AT HYDERABAD.

F. A. 1205/2008 against C.C. 43/1999, Dist. Forum, Khammam

Between:

Dr. Diwakar Reddy, S/o. Butchi Rami Reddy

Age: 68 years, Doctor

Ramakrishna Nursing Home

R/o. Sathupalli, Khammam Dist.               ***                         Appellant/O.P.

                                                                   And

Madi Raju Venkata Shyam Prasad

S/o. M. V. Satyanarayana Rao

Age: 40 years,  H. No. 18/27/C

Zaheeernagar,

Opp. Surrey of India

Uppal, Hyderabad-39.                                 ***                         Respondent/

                                                                                                Complainant.

Counsel for the Appellant:                          M/s. Nimmagadda Satyanarayana.

Counsel for the Resp:                                 M/s. B. Venkata Ramana.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

                 SMT. M. SHREESHA, MEMBER

&

                  SRI SYED ABDULLAH, MEMBER.

MONDAY, THIS THE FIFTH DAY OF JULY TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                 This is an appeal preferred by the opposite party doctor,  against the order of the Dist. Forum awarding compensation of Rs. 2 lakhs for medical negligence. 

2)                 The case of the complainant in brief is that he is a private employee drawing a salary of Rs. 5,000/- per month.  While so he intended to get vasectomy  operation as such consulted the appellant  who has been running a  private  nursing home at  Sathupalli being nearer to his  village and convenient for his post operative treatment.   As per his advice he joined in the

nursing home on 6.10.1998.   He conducted the operation after obtaining his consent and collecting fee.  When he was suffering from pain at the site of operation   where he developed sepsis on the left side of scrotum, the appellant examined and prescribed some medicines, and assured that the wound  will heal soon.     However, there was no improvement.   The pain was unabated.  Since his leave was expired, he was forced to go back to Hyderabad to report to duty.    At Hyderabad he consulted Dr.  A. Chandrasekhar, General Surgeon on 16.10.1998 who in turn prescribed medicines.   He obtained certificate for extension of leave wherein the doctor categorically stated that there was some negligence while conducting the operation.   In the light of observation made by the surgeon, he developed phobia and consulted Dr.  K. Kondaiah another general surgeon who after conducting various tests prescribed  medicines and  issued a certificate stating that  the complainant was required to undergo secondary sutures and advised rest for 15 days.    The employer had warned that due to his prolonged absence much inconvenience was  experienced  in the office and that he would stop his salary.    Since the pain has not been subsided and the wound was not healed, he visited ESI hospital where the doctors opined that he needs exploration under S.A.  three sperm count analysis.   It was confirmed by Dr. M. Ramesh, Asst. Professor of Surgery, Osmania General Hospital, Hyderabad.    As his condition became still worsened he visited NIMS, Hyderabad and consulted Dr. Nagaraju, Urologist and Dr. Nanda Kumar who in turn informed that post operative care was not taken properly.    Thus he was going around the doctors and finally gave legal notice complaining negligence for which the appellant gave false reply.    In view of gross negligence and  deficiency in service on the part of appellant he was forced to  apply leave  and was unable to attend  on his parents  at his native  nor look after the children  and therefore  claimed Rs. 2 lakhs  towards compensation. 

3)                 The appellant resisted the case.   While admitting conduction of vasectomy operation after all tests, he alleged that he advised the complainant to take complete bed rest for one week.    On the very third day he undertook journey to his native for about 40 KMs.    He advised the complainant to cleanse the operation site daily.  Only on the 10^th day he came with un-cleaned wound without any dressing.    In fact operation site was stinking.   He got cleaned the pus.  He asked the complainant to take the medicines regularly.    In fact on his request Dr. M. Ramachary, Retired medical officer, Dr.  K. Rajabapaiah and Dr. ISNV Prasad examined the complainant and found to be normal and the sutures were also healed well.    There was no negligence on his part.   The case was filed in order to malign his image   and to extract money.     The Dist. Forum has no jurisdiction. The complainant is not entitled to any compensation and therefore prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case examined himself as PW1 and examined Dr.  K. Kondaiah as PW2 and Dr. A. Chandrasekhar as PW3  and got Exs. A1 to A30 marked.    Refuting his evidence the appellant examined himself as RW1 and did not choose to file any documents. 

5)                 The Dist. Forum after considering the evidence placed on record  and in the light of  certificate issued  by  PW3  in Ex. A9 mentioning that  there was negligence  on the part of appellant  awarded a compensation of Rs. 2 lakhs  claimed by the complainant together with interest  @ 9% p.a., from the date of filing of the complaint till the date of realization. 

6)                 Aggrieved by the said order, the opposite party doctor preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    PW2 had categorically stated that there was no negligence on his part.    In regard to post operative care, if there was any negligence it could only be attributed to the  complainant who did not get it cleansed nor taken the medicines properly.    The observation that the complainant had spent  Rs. 2  lakhs  for post operative treatment is not evidenced by  any documents  and compensation awarded is disproportionate and  on higher side.    Except an amount of Rs. 2,000/- towards purchase of medicines, as alleged by PW1 he did not spend any amount.   Therefore he prayed that the appeal be allowed, consequently dismiss the complaint.

7)       The points that arise for consideration are:

                   i.            Whether there was any negligence on the part of the  appellant in post operative care?

                 ii.            Whether the compensation awarded is on higher side, if so, what could be the reasonable compensation?

              iii.            To what relief?

8)                It is an undisputed fact that the appellant is a surgeon in Sathupalli of Khammam district performed vasectomy operation on the complainant on 6.10.1998 after collecting Rs. 100/- towards fee evidenced under receipt Ex. A3.    He also took consent evidenced under Ex. A2.   The fact that operation site was not healed   and he experienced pain at the operation site and later infected with sepsis was not in dispute.   PW2 Dr. K. Kondaiah, Retired Professor in surgery, Civil Surgeon, Osmania General Hospital, Hyderabad examined the complainant on  28.10.1998 for un-healing wound of post operative vasectomy.   On examination he found that “there was an infected would on the scrotum.”     There upon he got investigations for blood sugar, puss for culture and found that there was pus identified as ‘staphylococci’ vide Ex. A8.   He prescribed antibiotics, vitamins besides secondary sutures after control of infection.    Since wound was not healed well, he approached PW3 Dr. A. Chandrasekhar, a surgeon at Hyderabad.    On examination he found that wound was not healed and there was infection.  He prescribed medicines and advised for secondary sutures if the wound was not healed.  He further stated that if the wound is not healed it may lead to emotional trauma besides mental agony.    He categorically stated that there was no proper follow up of wound infection.  Normally wounds will be healed within 10 to 15 days in post operative care.    He gave certificate Ex. A9.   categorically mentioning that there was negligence on the part of appellant.

 “In my opinion that there was some negligence while conducting the operation by virtue of which M.V. Shyam Prasad  is still suffering with the non-healing of suturing of the wound once again, in view of the negligence committed by the doctor while performing the operation.”  

No worthwhile cross-examination was made against PW3 as to why he spoke against his professional colleague.    It was suggested to an extent that Ex. A9 was created which he denied.    It was suggested to PW3 that wound was healed properly which he denied.  When it was suggested that the doctor has not taken  proper care he did not admit.   He denied the suggestion that he deposed  against  appellant in order to help PW1.  No motive whatsoever was suggested either to PW3 or to the  complainant as to why  they foisted a false case against him.  The fact that the wound had become septic not only confirmed by PW3 but also by PW2 another surgeon who advised blood culture etc. confirming that the wound was infected.   PWs 2 & 3 in one voice stated that it was a post operative complication. 

9)                The learned counsel for the appellant contended that PW2 did not admit that there was any fault on the part of appellant.  The question which was posed to him was ambiguous.   The question was whether there was any negligence on the part of appellant.   He stated that there was no negligence.    After all it is not a case where the operation was a failure.    The negligence attributed to was post operative management of the wound.   No proper antibiotics  were given to contain the pus and infection, nor care was taken.  The only defence, as we could see from a perusal of the record is that as against his advice PW1 went to his village on the third day and thus contracted infection which PW1 denied all through.   If really that were  to be true, the appellant should have directed the complainant to readmit in his clinic, administer the requisite medicines to see that the infection is contained.    Evidently from 6.10.1998 till 16.10.1998 the complainant had infection.   He was forced to apply leave.  Not only he applied for leave for one week, however extended till 16.10.1998.  The appellant who was examined as RW1 could not explain the care taken by him subsequent to the operation.   For the first time, though did not plead in the counter, stated that the complainant along with his counsel Sri Madhusudhan Rao came and demanded Rs. 5,000/- which he refused to pay, and therefore this  complaint was filed. 

10)              The appellant  obviously in order to prove that  he had taken all the care,  when PW1 complained that the wound was not healed,   he got him examined through  Dr. M. Ramachary, Retired Medical Officer, Sathupally and Dr. K. Rajabapaiah  and  Dr. ISNV Prasad of Sathupalli.    Their affidavits were not filed in order to substantiate the said fact.   In the light of evidence of PWs 2 & 3 whose evidence stands unchallenged, we are in full agreement with the findings of the Dist. Forum that there was negligence on the part of appellant.  He did not administer requisite antibiotics and  send blood or puss to  culture,  to administer antibiotics accordingly.    In fact re-suturing was suggested by PWs 2 & 3.    However, it is not the case of the complainant that the re-suturing was done.   Therefore we agree with the findings of the Dist. Forum. 

11)              Coming to the question of quantum,  the Dist. Forum has awarded Rs. 2 lakhs on the ground that the complainant has spent the said amount.   However the complainant did not file all the bills to prove that he had spent about Rs. 2 lakhs towards medicines.    He filed Exs.  A24 for Rs. 146.55  Ex. A25 for Rs. 10/-  Ex. A26  for Rs. 17.50,  Ex. A27 for Rs. 75.90 totalling  around Rs. 250/-.    The appellant desposed that he could have spent Rs. 2,000/-.   Since he had also taken treatment from PWs 2 & 3 and other doctors and visited  various hospitals viz., ESI, Osmania General Hospital and NIMS, it could be stated reasonably   that he must have spent about Rs. 10,000/-.   Though he stated that he could not attend to his duties and that there was loss of salary he did not file any documentary evidence in regard to the said fact.   However, he could have taken treatment for about three months.  He alleged in his  complaint  that  he  was  drawing  a  salary  of  Rs. 5,000/-  per  month.      

An amount of Rs. 15,000/- could be awarded towards loss of income.   It is not the case of the complainant that still he has been facing problems.   It must have been cured  since required antibiotics were prescribed and administered.   He must have endured mental agony, and pain for which he was entitled to compensation.   Even otherwise, in cases of this nature principle of ‘re sips loqutur’ could be applied.    The complainant could prove that  infection was the result of  improper post operative treatment.    Considering the nature of infection and complications  that the complainant had  endured, we are of the opinion that  a compensation of Rs. 50,000/- could be awarded.  In all Rs. 75,000/- which we feel reasonable and modest. 

12)              In the result the appeal is allowed in part,  modifying the order  and directing the appellant  to pay  a compensation of  Rs. 75,000/- with interest @ 6% p.a., from the date of complaint till the date of realization together with costs of Rs. 5,000/- in the appeal.  Time for compliance four weeks.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

3)      ________________________________

 MEMBER          

   Dt.  05. 07.  2010.

*pnr

“UP LOAD – O.K.”