and due to the careless and negligent manner, they cut of two nerves leading to her right hand. She has no feeling in the right hand. Several times, she has attended the opposite party Hospital and, still going on worse. She is not able to do her normal work with her right hand. The growth in the right hand also defected and day by day, her right hand is becoming lean, five fingers are not functioning. Now, she is still taking treatment Dr.R.Shanmugasundaram, Ortho, Vellore. Prior to coming to the opposite party Hospital, she was hale and healthy, and her right arm was very much normal and she was doing hand labour ever since her childhood. She was earning not less than Rs.3,000/- per month. Now, she is unable to do any work. She has become physically handicapped person. She has to depend third-party even for her personal works. She has been suffering with pain and mental agony. Now, she is aged 24 years and she has also to live for more than 40 years. So, she estimates her loss for Rs.5,00,000/- Due to careless and negligent operation done by your Doctors, nerves cut-off and caused huge expenses for treatment and nutrious food, and her right hand become useless. This is purely deficiency of services done by the Doctors of opposite party Hospital. So, the opposite party is liable to pay compensation for Rs.5,00,000/- with costs of the case and interest from the date of filing of the complaint. Therefore, directing the opposite party to give compensation for Rs.5,00,000/- cost of the suit for Rs.25,000/- and for suffering and paining Rs.25,000/- with interest at 12% p. a. from the date of wrong operation done on 30.5.97. Hence the complaint. 3. The averments in the counter filed by the opposite party is as follows: The opposite party does not admit any of the allegations made in the complaint except those that are expressly admitted herein. The complainant caused the issue of two notices through two different Advocates containing contradictory allegations regarding her status, nature of ailment and the treatment she underwent at the opposite party Hospital. In the notice dt.28.12.97, she claimed herself to be an agricultural labourer and that she had to do hard physical labour to make her daily livelihood. But in her notice dt.23.1.99 through another Advocate she stated that she was a reporter in “Dhinamurasu” daily news paper. The latter notice dt.23.1.99 contained lots of details about dates of her different visits to this hospital and names of different doctors which details were missing in her earlier notice dt.28.12.97. The complainant last visited this Hospital on 25.2.98. The Medical chart of this patient was brought from medical superintendent’s office to the concerned out patient department on 25.2.98 and kept on Doctor’s table in room no.5. The patient was not seen by the Doctor as the Doctor did not yet there arrive at the room. The medical chart of this patient was found missing from the Doctor’s table. This has been reported to the Vellore North Police Station by the report dt.25.2.98 and registered by the Vellore North Police station on 27.2.98. The police issued the acknowledgment No.5/98 served on 4.3.98 on the opposite party. The complainant caused the issue of the notice dt.28.12.97 and reply notice dt.14.2.98 was issued. 4. It is true that minor surgery was performed on the right breast of the complainant for the removal of small lump. The operation was done in a highly professional manner and she was discharged after totally successful surgery. It is absolutely false and preposterous to allege that the Doctors negligently cut her nerves leading to her right hand. The allegations that after the surgery the complainant had no feelings in her right hand, became motionless and that she was not able to perform any normal work are all denied. In any event the Doctors are not responsible at all as the condition alleged can never be directly or indirectly attributable to the surgery done at this Hospital. It is incorrect to allege that prior to coming to the Hospital the complainant was hale and healthy. The allegation that she became handicapped is denied. It is false to allege that the complainant suffered damage due to any cause or conduct attributable to the Hospital or the doctors of the Hospital. The opposite party submits that best treatment was given to her and there was neither negligence nor deficiency in service rendered at the Hospital. It is false to allege that any nerve leading to her right hand was cut off. The complaint is wholly misconceived and malafide and the opposite party is not liable to pay any amount claimed in the complaint. Hence, the complaint is liable to be dismissed. 5. Now the points for consideration are: a) Whether this complaint is barred by limitation?. b) Whether there is any deficiency in service, on the part of the opposite party? c) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A7 were marked on the side of the complainant and Ex.B1 to Ex.B6 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. Dr. Shanmuga Sundaram, Orthopedic Surgeon, examined as P.W.2. No oral evidence let in on the side of opposite party. 7. POINT – a) The learned counsel for the opposite party submitted that the complainant came to the Hospital on 16.5.1997 and took treatment till 20.12.1997, then she issued notice Ex.B1, dt. 28.12.97, wherein, she claimed Rs.2 lakhs as compensation for the alleged deficiency in the treatment. The opposite party sent a reply notice Ex.B2, dt. 14.2.98, but the complainant did not file any case against the opposite party. Again, she issued notice Ex.B3, dt. 23.1.99, wherein, she stated that she has spent Rs.2 lakhs for medical treatment itself and claimed Rs.20 lakhs as compensation for the alleged deficiency in the treatment in the year 1997. The opposite party again issued reply notice Ex.B4 dt. 2.6.99 denying the allegation of deficiency in service on the part of the opposite party, but the complainant choose to file her complaint in the year 2005. Therefore, the complaint deserves to be dismissed on the point of limitation. In this connection the learned counsel for the opposite party relying upon the following Judgements of National Consumer Disputes Redressal Commission, New Delhi I. 2006 (1) CPR 182 (NC) Mr. Alok Kumar Mukherjee & Anr ..VS.. Dr. Tapas Roy Choudhury Wherein the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is held that Consumer Protection Act, 1986 – Sections 24A and 21(a)(ii) – Complaint about medical negligence – Appellant coming to know about wrong medical advise of respondent in 1997. When appellant had come to know of the wrong medical advice of late surgery in 1997 itself but complaint was filed in 2005, 7/ 8 years thereafter, it was clearly barred by limitation of 2 years u/s 24A of C.P. Act 1986. II. 2006 (3) CPR 197 (NC) SMT. Gayatri Devi Versus Dr. Jagdish Bandani & Anr. Wherein the Hon’ble National Consumer Disputes Redressal Commission, New Delhi is held that Consumer Protection Act, 1986 – Section 19 read with Section 21 (a) and Section 24A – Limitation – Complaint about medical negligence filed in 1997 on the basis of medical certificate – Medical certificate’s date was 18.9.1994 but it was changed on 1995 – State Commission dismissed complaint as barred by limitation with costs of Rs.5,000/-. Appeal against – Whether dismissal was justified? (Yes) (Para-3) Whether delay be condoned? (No) – Whether costs be reduced? (Yes) – Appeal dismissed accordingly. 8. The learned counsel for the complainant submitted that this Forum having satisfied itself that the complaint was not barred by limitation on admitted the complaint on 13.6.05. The opposite party did not raise any objection as preliminary issue at the time of admitting the complaint. Further after issued the legal notice Ex.B3, dt. 23.1.99 to the opposite party, the complainant was taking treatment continuously from Karigari Hospital and Ortho Doctor, and after receipt of disability certificate Ex.A7, on 19.4.05 only she knew the percentage of permanent disability on her right hand, then she filed her complaint on 13.6.05. Therefore, very correctly the cause of action which was continuing arose from that date. The rulings cited by the learned counsel for the opposite party is not applicable to facts and circumstance this case. 9. From the perusal of medical records Ex.B7, page No.1 to page No.41 of the complainant issued by the opposite party hospital, it is seen that the complainant was taking treatment from 16.5.97 to 20.12.1997, then, she issued 1st legal notice Ex.B1 to the opposite party on 28.12.97, wherein, she stated that because of the negligence of Doctors, nerve leading to her right hand was cut off at the time of 1st surgery, and her right hand became useless, hence the opposite party hospital committed deficiency in service, for that she claimed Rs.2 lakhs for compensation. Again, the complainant was taking treatment in the opposite party hospital from 30.12.1997 to 31.1.1998. Thereafter, the opposite party sent a reply notice Ex.B2, dt.14.2.98 stating that they performed the minor surgery on the right breast for the removal of small lump, and denied that they have negligently cut off two nerves leading to her right hand. The complainant again issued 2nd notice Ex.B3, to the opposite party on 23.1.99, wherein, she stated elaborately about the performances of the 1st operation done on 30.5.97, and because of the negligence of doctors, nerve leading to her right was cut off at the time of 1st surgery. Based on the advise of Dr. Sunil Agarwal, the 2nd operation was done on 11.7.1997. Further, she stated that Dr.Vinoth Kumar forced to the complainant to sign in certain records and state that he will give for compensation of Rs.2 lakhs, but did not do so. Finally, she claimed Rs.20 lakhs for compensation. The opposite party sent reply notice Ex.B4, to the complainant on 2.6.99, stated that the medical chart relating to the complainant’s case missing from the hospital, and a police complaint vide FIR. No.5/98 dt. 9.7.98 was lodged with Vellore North Police Station, and also denied the allegation mentioned in the notice Ex.B3. 10. From the perusal of docket sheets of complaint, it is seen that the complaint was filed before this Forum on 13.12.04 and returned for some queries. Again, the complainant represented her amended compliant on 30.5.05, wherein she mentioned that she is still taking treatment from Dr. R.Shanmugasundaram, Ortho, Vellore, and disability certificate Ex.A7, dt. 19.4.05 also enclosed. After perusal of amended complaint along with the disability certificate, and after hearing the arguments of the counsel for the complainant, this Forum has satisfied that the complaint instituted on 13.6.05 was within time. Further, the opposite party did not raise the question of limitation as preliminary issue in his counter or his proof affidavit. During the course of arguments, the opposite party has raised the point of limitation. According to the complainant after exchange of legal notices Ex.B3 & Ex.B4 between them, the complainant was taking treatment continuously from Karigari Hospital and Dr.R.Shanmugasundharam, Ortho, Vellore. After receipt of disability certificate Ex.A7, from the above said doctor on 19.4.05, the complainant came to knew that the exact percentage of permanent disability is 35%. In the above circumstances the complainant was filed her complaint on 13.6.05. Therefore it is clear that the cause of action would be continuous in this case and the belated additional ground taken by the opposite party could obviously not be entertained in the facts and circumstances of this case. The rulings cited by the learned counsel for the opposite party is not applicable to the facts and circumstances of this case. Therefore, the contention of the opposite party that the complaint filed by the complainant is barred by limitation is not acceptable. Hence we answer this point (a) is accordingly. 11. POINT NO. (b): The complainant contented that on 16.5.97 she had gone to the opposite party hospital with complaining of chest pain. After through examination by Dr. Archana, she was referred to Dr.Abraham who gave her medicines for 15 days and advised her to come back after 15 days for a checkup. Accordingly she had gone to the opposite party hospital for checkup and they have found a small lump inside her right breast, and surgery was done for removal of small lump on 30.5.97. During the course of operation the complainant had felt unbearable pain and not able to raise her right arm. The complainant again went to the hospital on 6.6.97 saying that her right hand and fingers of the right hand are not functioning and she has no feeling in her right hand. Dr. Sunil Agarwal examined the complainant and fixed a date for a second biopsy on 11.7.97. After the 2nd biopsy result had come, the doctor had asked the complainant to undergo another operation saying that the 1st operation was done in negligent manner by cutting of two nerves. Accordingly, she was admitted in the hospital for two weeks and 2nd operation was done on 13.7.97, and she was also advised for checkup. While attending the regular checkup and dressing she had felt that her right hand was motionless and had no feeling while touching it. She could not do her day to day activities and it was worse day by day. Now she is unable to raise her right hand and physically handicapped which is only because of the opposite party’s gross and negligent manner in conducting the operation. 12. The opposite party contended that the complainant came to the Hospital on 16.5.97 with the ailment of chest pain. Minor surgery was done on her right breast for removal of small lump. It was done in a highly professional manner and she was discharged after successful surgery. It was further contended that in the absence of expert evidence, either legal, oral or by medical literature, negligence or deficiency cannot be inferred. In this case, the complainant has not submitted any evidence to substantiate the allegation of negligence or deficiency either in the matter or diagnosis or in treatment. Hence the complaint is liable to be dismissed. In this connection the learned counsel for the opposite party relying upon the following Judgements of Karnataka State Consumer Disputes Redressal Commission, Bangalore I. 2005 (2) CPR 537 G. Sampanti ..Vs.. The Manager, Personnel, Administration Hindustan Aeronautics Ltd. & Anr. Wherein the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore is held that: “Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Complainant was treated for various ailments including angiogram – Complaint alleging non-disclosure of exact problem and not diagnosing at initial stage the problem, resulted using medicines daily life long and right hand became useless – Dist. Forum dismissed complaint holding no case of negligence made out – Appeal – Complainant was not competent to conclude the prescription of wrong medicine and negligence in procedure adopted by opp. parties in treating complainant – Burden was heavily on complainant to discharge – Serious question of medical negligence and deficiency in service against professional could not be proved by suspicion and sole testimony of layman – Though complainant was fully aware of alleged improper treatment by opp. party No.2 but he continued treatment under him – No expert evidence was examined to prove allegations – Impugned order called for no interference. “ II. 2005 (3) CPR 295 Rajashree Mahadevkore Versus M.M. Reddy. Wherein the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore is held that “ (i) Consumer Protection Act, 1986 – Sections 12 and 17 – Medical negligence – Tubectomy operation was carried on complainant by opponent in April 1997 and complainant conceived and delivered child in Sep. 1999. No evidence of any negligence the operation – No evidence that complainant was suffering from Hemophilia and had told opponent about it before operation and that child born suffered from that disease. In absence of any evidence to establish negligence or deficiency in service, doctor could not be held liable in a complaint where complainant having undergone tubectomy operation conceived again and delivered a child. “ 13. In the medical records Ex.B7, page No.1 to page No.41 of the complainant it is mentioned that : the complainant came to the hospital on 16.5.97 with complaining of chest pain, and after examination some tablets were given to her. Again she came to the Hospital on 20.5.97, after the thorough examination they found that a small lump on her right breast. On 27.5.97 she again came to the hospital for review and patient referred for Lymph node biopsy. On 30.5.97 Lymph node biopsy done, two small superficial node found under the axicillery tail ® side sent for biopsy. When the complainant came to the Hospital on 6.6.97 for review, she made complaints of weakness of Right upper limp. “On examination wound healthy, minimal clawing of medial two fingers. Sensation less. No weakness at elbow and wrist. Dr. Vijai Abragam opined that the complainant weakness unlikely to be due to biopsy and advised her for two weak rest. On 13.6.97 patient still complaints of weakness of right upper limp. On examination: sensation to have low ® Right ulnar and median nerve palsy (paralysis). On 14.6.97 - HLRS opinion – patients complaints of weakness of right hand since 30.5.97 - patients says she was able to do her household work before the biopsy was done and insist that she developed weakness of right hand on the same day of work. On examination right upper limp sensation less (6 T1 Shoulder abduction grade 5 Elbow Scapula mussels grade 6 Trapezum - grade 5 No Horner Elbow : Flexion Extension grade 4 Fore arm : Supernator grade 4 Pronator grade 4 Wrist DF (Dorsal Flexion) grade 4 PF (Pronator Flexion) grade 0 Fingers : Flexion - grade 1 Extension - grade 1 Obduction - grade 0 Abduction - grade 0. Axiller : healed scare (tLt[) Imprission : Brachial plexus Lesion C7 – T1. C. Cervical Nerve 7 – Thoray Nerve T1. (EMG) Electro muschgraphy – requested. 20.6.97 : EMG Reported as Right Brachial plexupathy. HLRS opinion regarding Management, Review in next S3 0PD EMG / NCV Reported as plexupathy to be seen with Dr. Mathew Alexander 23.6.97 : Complaints of inability to hold objects and mix food, less sensation Right hand except dorsally. No weakness shoulder and Elbow, No weakness other Limps. On examination : Right shoulder and Elbow grade-4, Right wrist – Extension – 0 Flexion grade – 4. Flexion deformity + Clawhand + Present Finger extension difficult. Biceps Right less Sensation Right hand palm dorsal aspect except Right thump. Imprission : Recovering Brachial Flexus injury. Loss of sensation on ulnar and median nerve supply areas. 3.7.97 : Discussed Dr.Sunil Agarval and do kindly look into this matter of us & explaining this loss. SURGERY UNIT – III Brachial Plexupathy. Admitted on 11.7.97 Discharged on 22.7.97 Diagnosis - INJURY BRACHIAL PLEXUS Treatment - POST OPERATIVE, INFRA, CLAVILULAR, BRACHIAL PLEXUS EXPLORATION, MEDIAN ULNAR EPINEURAL, NEURURAPHY. 11.8.97 : For dressing. 30.8.97 : Plexus 4.9.97 : for a period of 3 months. 13.9.97 : Tablets prescribed complaints of pain 3 months post – operative 20.10.97 : No improvement in plexus & sensation. 14. In the medical records Ex.B7, page No.24 (Ex.A4) the doctors mentioned as follows: Short History of the Patient Inability to close the fingers since 15 days. A case of Proximal Ulnar and median nerve palsy. 20 years old girl, From Vellore 2 months back patient was suffering from fever and chest pain. So, she came to CMCH Vellore, undergone treatment from Medicine Unit. There they found swelling over the right Axillary. Then they referred to Surgery 3 unit. On 30.5.97 swelling excision was done. After she noticed unable to move the writ, fingers and thumb (R.H) Surgery III unit referred to Hand Surgery for correction of claw hand. At present glove type of anaesthesis (R.H) Wrist, fingers and thumb flexors grade 0. Intrinsic grade 0. Patient has come here for Pre operative assessment. When she was admitted in the hospital on 11.7.97 for 2nd Pre-operative Assessment they have found the following findings and mentioned in the medical records Ex.B7 page No.20 (Ex.A3): On Examination : Right Upper Limb 1. Shoulder and elbow normal range of movement. 2. Wrist in Exterision. Forearm : Supination. 3. Clawing of all fingers. Thump: Adducted and supination. 4. Sensory : Complete loss of sensation over the medial aspect of Forearm. 100 grams of force over the palmer aspect 4.00 grams of force over the dorsum of 1st web area. 5. Motor: Ulnar and median nerve supplied muscles are grade 0. Radial nerve supplied muscles are grade 3. 6. Unassissted angle present. No joint stiffness A CASE OF PROMIMAL ULNAR AND MEDIAN NEREVE PALSY – RIGHT HAND. In the medical records Ex.B7, Page No.26 (Ex.A5) discharge summary of the complainant it is mentioned as follows: - Admission Date : 11.7.97. Diagnosis : INFRACLAVICULAR BRACHIAL PLEXUS INJURY – RIGHT. HISTORY: Twenty year old female who had undergone right axillary node biopsy on 30.5.97, admitted with diminished sensation of the right forearm and numbness over medical aspect of right forearm. She also developed pain from proximal 3rd of forearn extending dritally. Fine moment of right fingers also half. On Examination: On general examination patient general condition with pulse 78/min and BP 120 / 80 mmHg. Pre operative muscle assessment in shoulder both internal rotation external rotation was Grade-V. Deitoid – Grade V. Biceple – Grade-1 Brachio Radialia – Grade V. Supinator Grade V. FCR. FCV. FDS, FDF, FPL Grade -0. Right hand intrinric muscles – Grade 0. Investigations: PCV : 42 mg Crest : 0.7 mgs RDS : 90mg% Cheat X-ray : Normal AU and HIV : Negative. EMG and Nerve conduction studies brachial Plexopathy. Treatment: Infra celavicular brachial plexus exploration and scar excision and end to end anaestamosis under general anestnesis on 13.7.97. Operative Findings: Complete laceration of median and ulnar nerve with scar formation. Course in Hospital: Uneventful. Recommendations: Not to mobilize the right arm till August 30, 1997 Mobilization of shoulder after a weeks To review to HLRE OPD To review in S.III OPD Cap. Zevit once daily x 5 days. Tab. Grufen 400mg once daily x 5 days. 15. From the perusal of above medical records it is clear that after the Lymph node operation on her right breast on 30.5.97, and two small superficial node found under the axicillery tail ® side sent for biopsy, she came to the Hospital on 6.6.97 for review, at that time she made complaints of weakness of right upper limp, and on examination, they found that wound healthy, minimal clawing of medial two fingers. Sensation less. Again she came to the Hospital on 13.6.97 with complaints of weakness of right upper limp, on examination they found that sensation to have low ® ulnar and median nerve palsy (paralysis). On 14.6.97 HLRS opinion that her right upper limp sensation less, “surgery-III Unit referred her to Hand Surgery for correction of Claw hand”. Accordingly she came to the Hospital for pre-operative assessment on 17.6.97, the Doctors found the following findings that:- “ inability to close the fingers since 15 days. A case of Proximal Ulnar and median nerve palsy. On 30.5.97 swelling excision was done, after she noticed unable to move the wrist, fingers and thumb (R.H.). Surgery III unit referred to Hand Surgery for correction of claw hand. “ On Examination : Shoulder and elbow normal range of movement. Wrist in Exterision. Forearm : Supination. Clawing of all fingers. Thump: Adducted and supination. Sensory : Complete loss of sensation over the medial aspect of Forearm. 100 grams of force over the palmer aspect 4.00 grams of force over the dorsum of 1st web area. Motor: Ulnar and median nerve supplied muscles are grade 0. Radial nerve supplied muscles are grade 3. Unassissted angle present. No joint stiffness “ A CASE OF PROMIMAL ULNAR AND MEDIAN NEREVE PALSY – RIGHT HAND. “ Again she came to the Hospital on 20.6.97 with the complaints of inability to hold objects and mix food and less sensation right hand except dorsally, and on examination, doctors confirmed that “she suffering from Brachial plexus injury and Loss of sensation on ulnar and median nerve supply areas”. Thereafter she admitted in the Hospital on 11.7.97 as inpatient and they have given treatment for INFRACLAVICULAR BRACHIAL PLEXUS exploration and scar excision and end to end anaestamosis under general anesthesis on 13.7.97. During the above operation they have found that complete laceration of median and ulnar nerve with scar formation, and they have also recommended to her that not to mobilize the right arm till August 30 1997. 16. The opposite party had stated in his reply notices Ex.B2, dt.14.2.98 and Ex.B4,dt.2.6.99 that they have performed a minor surgery on the right breast of the complainant for removal of small lump, and denied that they have negligently cut two nerves leading to her right hand. The opposite party stated in his proof affidavit that a minor surgery was performed on the right breast of the complainant for removal of small lump and the said operation was done in the highly professional manner, and she was discharged after totally successful surgery. But they denied the allegation that the Doctors of opposite party negligently cut two nerves leading to her right hand. From the careful perusal of the reply notices Ex.B2, Ex.B4 and proof affidavit of the opposite party, it is seen that they did not mentioned the examination of the complainant and pre-operative assessment done by the doctors on 6.6.97, 13.6.97, 14.6.97, 17.6.97, 20.6.97, 23.6.97, 3.7.97 and finally concluded that the complainant is suffering from Brachial Plexus injury and less of sensation on ulnar and median nerve supply areas. Further, they did not mentioned in the reply notices and Proof affidavit that the surgery III Unit referred her to Hand Surgery for correction of claw hand, and accordingly she was admitted on 11.7.97 as inpatient and given treatment to her for INFRACLAVICULAR BRACHIAL PLEXUS exploration and scar excision and end to end anaestamosis under general anesthesia on 13.7.97, and she was discharged on 22.7.97 with recommendation of not to mobilize the right arm till August 30 1997. 17. The complainant in her 1st legal notice Ex.B1 dt. 28.12.97 stated that the surgery-III Unit doctors have performed a minor surgery on her right breast for the removal of a small lump, and at the time of said surgery, the doctors have negligently cut two nerves leading to her right hand, and ever since the time of the surgery, there is no feeling in the right hand and several times she had attended the Hospital, and they performed the another major surgery by admitting her from 11.7.97 to 22.7.97. But she had not gained normal in her right hand, and her five fingers in the right hand are not functioning. In her 2nd legal notice Ex.B3, dt. 23.1.99, she stated that during the course of operation on 30.5.97, she felt that she was not able to raise her right hand and, she was told that due to stitches nerves were tightened, nothing to worry about it. She came for a check up on 6.6.97 saying that fingers and right hand is not functioning and it is senseless after the operation. After discussion with other doctors, Dr.Sunil Agarwal told that there is necessity for second operation since in wrongful manner nerves was cut off during the first operation. Accordingly, 2nd operation was done on 13.7.97. Even after the 2nd operation and dressing for 19 days and after three months for current treatment, there was no improvement, in her right hand and sensation. 18. In her proof affidavit she has also stated that during the course of 1st operation on 30.5.97, she felt that she was unable to raise her right hand, and she was told that due to stitches nerves were tightened and nothing to worry about it. She went to the hospital for check up on 6.6.97 saying that her fingers and right hand is not functioning, and it is senseless after the operation. The doctor recorded everything in the chart, and referred to Dr.Sunil Agarwal, after the discussion with the other doctors, 2nd operation was fixed on 11.7.97, when she asked about the second operation, the doctors said that the nerve has been cut off during the first operation. Then, she admitted on 11.7.97 as inpatient and INFRACLAVICULAR BRACHIAL PLEXUS EXPLORATION MEDIAN ULNAR EPINEURAL NEURURAPHY was done on 13.7.97, and she was discharged on 22.7.97. Even after 2nd operation, there was no improvement in her right hand. So due to careless and negligent operation done by the doctors of opposite party Hospital, two important nerves were cut off her right hand caused senseless. 19. According to the opposite party that they found a small lump or node on her right breast, and lymph node biopsy was done on 30.5.97 the highly professional manner, two small superficial node found under the axicillery tail ® side, send for biopsy. According to LM Harrison in his Pocket Medical Dictionary, Lymph node means: “ One of the number of small swelling found at intervals along the lymphatic system. Groups of nodes are found in many parts of the body; for example, in the groin and armpit and behind the ear. They are composed of lymphoid tissue and act as filters for the lymph, preventing foreign particles from entering the blood-stream: they also produce lymphocytes” Likewise a small swelling (lump or node0 or knot of tissue found under the axicillery tail ® side, and the said lump or lymph node operation was done on 30.5.97. During the Lymph node operation complainant felt that she was not able to raise her hand. After the said Lymph node biopsy, her right upper limp was examined by the doctors of opposite party hospital on 6.6.97, 13.6.97, 14.6.97, 20.6.97, 23.6.97 and 3.7.97, and they have finally diagnosis that due to Brachial Plexus injury she had loss of sensation on ulnar and median nerves (Right Hand) and the Surgery Unit-III referred to Hand surgery for correction of claw hand. Accordingly she admitted in the opposite party hospital on 11.7.97, and infraclavicular Brachial Plexus Exploration median ulnar Epineural Neuropathy was done on 13.7.97 and discharged on 22.7.97. During the 2nd operation, the doctors have found that complete laceration of median and ulnar nerve with scar formation. 20. From the perusal of the picture of Brachial Plexus and the Nerves shown in the said medical dictionary page No.51, it is seen that axicillery nerve misculeutaneus nerve, radial nerve, ulnar nerve and median nerve arising from the spine at the bass of the neck, from which arise the nerves supplying the arm, forearm, and hand, and parts of the shoulder girdle. Therefore, it is clear that the ulnar and median nerve are entirely different or separate from the axicillery nerve. During the Lymph node operation, the doctors have found that a small superficial lump or node only under the axicillery tail ® side, not under the ulnar and median nerve. During the lymph node operation the complainant felt that she was not able to raise her hand. The medicals records Ex.B7 page No.1 to page No.41 reveals that after the lymph node operation, her upper limp was thoroughly examined on several days, and finally concluded that due to Brachial plexus injury (right hand) she had loss of sensation and palsy on ulnar and median nerves. So, the doctors given treatment and infraclavicular Brachial Plexus Exploration median ulnar Epineural Neuropathy was done on 13.7.97. Therefore, it is clear that during the lymph node operation under the axicillery tail ® side on 30.5.97, the doctors of opposite party carelessly and negligently damage the ulnar and median nerves, which caused both nerves palsy and senseless. 21. The learned counsel for the complainant argued that Dr. Shanmuga Sundram, Orthopedic Surgeon, examined the complainant, and issued a disability certificate Ex.A4 / Ex.A7 dt. 19.4.05 to her. The said doctor’s evidence and his disability certificate further proved the allegation made by the complainant against the opposite party. Therefore, the ruling cited by the learned counsel for the opposite party is not applicable to the present case. Dr. Shanmugasundaram, Orthopedic Surgeon, having 25 years of service, examined before this Forum, as P.W.2. In his Chief examination he stated that he examined the complainant for certain disabilities caused by the injuries to the nerves Infra-operatively on 30.5.07. (Lymphone biopsy of R axila). Further, he stated that during the examination, he seen that infrachavicular Brachial plexus injury with complete laceration of median & ulnar nerves of the right upper limb leading to total loss of function of four fingers and thumb, and Abduction and adduction of fingers, complete loss of sensation of medial aspect of right forearm, motor power of muscles supplied by ulnar and median nerves are nil. Since the hand has loss almost all functions, she cannot hold or grip any object by that hand and cannot do her routine household duties. The said disability is permanent and surgeries cannot rectify the same. Therefore, he issued disability certificate Ex.A4 / Ex.A7 on 19.4.05. He had verified the medical records of the patient, discharge summary, nerve conditions study of CMC Hospital, Vellore. In his Cross Examination he denied the suggestion made by the opposite party that the disability was not due to the treatment given by the CMC Hospital. From the careful perusal of evidence of PW-2 Dr. Shanmuga Sundaram and his disability certificate Ex.A4 / Ex.A7, dt. 19.4.05, it is clear that the above said expert evidence and his disability certificate supported the contention of the complainant that during the course of Lymph node operation on 30.5.97, the doctors of the opposite party have carelessly and negligently removed the superficial lump or node under the axicillary tail ® side and cut off ulnar and median nerves leading to her right hand. Even though the doctors of opposite party hospital have given treatment to her from 6.6.97 to 20.10.97 and INFRACLAVICULAR BRACHIAL PLEXUS exploration and scar excision and end to end anaestamosis under general anesthesis on 13.7.97, her right hand did not function, and loss of sensation of medial aspect of right forearm and she has became physical handicaped person. The doctors of the opposite party have also mentioned in their medical records Ex.B7, Page No.15 that on 20.10.97 no improvement plexus and sensation in her right hand. Therefore, the expert evidence also establishes the negligent operation done by the doctors of opposite party on 30.5.97. Hence the ruling cited by the learned counsel for the opposite party is not applicable to the facts and circumstances of this case. 22. Finally, from the above said discussions and considering from the contention of the complaint, counter, as well as proof affidavit of both the parties and from the evidence of PW2 (Dr. Shanmuga Sundram) and from the documents Ex.A1 to Ex.A7, Ex.B1 to Ex.B6, we have come to the conclusion that the complainant herein has proved the negligence and deficiency in service on the part of the opposite party herein. Hence, we answer this point (b) in favour of the complainant herein. 23. POINT NO. c ) : In view of our findings on point No. (a) & (b) we have come to the conclusion that the complainant is entitled for compensation for her permanent disability on her right hand from the opposite party. Regarding the compensation the complainant stated in her proof affidavit that at the time of Lymph node operation she was aged about 24 years, prior to the surgery she was hale and healthy, she was doing all works without any pain and suffering through her right hand and she was also earning not less than Rs.3,000/- p.m. Due to careless and negligent operation done by the opposite party on 30.5.97, two nerves were cut off from her right hand caused senseless and permanent disability. Now she unable to do basic needs for herself and there is nobody to maintain her, life itself is became to standstill. The PW-2 Dr. Shanmuga Sundram has also stated in his evidence that the complainant’s right hand has loss almost all functions, she cannot hold or grip any object by that hand and cannot do her routine household duties. Her disability is permanent and surgeries cannot rectify the same. The said Doctor mentioned in the certificate Ex.A4 / Ex.A7, dt. 19.4.05 that the said disability is 35% and permanent. The doctors of the opposite party have also mentioned in the medical report Ex.B7 page No.15 that on 20.10.97 no improvement plexus and sensation in her right hand. Therefore, it is clear that after the permanent disability of her right hand. She was not able to do any work and her life itself has come to standstill at the age of 24 years. Therefore, we consider it appropriate to direct the opposite party to pay a compensation of Rs.3,00,000/- (Rupees Three lakhs only) along with interest at the rate of 6% p.a. on this amount with effect from the date of the complaint on 27.5.05, till the actual payment. Hence this point (c ) also accordingly. 24. In the result, the complaint is partly allowed. The opposite party is directed to pay a compensation of Rs.3,00,000/- (Rupees Three lakhs only) along with interest at the rate of 6% p.a. on this amount with effect from the date of the complaint on 13.6.05, till actual payment and an amount of Rs.10,000/- by way of cost of litigation to the complainant within the period of one month from the date of this order, failing which the opposite party shall be liable to pay further interest @ 12 % p.a. on the total decreetal amount for the period of delay after lapse of one month from the date of this order till the actual release of the amount. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 23rd day of August 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 31.12.97 - Letter by the opposite party hospital. Ex.A2- 17.6.97 - X-copy of hand physical Assessment. Ex.A3- -- - X-copy of CMC Progress Record. Ex.A4- 19.4.05 - X-copy of Disability Certificate. Ex.A5- -- - X-copy of Discharge summary. Ex.A6 - .. - X-copy of Short history of the patient. Ex.A7- 19.4.05 - Disability Certificate. Opposite party’s Exhibits: Ex.B1 - 28.12.97 - X-copy of the Notice received from the advocate for the Complainant. Ex.B2 - 14.2.98 - X-copy of the Reply Notice issued by advocate for the opp party to the advocate for the complainant. Ex.B3 – 23.1.99 - X-copy of the Notice received from the advocate for the Complainant. Ex.B4 – 2.6.99 - X-copy of the Reply notice issued by advocate for the opp party To the advocate for the complainant. Ex.B5 – 25.2.98 - X-copy of the Report Addressed to inspector of police, Vellore North crime. Ex.B6- 27.2.98 - X-copy of the Ack. No.34, with S.No.5/98 issued by the Police. Ex.B7- -- - X-copy of CMC Hospital Medical records. PETTIONER WITNESS:- P.W.2 – 19.4.10 } - Deposition of Witness, Dr. Shanmuga Sundaram, Orthopedic 11.4.11 } Surgeon, Vellore. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
