AT HYDERABAD.

F.A. 1448/2005 against C.D. 45/2004, Dist. Forum, Nellore.     

Between:

Tannamala Narayana Reddy

S/o. Krishna Reddy

Ex. Civil Contractor

Age: 63 years,

R/o. Flat No. 206,

Pavani Residency

Vedayapalem, Nellore.                                 ***                        Appellant/

                                                                                                 Complainant 

                                                                    And

M/s. Bollineni Super Speciality Hospital

(A unit of Bolleneni Ramanaiah Memorial

Hospital Pvt. Ltd.,

Rep. by its Managing Director

Ambuja Centre, Dargamitta

Nellore.                                                       ***                         Respondent/

                                                                                                Opposite Party.

Counsel for the Appellant:                          Mr. C. V. Narasimham

Counsel for the Resp:                                 Mr. B. Viswanatha Reddy

F.A. 1794/2005 against C.D. 45/2004, Dist. Forum, Nellore.    

Between:

M/s. Bollineni Super Speciality Hospital

(A unit of Bolleneni Ramanaiah Memorial

Hospital Pvt. Ltd.,

Rep. by its Managing Director

Ambuja Centre, Dargamitta

Nellore.                                                       ***                        Appellant/

                                                                                                Opposite Party 

                                                                   And

Tannamala Narayana Reddy

S/o. Krishna Reddy

Ex. Civil Contractor

Age: 63 years,

R/o. Flat No. 206,

Pavani Residency

Vedayapalem, Nellore.                                 ***                         Respondent/

                                                                                                Complainant.

Counsel for the Appellant:                          Mr. B. Viswanatha Reddy

Counsel for the Resp:                                 Mr. C. V. Narasimham                      

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

SRI G. BHOOPATHY REDDY, MEMBER

FRIDAY,  THE TWENTY  NINETH  DAY OF AUGUST  TWO THOUSAND EIGHT

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

                                                          *****

          This is a case of medical negligence.  

The complainant preferred F.A. 1448/2005 against the order of the Dist. Forum against inadequacy of compensation, the respondent -hospital filed F.A. 1794/2005 against granting of very compensation.

          Since both the parties have preferred appeals, we describe the parties as arrayed before the Dist. Forum for  felicity of expression.

          The case of the complainant in brief is that he was hale and healthy and attending to his avocation.   While so, on 24.9.1999 he met with an accident while boarding a bus at Nellore and sustained a fracture on the left side of  the hip.  He underwent operation by partial hip replacement with AM prosthesis conducted by Dr. Siva Reddy and his associates at Apollo Hospital, Nellore.   He could  able to walk only with auxiliary crutches but without any comfort.  He was suffering from pain and discomfort and restriction of movement on long walk.  Since he was not satisfied with the treatment,  he went to respondent hospital for second opinion.   They advised him to have  revision surgery by total hip replacement promising that an imported rod would be implanted which gives total relief  from pain and suffering and that  there was no need to walk with crutches.  They offered to treat at Rs. 70,000/- as a package.  They prescribed certain medicines.  Thereupon he again met Dr. Y. Siva Prasad Reddy  who conducted the first operation,  and showed  the prescription issued by the respondent, he advised him to take the medicines prescribed and wait for some time  to see whether it could  give relief.  After waiting for a considerable  time, he opted for taking treatment as advised by the respondent hospital.   Accordingly he admitted in the respondent hospital after payment of Rs. 20,000/-.   Surgery was conducted on   12.1.2003. 

In fact, the respondent hospital  also received Rs. 50,000/- from A.P. Chief Minister’s Relief Fund towards surgery.  He was discharged on 24.1.2003 with an advice to take physiotherapy and to keep the limb in internal rotation for four weeks.  In view of the assistance given by the government, he was given treatment as a second rated patient and stitched the wound without employing absorbing sutures.  His left leg was tied with the help of thread to the cot to avoid left turn.   Post operative period was cut short and was discharged.  Two weeks there after he complained to the doctors stating that there was pain and gross restriction of movement, coupled with swelling in both the feet.  When he informed that his position has become worse than before, Dr.  Rajasekhar Reddy, a visiting surgeon from Chennai, advised him to go to Vijaya Hospital, Chennai to have physiotherapy treatment.    Accordingly, he took physiotherapy treatment in December, 2003.   The operation conducted on 12.1.2003 by the respondent hospital did not give any relief from pain and suffering.  There was restricted movement of walk.  He was using the very same crutches.   There was fault in surgery.  They did not maintain high quality of service.  The pain and suffering on account of revision surgery was increased. There was deficiency in service on their part. Therefore, he claimed  Rs.1,50,000/- towards pain and suffering, Rs. 70,000/- towards operation  charges,  Rs. 30,000/- towards Physiotherapy, Rs. 1,25,000/- being the balance amount and Rs. 3,00,000/- towards total disability and costs.

          The respondent hospital denied each and every averment made by the complainant.  While admitting payment of amount as alleged by him, they stated that they never promised that after surgery he could be able to walk without crutches with ease and comfort.  The complainant was operated    on 12.1.2003,  with total hip replacement, on left side.   It denied the allegation that he was treated as second rated patient nor that they have used any sophisticated  procedure for stitching the wound.  It denied that post operative

period was cut short and was discharged.  They assert that on 12.1.2003  at the time of operation  AM prostheses was removed  and total replacement of left hip joint was performed.  The operation was successful.   Sutures were removed on 23.1.2003.  There was no infection.  The wound healed well.  He was able to walk with support.   On 24.1.2003 when he was discharged he was advised to take physiotherapy treatment to keep the limb in internal rotation.  He did not follow their advice.   Recovery after any joint replacement depends on patient’s co-operation with the Physiotherapist, his mental strength and physical ability.  There was no fault in the surgery performed by them.  The implant used was colourless, polished, tapered stem from zimmes which was made in USA,  widely accepted across the world.  Non-absorbable sutures would be used to stitch the skin and absorbable sutures  for suturing the inner layers of face, lips etc.   The complainant was discharged 12 days after the operation.  Normally post operative period is only 10 days.  He was advised for proper physiotherapy protocol for speedy recovery.   The complainant approached them after three years from the date of first surgery wherein partial hip replacement was done.   The complainant was suffering from disability as such they informed that there was possibility of relief from pain and restriction of movement by total hip replacement.  However, there was no promise or assurance to that effect. He was informed that operation/surgery was for betterment of the position of the complainant.   He was also advised that post operative period would play a vital role including physiotherapy treatment.   He did not take physiotherapy treatment immediately after discharge from the hospital.   Earlier the complainant filed C.D. 263/2001 on the file of Dist. Forum, Nellore   against the insurance company for his suffering with disability subsequent to the accident on 24.9.1999.   He filed the disability certificate issued  by  them  in   the  said complaint.  It  was  disposed of  in   his   favour.  

It proved that the complainant was suffering from disability due to the accident which was not curable even by total hip replacement.  After  surgery the complainant was in a better position.  With a malafide intention to enrich himself he filed this case.   The very fact that he obtained money from A.P. Chief Minster’s Relief Fund meant for poor who cannot afford major surgeries like the one held on the complainant shows, it was mis-utilized by him.  Since there was  no negligence or deficiency in service on their part, they prayed that the complaint be dismissed.

          The complainant filed his affidavit and Exs. A1 to A9, while the respondent filed Ex. B1 case sheet.   The Dist. Forum after considering the evidence placed on record opined that respondent hospital doctors are guilty of deficiency in service as even after revision surgery the complainant was unable to walk without crutches.   It granted Rs. 30,000/- towards suffering and pain, Rs. 20,000/- towards operation charges and Rs. 1,000/- towards costs.

          Aggrieved by the said decision, the complainant preferred F.A. 1448/2005 contending that the Dist. Forum ought to have awarded the entire amount claimed by him having opined that there was deficiency in service on the part of hospital authorities. 

          The respondent hospital filed F.A. 1794/2005 contending that the Dist. Forum has completely erred in observing that there was deficiency in service on their part. There was no expert evidence much less evidence to show that the revision surgery conducted by them was unsuccessful.   They never promised that by virtue of hip replacement the complainant would get 100% recovery.  What all they suggested was necessity of surgery and the costs that would be incurred thereupon.  In Ex. B1 there was  mention that the operation was successful.   Compensation was awarded without any evidence that there was negligence on their part.  They prayed that the appeal be allowed and consequently complaint be dismissed.

          It is an undisputed fact that the complainant met with an accident on 24.1.1999 wherein he had sustained a fracture in the hip joint on left side.  He underwent surgery for partial hip replacement with AM prostheses.   He could be able to walk with auxiliary crutches.  The said operation was conducted by one Dr. Siva Reddy, an Orthopaedic Surgeon in Apollo Hospital,  Nellore along with his assistants.   

          While so, four years after the said surgery i.e., on 11.1.2003 he was admitted in respondent hospital alleging that he was suffering from pain and there was restriction in movement.   He was unable to walk without crutches.  It is his case that he was admitted in the respondent-hospital when he was promised that he needed a total replacement of hip with AM prosthesis,  and it would make him absolutely free from pain and suffering besides walking without any crutches.  They also informed him that an imported rod will be introduced.  Believing their version he underwent  surgery by paying fee.  After the operation he was asked to undergo physiotherapy.  Despite physiotherapy, and keeping limb in internal rotation, he could not get any relief.  There was more pain, and restriction in movement coupled with swelling  in both the legs.  On their advise  he took physiotherapy treatment at Vijaya Hospital, Chennai.  However the pain or the suffering was not abated.  He was continued to walk with crutches.  This constitutes deficiency in service.

          In order to prove the said fact, he filed  the certificate of one Dr. M. Madan Mohan Reddy, Consultant Orthopaedic Surgeon, Apollo First Med Hospitals,  Chennai.  On 16.6.2004 after examining the complainant, and the X-Ray photograph he opined that  there was loosening of the implants in the left hip.  “He needs revision total hip replacement surgery.  He may need to be in the hospital for ten days  and the approximate cost of the treatment would be Rs. 2,25,000/-.”    From this the complainant assumes that the operation conducted by the respondent was not successful.   He complains that absorbable sutures were not used.  Despite physiotherapy  the pain continued and he was unable to walk without crutches.  Therefore, he was entitled to the amount paid towards the treatment.

          At the out set we may state that when Dr. C. Rajasekhar Reddy, Orthopaedic Surgeon who conducted the revision surgery (total hip replacement) filed his affidavit  mentioning the details as to how he performed the operation with the assistance of another Orthopaedic Surgeon  Dr. D. Narayana Reddy,  there was no cross-examination  supporting that the operation was unsuccessful.  He asserted that “the patient was able to walk with  support and at the time of discharge on 24.1.2003  he was advised to take physiotherapy treatment to keep the limb in internal rotation.   The complainant had not taken physiotherapy treatment as advised at the time of discharge.   The complainant took physiotherapy treatment 11 months after the discharge and due to the delay, the purpose was not served better.     It is an established practice to stitch the skin with non-absorbable sutures  and absorbable sutures are used for suturing for inner layers like face, lips etc.  Not keeping the patient in  Intensive Care Unit after operation for a long period is a good symptom for recovery  and patient will not be kept in intensive care unit  unless he needs it.  The complainant was never treated by the respondent hospital as second rated patient in view of package deal.  The respondent hospital never promised to the complainant that total hip replacement in the hospital would make him absolutely free from pain and suffering besides walking without crutches.   The patient’s recovery after any joint replacement depends on the patient’s co-operation with the physiotherapist, his mental strength, his over all physical ability and his walking ability will depend on his co-operation to physiotherapist.  His evidence was not controverted by cross-examination or by letting any medical evidence.  His evidence stands un-contradicted.

Admittedly the complainant did not take physiotherapy treatment in the hospital of respondent.  While he was admitted in the hospital on 11.1.2003 the surgery was conducted on 12.1.2003  and he was discharged on 24.1.2003.  It is not the case of the complainant even that sutures were infected or that the wound was not healed.   It is the positive assertion of the respondent doctors that operation was successful and  sutures were removed on 23.1.2003  and  the wound was also healed well.  He was able to walk  with support.  At the time of discharge on 24.1.2003 he was advised to take physiotherapy.  but unfortunately he did not follow.  Since he did not follow the post operative care, recovery was not made as per the desired results. 

          The complainant could not prove that  imported implant was not used nor the surgery that was conducted by the respondent doctors was  defective.  At the cost of repetition, we may  state  that the complainant did not examine any of the doctors to prove that the procedure adopted by the respondent in treating him  was  faulty or that there was any deficiency in service.  It is interesting to note that he filed a complaint in C.D. 263/2001 on the file of  Dist. Forum, Nellore alleging that first operation conducted on 24.9.1999  subsequent to the accident was a failure and there was deficiency in service.   Had the said operation was unsuccessful he could not have waited for three years.   He had pain and suffering and  restriction in movement.  He approached the respondent wherein total hip replacement was made.   Now he alleges that this operation was also a failure and this was attributed to respondent, amounting to negligence and claimed compensation.  This shows that he was adept in filing the complainants to recover compensation without any basis.

          It is settled law that in order to prove medical negligence, the Fora can take up the case of apparent negligence  or negligence act proved by expert opinion.  In this case no medical expert evidence has been produced by the complainant that the doctors were negligent in conducting the operation.  The Hon’ble Supreme Court in  Dr. Laxman Bal Krshna Joshi Vs. Dr. Trimbak and another reported in AIR 1969 SC 128  opined that

“The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”

          What all the doctors had to prove that they exercised due diligence and care while treating and diagnosing the patient.   When the complainant could not prove any of these factors, we are unable to hold that the doctors were at fault.   The Supreme Court in  Achutarao Haribhau Khodwa and others Vs. State of Maharashtra  and others  reported in  (1996) 2  SCC 634 opined

“that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession”.

          Therefore the certificate issued by Dr.  M. Madan Mohan Reddy could not come to his rescue.  When the complainant could not prove any of the allegations made against the doctors, we are of the opinion that the complainant did not  make out  that there was any negligence on their part.  When he could not show that he had taken post operative care, we are unable to agree with the finding of the Dist. Forum that doctors are guilty of deficiency in service.  There is no evidence  that he was unable to walk without  support as opined by the Dist. Forum.  Unless the complainant proves that there was no improvement after the surgery  and that he had adequately taken post operative care as prescribed by the doctors, he cannot turn round and state that there was no improvement in his condition. 

          To sum up there is no evidence brought on record by the complainant that there was any negligence shown by the respondent  while implanting the rod in the leg, resulting in persistent problem in the leg.  There is no expert evidence adduced to show that the doctors were negligent in discharging their duty  in the instant case.   In the absence of any evidence that there was deficiency in service, awarding of  any compensation would not be just.  The Dist. Forum did not appreciate either the facts or law in correct perspective.

          In the result F.A. No. 1794/2005 filed by the respondent hospital was allowed, consequently the complaint is dismissed.   As a corollary   F.A. No. 1448/2005 filed by the complainant  is also dismissed.  However, in the circumstances of the case, each party to bear its own costs.

                   PRESIDENT                                     MALE  MEMBER

                                             Dt. 29. 08. 2008.