Tamil Nadu
South Chennai
CC/388/2017
Mrs Haseena Begum - Complainant(s)
Versus
M/s Sampath Nursing Home - Opp.Party(s)
S Arokiaya Maniraj
11 Jul 2022
ORDER
Date of Complaint Filed : 31.08.2017
Date of Reservation : 22.06.2022
Date of Order : 11.07.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No. 388/2017
MONDAY, THE 11th DAY OF JULY 2022
Mrs. Hassena Begum,
W/o Khaleel Ahmed,
Residing at No.9/5,
Srinivasapuram, Pattinampakkam,
Chennai – 600 028. ... Complainant
..Vs..
M/s. Sampat Nursing Home,
Rep. by its Manager,
#4, Nachiappa Street,
Mylapore,
Chennai – 600 004. ... Opposite Party
******
Counsel for the Complainant : M/s. S. Arokia Maniraj
Counsel for the Opposite Party : M/s. Dr.B.Cheran
On perusal of records and after having heard the oral arguments of the Opposite Party and having treated the Written Arguments of the Complainant as Oral Arguments, we delivered the following:
ORDER
Pronounced by the Member-I, T.R.Sivakumhar., B.A., B.L.,
1. The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.10,00,000/- towards medical expenses incurred by the Complainant and to pay a sum of Rs.5,00,000/- as compensation to the Complainant for making her a permanently disabled person.
2.Brief facts of the Complaint filed by the Complainant is as follows:
The case of the Complainant is that she was suffering from severe left knee pain, subsequent to the pain she had been approached by the Opposite Party and promised her to cure the pain totally by a knee replacement surgery under the Chief Minister’s Comprehensive Health Insurance Scheme. Believing the promise made, she got admitted on 16.03.2015 in the Opposite Party Hospital and got operated her left knee on 24.03.2015. She was discharged from the Opposite Party Hospital on 28.03.2015. As she felt pain in the operated area she enquired with the Opposite Party and was called for checkup on 11.04.2015 and some medicines were prescribed to her. As the Pain was got down she again on 23.04.2015 contacted, again some medicines were prescribed by the Opposite Party, who informed that she was normal and nothing to worry. Whenever she visit the Opposite Party Hospital, several tests were taken, on 08.05.2015 she went for medical checkup and continued to consult for regular medical checkup with the Opposite Party. As her pain was unbearable she went to Soundarapandian Hospital, Anna Nagar on 20.07.2015 and after diagnosis she was insisted for admission immediately and got admitted on 20.07.2015, on the same day it was found that her left knee got infected. As the infection was in the operated area, she was unable to bear the pain and got admitted on 20.08.2015 for treatment and after taking several tests and was discharged on 26.08.2015. After pursuing her reports Soundarapandian Hospital instructed her to undergo Revised Total Knee Replacement surgery and hence with no other option she got admitted on 07.04.2016 and the said surgery was done on 09.04.2016 and was discharged on 18.04.2016. She has spent nearly Rs.10 Lacs at Soundarapandian Hospital towards medical expenses to restore her left knee or else she would be put in a situation where her left knee would have been totally removed. Even though after the operation she is still unable to walk properly leading to a permanent disability and the Opposite Party properly diagnosed her at an earlier stage, would not have gone for another treatment by spending huge amount. She had been given due care and caution in their treatment, she would not have suffered a lot. It was purely dereliction of duty, she had approached the Opposite Party on several occasions questioning their deficiency of service and the Opposite Party had failed and neglected to heed her request. Thereafter she approached the Legal Aid Service Authority for proper and after scrutiny by the legal Aid Authority, she filed this present complaint. The said acts clearly shows the reckless attitude, negligent act of the Opposite Party and moreover the Opposite Party Hospital’s own records would show that she had regularly taken treatment for the same issue, further their own documents would prove their deficiency in service which made her a disabled person and had spent for restoring her knee. Hence this Complaint.
3.Brief facts of the Written Version filed by the Opposite Party is are follows:
The Opposite party Hospital represented by Mrs.Chandralekha as a Proprietrix. The Opposite party hospital has been Founded in the year 1984 and registered under Tamil Nadu Government’s Chief Minister’s Comprehensive Health Insurance Scheme from 2012 and as mandated to hold regular monthly camps, had conducted following the same and so far no case of negligence & any pending case against the Opposite party. The Opposite party Hospital has been accredited the entry level by the National Accreditation Board of Hospital and Healthcare provider (NABH). Further the allegations of the Complainant are unfounded, untenable, devoid of truth, and not supported or could be buttressed by relevant and genuine documents and there is no breach of duty or act of negligence on the part of the opposite party. They have exercised good care and professional skills in managing the case of the Complainant. On patient, they have performed their duty as expected being a prudent institution in similar circumstances. The allegations made by the Complainant is that when she presented with severe pain in both knees, more in the left knee. It was so severe that her daily activities were affected. She was unable to climb stairs. She was only able to attend toilet and was otherwise bed ridden, as per the Opposite party Record of the Orthopaedic Surgeon who examined the Complainant on 16.03.2015 as Ex.B-1. The concerned Orthopaedic surgeon, as chosen by the Complainant, referred her to the Opposite party for admission and surgery. As per the In-Patient (IP) case sheet dated 16.03.2015, the Complainant is a diabetic on oral hypoglycaemic agents and poorly controlled and HBA1C level at 7 at the time of admission, hypertension & coronary heart disease and on medication, TLIF spine surgery for L4-L5 intervertebral disc prolapse done in MIOT Hospital. Further on examination the Orthopaedic surgeon had noted bilateral medial joint line tenderness, associated with pain and spasms, medio lateral & Antero posterior instability. Old scar in spine present, SLR both legs free. No distal neuro vascular deficit. Knee jerk ++, ankle jerk ++. The details of the course of treatment in the Opposite party Hospital and treatment given to the Complainant, were as follows;-i) The Complainant/Patient’s X-ray knee AP view/lateral view (standing), blood test, Echo test and anaesthetist opinion for fitness obtained. The Patient / Complainant was advised to stop aspirin, control diabetes and undergo physiotherapy, which was done regularly to optimize the patient for the surgery by the Orthopaedic Surgeon. Only when optimal condition was achieved on 23.03.2015 blood sugar (F) – 119 mg/dl & postprandial blood sugar – 158 mg/dl, surgery was 24.03.2015, by the concerned orthopaedic surgeon, who explained in detail about the diagnosis, about the treatment modalities, benefits and risks involved in these types of treatment, advantages and disadvantages, cost involved, days to recover and how the surgery world be performed. The orthopaedic surgeon explained to the patient about the necessity for surgery, the alternatives for the proposed treatment, anaesthetic complications and the option of not undergoing any treatment. Only after this session of explanation, the patient / Complainant signed the consent undergo the surgery, along with her husband Mr. Khaleel Ahmed. ii) In the consent form, the Complainant / Patient was clearly informed about the possible complications of (1) Infection (2) Implant failure (3) Loosening (4) Re-surgery (5) Prolonged physiotherapy (6) ICU care (7) Blood transfusion and signature obtained from the Patient / Complainant and her husband Mr. Khaleel Ahmed. iii) On the day of surgery (ie.24.03.2015) – preparation, pre-operative scrubs-with Betadine and chlorhexidine given to the affected part (knee), proper pre-operative antibiotic prophylaxis (Injection Teicoplanin & Rexim – S) given. iv) The World Health Organization (WHO) safety surgical checklist was followed by the Opposite party as per the National Accreditation Board for Hospital (NABH) guidelinesReferring to Item No.7 of typed set filed by the Complainant dated 09.05.2015 have an excellent outcome of the planned procedure, which includes (a) correct identification of patient, (b) site of problem, (c) pre-operative optimization, (d) planning-in terms of pre-operative scrubbing, (e) antibiotic prophylaxis, (f) clean laminar air flow system with air conditioner &Hepa filters, (g) fumigation, (h) ultra violet light is used with proper sterility checks in autoclaving and high quality implants were used to achieve the best results. This was done in the presence of the concerned Anaesthetist and the orthopaedic surgeon v)Intra operative good surgical technique was followed by the surgical team, correct component positioning and alignment achieved, meticulous standard technique (Opposite party site used, sterile draping set used, pulse lavage used) was followed. Surgery completed in 2 hours time, as scheduled, meticulously closed, drain was placed and wound closed in layers. Vi) As the post operative period was uneventful, the Complainant / patient was made to stand on the second day and mobilized with walker support and brace and later discharged on 29.03.2015 as per Discharge summary as issued by the Opposite party. The Complainant was advised to review by the concerned orthopaedic surgeon on 01.04.2015. But however the Complainant came on 04.04.2015. vii)The Complainant was medically followed-up regularly, by the concerned Orthopaedic surgeon, after discharge in the OPD (out-patient department) and was advised correctly regarding medication and physiotherapy, but she failed to correctly consult the concerned orthopaedic surgeon on time, while proper follow up is essential. viii)More details are available in the case sheet. Thereafter, the Complainant alleges that her pain was not relieved after surgery at the Opposite party. Hence she consulted Soundarapandian Hospital where she was informed that her left knee was infected, where she had undergone surgery after 8 months and now claims to be have been cured. Further, In an Application No. A / 9 /2017 dated 30.05.2017, filed by the Complainant / patient, this Opposite party was summoned by the Tamil Nadu State Legal Services Authority, High Court of Madras campus, for an enquiry and Redressal of the Complainant’s grievance, to come with necessary document on 14.06.2017. (Ex.B-3) The papers pertaining to laboratory reports and other documents issued by M/s.Soundarapandian Hospital were furnished to this Opposite party. The said documents submitted by the other Hospital, namely M/s Soundarapandian Hospital have been deliberately suppressed by the Complainant before this Hon’ble Forum when filing this complaint and hence the same were filed along with this version which would clearly show the falsity of the Complainant’s case. The present vexatious complaint has been filled by the Complainant with the ulterior motive to extract money from the Opposite party. (Ex.B-4)Thus the two major complaints of the patient were pain in the left knee and infection following surgery. The Opposite party deny both the allegations and shall disprove them by means of documents as furnished by the Complainant / patient to establish that they were not in any way negligent. The Opposite Party has only provided the ancillary facility as required of a hospital and the Orthopaedic surgeon has conducted the surgery as per the Complainant’s choice, in the presence of the anaesthetist as chosen by the Complainant / patient. It is specifically denied that this Opposite party had approached the complainant and given her promise of total cure. In fact it was the Complainant who attended the medical camp on 16.03.2015 and the Complainant / patient had chosen the concerned orthopaedic surgeon to undergo surgery as well as the hospital to do the surgery. Thereafter she got admitted with the Opposite party. No doctors give any guarantee in treatment as alleged; because medical science is an imperfect science and they did not make any such promise as alleged. It is true that she got operated on 24.0302015, with the consent of the Complainant and her husband Mr.Khaleel Ahmed, the allegations of the Complainant that she was feeling pain over the operated are after discharge on 28.03.2015, wheras The Complainant / patient actually got discharged on 29.03.2015. The Complainant states that she came for review on 11.04.2015, the Opposite party did not prescribe any medicine as stated by the Complainant. It was the concerned Orthopaedic surgeon who had done so. This was similarly done so on 23.04.2015 and on 09.05.2015, not 08.05.2015 as stated. The Opposite Party states that this was not the correct state of affairs. In fact, the complainant was in good health and was walking comfortably, even without any walker. She did not have infection when she was discharged till last follow up, with the Opposite Party, as per the records filed by Complainant / Patient. They have filed the out-patient records maintained during the reviews attended by the patient. The dates of reviews mentioned in the Complaint by the Complainant are partly wrong, as review dates were 04.04.2015, 11.04.2015, 23.04.2015 and 09.05.2015. on 11.04.2015, patient was advised to come on 17.04.2015, but she attended only on 23.04.2015. on 09.05.2015 patient was advised to come on 30.05.2015, but she did not come back at all, whereas she consulted Soundarapandian hospital only on 20.07.2015. The infrequent visits and the long interval before the review and missed consultations denote that the Complainant / Patient was fine and was not having any complaints of health in the interim period. She was given prescription “hexilac” ointment, which is used only after the wound has healed and a scar is formed, which is used for scar softening. The Prescription dated 09.05.2015, patient was given prescription when wound (scar) was noted to be healthy – (No infection). Range of Movement (ROM) is good – 0 to 100 degree patient was able to do Straight Leg Raising (SLR). This denotes that the whole injury has been cured and she does not require a knee brace anymore to walk, as found in Ex.B-6. More over as planned suture removal done on 11.04.2015, then the wound condition was good, later again on review on 23.04.2015 her pain was much better and came walking with brace and walker & again on last consultation on 09.05.2015 with the concerned orthopaedic surgeon complainant was pain free, walking well outside the home also, her scar was healthy, there was no extensor lag, ROM (range of motion) 0-110* pain free, patella tap negative and was also able to walk up and down the stairs few steps and as per the assessment it was a good result till then more details available in Opposite Party Record maintained. She was advised walking and exercise which would be advised only when the Patient has fully recovered. The antibiotics were stopped on 09.05.2015 in view of her full recovery and denoting there is no infection. Her post operative x-ray taken on 24.03.2015 shows good implant position. Her post operative wound is clean and had healed well. Even the Complainant in the feed back sheet had reported that she was happy with the result as evidenced from the satisfactory letter. The letter issued by Dr.Sivamurugan dated 06.06.2016 wherein it is stated that Complainant had swelling since only one month duration before and the same was also found in the patient report given by Dr.Ravisubramanian on 20.07.2015. It is clear that till 09.05.2015 the last day of consultation with the concerned orthopaedic surgeon she did not suffer from any infection. It is also clear that the consultation with another hospital was made only after a lapse of 2 and half months i.e., from 09.05.2015 to 20.07.2015, wherein it is mentioned that Pain since 1 month, which would show that she was not having any pain or discomfort before July 2015. Further it is to be noted that she was not taking any antibiotics during 09.05.2015 to 20.07.2015 and she was not prescribed any such antibiotics for any infection by the subsequent doctors with whom she consulted after discharge from the Opposite party Hospital. Even in the certificate issued by Soundara Pandian Hospital states that the Complainant had infected TKR left knee from 20.06.2015, when that was so, no antibiotics administered or prescribed for alleged infected TKR left knee. And the reports of the Complainant taken at Soundara Pandian Hospital, the sample report dated 21.07.2015 would show that neither White Blood Cell (WBC) nor any organism is seen, when she is not on antibiotics and also AFB stain negative and culture and sensitivity is negative, even when she is not on antibiotics. Further the sample report dated 21.08.2015 of tissue biopsy taken from the Knee joint after one month, which also show no growth of any organism, even when she is not on antibiotics. Only Polymorph cells was elevated in borderline to 69 as against reference value between 40 – 65. The Lymphocytes count were normal, which means only by that time when an acute inflammation is set in. If the infection was for last four months then the lymphocyte count would have been elevated. And the Opposite Party relied on the academic sources by referring extract in the “Utility of Serological Markers for Detecting Persistent Infection in Two – Stage Revision Arthroplasty in Patients with Inflammatory Arthritis”, extract from the Journal of Arthroplasty, copyright @ Elsevierr Inc-Given in 2nd page – 18 line. And a Patient was considered positive for infection when one of the following existed: 2 Positive Periprosthetic cultures with Phenotypically identical organisms a sinus tract communicating with the joint, or 3 of the following minor criteria; (i) Elevated serum CRP(>1mg/dL) and ESR (>30mm/hr), (ii) Elevated synovial fluid white blood cell count (>3000/L), (iii) Elevated synovial fluid polymorphonuclear neutrophil percentage (>80%). Positive histology (>5 neutrophils per high power field in 5 high power fields), Or a single positive culture in periprosthetic tissue/synovial fluid. It is submitted that none of the major criteria is full filled and half minor criteria (only Erythrocyte sediment rate (ESR) is fulfilled whereas three minor criteria should get full filled to denote INFECTION as per the journal quoted. Hence it could be concluded that no infectious disease specialist is involved despite in doubt, which would show that it was not proven infection in the instant case.Further, most importantly as first report is negative & only the second report is positive, as ASO (Anti Streptolysin O titer) is positive in 2nd Lab report dated 31.12.2015, which indicates recent infection, as found in Lab report of Soundarapandian Hospital.Further relied on reference to International Journal of Infectious Diseases (2009) 13, 421424 Use of Serum Antistreptolysin 0 titers in the microbial.And further reference made as per academic Journals, quoting the definition of Periprosthetic Joint Infection authored by JavedParvizi MD, FRCS, Christina Jacovides BS, Benjamin Zmistowski BS, Kwang Am Jung MD published online : 13th July 2011. The Association of Bone and Joint Surgeons 2011. Clin OrthopRelat Res (2011) 469:3022-3030 as given in inner Page 4.From the description of treatment/diagnosis of the Complainant is that there was no draining sinus, intra operative purulence as there was no WBC in gram stain only RBC present, No positive cultures – inspite of 3 repeat cultures at varying intervals, Not acute as more than 4 months passed, as minor criteria only ESR positive, no fluid WBC or Polymorph count is qualifying for this step. Hence as per the latest recommendations of the Anthroplasty Surgeons, knee was not infected at presentation – ASO was negative then and later turned to be positive as the body produced the antibodies.The Opposite Party had taken extra care to avoid infection to the Complainant as follows : (i) Antibiotic prophylaxis with Teicoplanin and Rexim – S prescribed, (ii) Proper Diabetic Follow up done till 09.05.2015 which shows good control and Poor Control would cause infection, (iii) Preoperative scrub with betadine and chlorhexidine were administered to the Complainant/patient the sterile gowns, drapes and opsite used and operated under ultra sterile laminar air flow theatre with heap filters and ultra violet rays and formalin fumigation & full autoclaving done, operated in 2 hours time. Intra Operative pulse lavage done, good physiotherapy and rehabilitation done and discharged with full weight bearing, walking with walker. (iv) Medicine Bill, all the medicines purchased and used for the Complainant. (v) Further the periodical swab tests done to show that the operation theatre is free from infection, (vi) The operation theatre has Laminar flow arrangement where the infection rate is nil, (vii) The Complainant had not chose to take the prescribed antibiotics as found in the return medicine Bill. And the Opposite contended that the Complainant had no infection as on 09.05.2015, much less had any pain and she was free from infection even on 20.07.2015 when the first consultation made by her with Soundarapandian Hospital. And referred to papers presented at the 2010 meeting of the musculoskeletal infection society,, regarding Definition of Periprosthetic Joint Infection, “Is there a consensus?” authored by Javad Parvizi MD, FRCS, Christina Jacovides BS, Benjamin Zmistowski BS, Kwang Am Jung MD There is currently no agreement on gold standard for diagnosis of PJI, which are the Symposium. Most important, in this case, the results were negative for infection. And referred to the review article - KSRR - Infection following Total Knee Arthroplasty “Patient factors include poor nutritional state, diabetes mellitus (DM), old age, obesity (body mass index >30”). Filed as reference KSRR- infection following Total Knee Arthroplasty as well as the patient had all these risk factors for infection. In this case the table shows that there was no early post operative infection.Finally referred to Total Knee arthroplasty and infection: how surgeons can reduce the risks EFFORT Open Rev 2016;1: 339-344 DOI: 10.1302 / 2058- 5241.1.000032 (item Filed as reference EFFORT open. The chronic infections are less influenced by the conduct of the Orthopaedic surgeons as they are most often related to haematogenesis diffusion of bacteria. On the above references, there was no infection, 1 month before it was noted that there was no swelling or pain, on 20.07.2015, first appointment with Soundarapandian Hospital. Whole, the first surgery by Opposite party was performed in March 2015. The second surgery by Soundarapandian Hospital was performed on November 2015, 8 months later,the patient could have acquired Infection anytime during these 8 months. The second surgery was not done immediately after 20.07.2015, discharge / subsequent consultations at the Opposite party Hospital as it was not indicated, by the Complainant / Patient that time about existence of any disability what so ever.The patient has not enclosed the bills for Rs. 10,00,000/-.There is no cause of action. The Opposite party has not committed any omission or commission. The alleged loss and damage was not due to any negligence deficiency or action of Opposite party. Hence, the Complainant is to be dismissed.
The Complainant has filed her proof affidavit, written argument and on the side of the Complainant documents marked as Exs.A-1 to Exs.A–12. The Opposite Party filed their Written Version, Proof Affidavit and Written Arguments and on the side of the Opposite Party documents marked as Exs. B–1 to Exs.B–19.
Points for Consideration:-
1. Whether the Opposite Party has committed medical negligence amounting to deficiency of service?
2. Whether the Complainant is entitled for the relief claimed in the Complaint and for any other relief/s?
Point No.1:-
The disputed fact is that the Complainant underwent Knee surgery performed by the Opposite Party. It is also not in dispute that as on 09.05.2015 the Complainant had not suffered any infection or pain, post operation.
The disputed fact is that the Complainant developed infection and approached another hospital, namely, Soundarapandian Hospital on 20.07.2015, where she was advised to undergo Revised Total Knee Replacement surgery, and did the same by spending Rs.10 lakhs at Soundarapandian Hospital.
The main issue for consideration is that whether there was a medical negligence committed by the Opposite Party Hospital wherein the Complainant suffered complications post-operatively which resulted in her revised total knee replacement by undergoing surgery in another Hospital.
The contention of the Complainant is that she was suffering from severe left knee pain, subsequent to the pain she was approached by the Opposite Party and promised her to cure the pain totally by a knee replacement surgery under the Chief Minister’s Comprehensive Health Insurance Scheme. Believing the promise made, she got admitted on 16.03.2015 in the Opposite Party Hospital and got operated her left knee on 24.03.2015. She was discharged from the Opposite Party Hospital on 28.03.2015, as per Ex.A-1 being the Discharge Summary. As she felt pain in the operated area she attended for checkup on 11.04.2015 and some medicines were prescribed to her, as found in Ex.A-3 being the Consultation Report/Prescription and her Pain got down. On 23.04.2015 went for checkup, again some medicines were prescribed by the Opposite Party, as found in Ex.A-5 being the Consultation Report/Prescription and informed that she was normal and nothing to worry. On 08.05.2015 she went for medical checkup and continued to consult for regular medical checkup with the Opposite Party. Since her pain was unbearable she went to Soundarapandian Hospital, Anna Nagar on 20.07.2015, which is found in Ex.A-8 series in Page No.16 and after diagnosis she was insisted for admission immediately and got admitted on 20.07.2015, on the same day it was found that her left knee got infected. Because of the infection in the operated area, she was unable to bear the pain and got admitted on 20.08.2015 for treatment in Soundarapandian Hospital and after taking several tests she was discharged on 26.08.2015, after pursuing her reports, Soundarapandian Hospital instructed her to undergo Revised Total Knee Replacement surgery and she got admitted on 07.04.2016 and the said surgery was done on 09.04.2016 and was discharged on 18.04.2016. She has spent nearly Rs.10 Lakhs at Soundarapandian Hospital towards medical expenses to restore her left knee or else she would be put in a situation where her left knee would have been totally removed. Even though after the operation she is still unable to walk properly leading to a permanent disability. Earlier surgery was done was without properly diagnosing her at an earlier stage, resulted in undergoing for another treatment by spending huge amount, no due care and caution given in treatment of the Opposite Party, resulted her to suffer a lot. It was purely dereliction of duty of the Opposite Party and the deficiency in service, which made her to approach the Legal Aid Service Authority for proper redressal and after scrutiny by the legal Aid Authority, she filed this present complaint. The said acts clearly shows the reckless attitude, negligent act of the Opposite Party and the Opposite Party Hospital’s own records would show that she had regularly taken treatment for the same issue, which were marked as Ex.A-1 to Ex.A-7, further their own documents would prove their deficiency in service which made her a disabled person and had spent money for restoring her knee.
The contention of the Opposite Party is that the allegations of the Complainant were unfounded, untenable, devoid of truth, and not supported or could be buttressed by relevant and genuine documents and there is no breach of duty or act of negligence on the part of the opposite party, they had exercised good care and professional skills in managing the case of the Complainant. They have performed their duty as expected being a prudent institution in similar circumstances. The Complainant presented with severe pain both knees, more in the left knee, it was so severe that her daily activities were affected, she was unable to climb stairs. She was only able to attend toilet and was otherwise bed ridden, as per the Opposite party Record of the Orthopaedic Surgeon who examined the Complainant on 16.03.2015, as found in Ex.B-1. The concerned Orthopaedic surgeon, as chosen by the Complainant, referred her to the Opposite party for admission and surgery. As per the In-Patient (IP) case sheet dated 16.03.2015, the Complainant is a diabetic on oral hypoglycaemic agents and poorly controlled and HBA1C level at 7 at the time of admission, hypertension & coronary heart disease and on medication, TLIF spine surgery for L4-L5 intervertebral disc prolapse done in MIOT Hospital. Further contended on examination the Orthopaedic surgeon had noted bilateral medial joint line tenderness, associated with pain and spasms, medio lateral & Antero posterior instability. Old scar in spine present, SLR both legs free. No distal neuro vascular deficit. Knee jerk ++, ankle jerk ++. Further contended on the course of treatment given to the Complainant referring Ex. B-2 series, containing In-Patient record, Consent Form for admission, Patient evaluation, Summary sheet from 16.03.2015 to 29.03.2015, Consent for operation, Anaesthetics and other medical services, etc.,. Further contended that Ex.A-7 being the Consultation Report dated 09.05.2015 would show that the surgery had an excellent outcome of the planned procedure. Further contended that Intra operative good surgical technique was followed by the surgical team, correct component positioning and alignment achieved, meticulous standard technique (Opposite party site used, sterile draping set used, pulse lavage used) was followed. Surgery completed in 2 hours time, as scheduled, meticulously closed, drain was placed and wound closed in layers. As the post operative period was uneventful, the Complainant / patient was made to stand on the second day and mobilized with walker support and brace and later discharged on 29.03.2015. The Complainant was advised to review by the concerned orthopaedic surgeon on 01.04.2015, as found Ex.A-1. But however the Complainant came on 04.04.2015, as found in Ex.B-1 in page No.2. The Complainant was medically followed-up regularly, by the concerned Orthopaedic surgeon, after discharge in the out-patient department and was advised correctly regarding medication and physiotherapy, but she failed to correctly consult the concerned orthopaedic surgeon on time, while proper follow up is essential.
Further contended that thereafter, the Complainant alleges that her pain was not relieved after surgery at the Opposite party, she consulted Soundarapandian Hospital where she was informed that her left knee was infected, where she had undergone surgery after 8 months and now claims to be have been cured. Further, the Opposite party was summoned by the Tamil Nadu State Legal Services Authority, High Court of Madras campus, for an enquiry and Redressal of the Complainant’s grievance, to come with necessary document on 14.06.2017, as found in Ex.B-3. The papers pertaining to laboratory reports and other documents issued by M/s.Soundarapandian Hospital were furnished to this Opposite party, which were deliberately suppressed by the Complainant before this Hon’ble Forum when filing this complaint and hence the same were filed along with their version which would clearly show the falsity of the Complainant’s case.The two major complaints of the Complainant were pain in the left knee and infection following surgery and the same were denied and shall disprove them by means of documents as furnished by the Complainant / patient to establish that they were not in any way negligent. The Opposite Party has only provided the ancillary facility as required of a hospital and the Orthopaedic surgeon has conducted the surgery as per the Complainant’s choice, in the presence of the anaesthetist as chosen by the Complainant / patient and specifically denied that the Opposite party had approached the complainant and given her promise of total cure. It was the Complainant who attended the medical camp on 16.03.2015 and the Complainant / patient had chosen the concerned orthopaedic surgeon to undergo surgery as well as the hospital to do the surgery. Thereafter she got admitted with the Opposite party. No doctors give any guarantee in treatment as alleged; because medical science is an imperfect science and they did not make any such promise as alleged. It is true that she got operated on 24.03.2015, with the consent of the Complainant and her husband Mr.Khaleel Ahmed, the allegations of the Complainant that she was feeling pain over the operated are after discharge on 28.03.2015, whereas the Complainant actually got discharged on 29.03.2015. The Complainant states that she came for review on 11.04.2015, the Opposite party did not prescribe any medicine as stated by the Complainant it was the concerned Orthopaedic surgeon who had done so. This was similarly done so on 23.04.2015 and on 09.05.2015, not 08.05.2015 as stated, as found Exs.A-5 and Ex.A-7. Further Contended that in fact, the complainant was in good health and was walking comfortably, even without any walker,she did not have infection when she was discharged till last follow up, with the Opposite Party, as per the records filed by Complainant. They have filed the out-patient records maintained during the reviews attended by the patient as ound in Ex.B-2 series, hencethe dates of reviews mentioned in the Complaint by the Complainant are partly wrong, as review dates were 04.04.2015, 11.04.2015, 23.04.2015 and 09.05.2015. on 11.04.2015, patient was advised to come on 17.04.2015, but she attended only on 23.04.2015. On 09.05.2015 patient was advised to come on 30.05.2015, but she did not come back at all, whereas she consulted Soundarapandian hospital only on 20.07.2015. The infrequent visits and the long interval before the review and missed consultations denote that the Complainant / Patient was fine and was not having any complaints of health in the interim period. She was given prescription “hexilac” ointment, which is used only after the wound has healed and a scar is formed, which is used for scar softening, in support of the same Ex.B-5 was marked, being Copy of HexilacOinment literature. Further the Prescription dated 09.05.2015 marked as Ex. A-7 would clearly show that patient was given prescription when wound (scar) was noted to be healthy – (No infection). Range of Movement (ROM) is good – 0 to 100 degree patient was able to do Straight Leg Raising (SLR). This denotes that the whole injury has been cured and she does not require a knee brace anymore to walk. More over as planned suture removal done on 11.04.2015, then the wound condition was good, as found in Page No.3 of Ex.B-1, later again on review on 23.04.2015 her pain was much better, as found in Page No.4 of Ex.B-1, and came walking with brace and walker & again on last consultation on 09.05.2015 with the concerned orthopaedic surgeon complainant was pain free, walking well outside the home also, her scar was healthy, there was no extensor lag, ROM (range of motion) 0-110* pain free, patella tap negative and was also able to walk up and down the stairs few steps, as found in Page No.5 of Ex.B-1 and as per the assessment it was a good result. She was advised walking and exercise which would be advised only when the Patient has fully recovered. The antibiotics were stopped on 09.05.2015 in view of her full recovery and denoting there is no infection. Even her post operative x-ray taken on 24.03.2015, marked as Ex.B-7, shows good implant position and her post operative wound was clean and had healed well. Even the Complainant in the feed back sheet had reported that she was happy with the result as evidenced from the satisfactory letter and the same was marked as Ex.B-9. The letter issued by Dr.Sivamurugan dated 06.06.2016 wherein it is stated that Complainant had swelling since only one month duration before, asevidenced from Page No.35 of Ex.A-8, and the same was also found in the patient report given by Dr.Ravisubramanian on 20.07.2015, as evidenced from Page No.35 of Ex.A-8. Further Contented that henceit would be clear that till 09.05.2015 the last day of consultation with the concerned orthopaedic surgeon she did not suffer from any infection,it would also be clear that the consultation with another hospital was made only after a lapse of 2 and half months i.e., from 09.05.2015 to 20.07.2015, wherein it was mentioned that Pain since 1 month, which would show that she was not having any pain or discomfort before July 2015. Further it has to be noted that she was not taking any antibiotics during 09.05.2015 to 20.07.2015 and she was not prescribed any such antibiotics for any infection by the subsequent doctors with whom she consulted after discharge from the Opposite party Hospital. Even in the certificate issued by Soundara Pandian Hospital states that the Complainant had infected TKR left knee from 20.07.2015, when that was so, no antibiotics administered or prescribed for alleged infected TKR left knee, which was also evidenced from Ex.A-11 being Prescribed Medications dated 28.07.2015, given by Soundarapandian Hospital to the Complainant. And the reports of the Complainant taken at Soundara Pandian Hospital, the sample report dated 21.07.2015 marked as Ex.B-4 found in Page No.36, would show that neither White Blood Cell (WBC) nor any organism was seen, when she is not on antibiotics and also AFB stain negative and culture and sensitivity is negative, even when she was not on antibiotics. Further the sample report dated 21.08.2015 marked as Ex.B-4 found in Page No.37,being the Lab report, of tissue biopsy taken from the Knee joint after one month, which also show no growth of any organism, even when she was not on antibiotics. Only Polymorph cells was elevated in borderline to 69 as against reference value between 40 – 65. The Lymphocytes count were normal, which means only by that time when an acute inflammation is set in. If the infection was for last four months then the lymphocyte count would have been elevated,as evidenced from Page No.34 of Ex.B-4,being the Lab report.And the Opposite Party relied on the academic sources by referring extract in the “Utility of Serological Markers for Detecting Persistent Infection in Two – Stage Revision Arthroplasty in Patients with Inflammatory Arthritis”, extract from the Journal of Arthroplasty, copyright @ Elsevierr Inc-Given in 2nd page – 18 line, as found in Ex.B- No.10, wherein it was mentioned that a Patient was considered positive for infection when one of the following existed: 2 Positive Periprosthetic cultures with Phenotypically identical organisms a sinus tract communicating with the joint, or 3 of the following minor criteria; (i) Elevated serum CRP(>1mg/dL) and ESR (>30mm/hr), (ii) Elevated synovial fluid white blood cell count (>3000/L), (iii) Elevated synovial fluid polymorphonuclear neutrophil percentage (>80%). Positive histology (>5 neutrophils per high power field in 5 high power fields), Or a single positive culture in periprosthetic tissue/synovial fluid. It is submitted that none of the major criteria is full filled and half minor criteria (only Erythrocyte sediment rate (ESR) is fulfilled whereas three minor criteria should get full filled to denote INFECTION as per the journal quoted. Hence it could be concluded that no infectious disease specialist is involved despite in doubt, which would show that it was not proven infection in the instant case. Further, most importantly as first report is negative & only the second report is positive, as ASO (Anti Streptolysin O titer) is positive in 2nd Lab report dated 31.12.2015, found in Page No.39 in Ex.B-4, which indicates recent infection, as found in Lab report of Soundarapandian Hospital. Further relied on reference to International Journal of Infectious Diseases (2009) 13, 421424 Use of Serum Antistreptolysin 0 titers in the microbial, marked as Ex.B-11. And further reference made as per academic Journals, quoting the definition of Periprosthetic Joint Infection authored by JavedParvizi MD, FRCS, Christina Jacovides BS, Benjamin Zmistowski BS, Kwang Am Jung MD published online : 13th July 2011, The Association of Bone and Joint Surgeons 2011,marked as Ex.B-12. Clin OrthopRelat Res (2011) 469:3022-3030 as given in inner Page 4, marked as Ex.B-18. And Finally referred to Total Knee arthroplasty and infection: how surgeons can reduce the risks EFFORT Open Rev 2016;1: 339-344 DOI: 10.1302 / 2058- 5241.1.000032 (item Filed as reference EFFORT open. The chronic infections are less influenced by the conduct of the Orthopaedic surgeons as they are most often related to haematogenesis diffusion of bacteria, marked as Ex.B-19. Hence contended that on the above references, there was no infection, 1 month before it was noted that there was no swelling or pain, on 20.07.2015, first appointment with Soundarapandian Hospital. Whole, the first surgery by Opposite party was performed in March 2015. The second surgery by Soundarapandian Hospital was performed on November 2015, 8 months later, the patient could have acquired Infection anytime during these 8 months. The second surgery was not done immediately after 20.07.2015, discharge / subsequent consultations at the Opposite party Hospital as it was not indicated, by the Complainant / Patient that time about existence of any disability what so ever. And further contended that from the description of treatment/diagnosis of the Complainant is that there was no draining sinus, intra operative purulence as there was no WBC in gram stain only RBC present, No positive cultures – in spite of 3 repeat cultures at varying intervals, Not acute as more than 4 months passed, as minor criteria only ESR positive, no fluid WBC or Polymorph count is qualifying for this step. Hence as per the latest recommendations of the Anthroplasty Surgeons, knee was not infected at presentation – ASO was negative then and later turned to be positive as the body produced the antibodies. The Opposite Party further contended that they had taken extra care to avoid infection to the Complainant referring the Ex. B-13 from 06.01.2015 to 27.04.2015, being the Copy of Register extracts of Autoclaving, Ultra Violet light, formalinevaporizer autoclaving stickers, Ex.B-14 dated 27.03.2015, being Copy of Pharmacy Bills, Ex.B-15, being Copy of Swab test report of operation theatre, Ex.B-16, being Copy of operation theatre, Laminar flow photo and tetramed surgical report, and Ex.B-17 copy of Return Medical Bill. And the Opposite contended that the Complainant had no infection as on 09.05.2015, much less had any pain and she was free from infection even on 20.07.2015 when the first consultation made by her with Soundarapandian Hospital.The patient has not enclosed the bills for Rs. 10,00,000/- in support of her cclaim. There is no cause of action to maintain the Complaint. The Opposite party has not committed any omission or commission. The alleged loss and damage were not due to any negligence deficiency or action of Opposite party.
On perusal of the documents filed on both side as well as on careful reading of the Complaint and the Written Version, the Opposite Party had performed Knee surgery to the Complaining was only after explaining the advantages and disadvantages on performing the surgery based on the complications suffered by the Complainant and on consent obtained from the Complainant and her Husband, as found in Ex.B2 in page No.12, they have performed the surgery on left knee following the medical procedures and had successfully performed surgery and the complainant was able to stand on the second day of the surgery using walker and they have followed post-operative procedure and treated the Complainant with utmost care and caution, as found in Ex.B-2 being the Copy of In-Patient record of the Complainant maintained by the Opposite Party, Ex.B-5 being the Copy of hexilac literature prescribed post operation, Ex.B-7 dated 24.03.2015 being post operative X-ray and report, Ex.B-9 dated 28.03.2015 being the satisfactory letter given by the Complainant and Ex. B-13 from 06.01.2015 to 27.04.2015, being the Copy of Register extracts of Autoclaving, Ultra Violet light, formaline vaporizer autoclaving stickers, Ex.B-14 dated 27.03.2015, being Copy of Pharmacy Bills, Ex.B-15, being Copy of Swab test report of operation theatre, Ex.B-16, being Copy of operation theatre, Laminar flow photo and tetramed surgical report, and Ex.B-17 copy of Return Medical Bill. The Opposite Party had also advised the Complainant for regular post-operative check up and discharged the complainant on 28.03.2015 as found in Ex.A-1. Even the first Checkup schedule on 01.04.2015 was not attended by the Complainant, as evidenced from Ex.A-1 and Ex.B-1, and even as per Ex.A-5 dated 23.04.2015 being the Consultation report the Complainant was advised to attend the Checkup on 06.05.2015, but the Complainant had attended only on 09.05.2015 as evidenced from Ex.A-7, which were totally against the advice of the Opposite Party, the Complainant would have been strictly followed the advice post operation of the Opposite Party. Further as per Ex.A-7 the Complainant was advised to visit for checkup on 30.05.2015, instead of attending the same she had consulted on 20.07.2015 with another hospital, namely, Soundarapandian Hospital, and on the same day got admitted for treatment. As pointed out by the Counsel for Opposite party referring Ex.B-4 running from page Nos.34 to 40, which documents were submitted to be produced in the Proceedings filed by the Complainant before legal Aid Service Authority, would clear establishes and proves that till 20.07.2015 there was no infection in the operated area as alleged by the Complainant, though the Complainant was not under antibiotics and further no antibiotics has been prescribed to subsidise the infection by Soundarapandian Hospital as evidenced from Ex.A-11 in page No.47 being the Prescribed Medications dated 28.07.2015 given by the said Soundarapandian Hospital.Hence, it is clear that even otherwise there was no result of any kind of infections developed in her left knee as on 09.05.2015 the last date when the Complainant visited for Checkup with the Doctor of the Opposite Party Hospital or thereafter either before 28.07.2015 or till 31.12.2015 when the 2nd Lab Report taken at Soundarapandian hospital. Further, the reports of the Complainant taken at Soundara Pandian Hospital, the sample report dated 21.07.2015 marked as Ex.B-4 found in Page No.36, would show that neither White Blood Cell (WBC) nor any organism was seen, when the Complainant was not on antibiotics and also AFB stain negative and culture and sensitivity is negative, even when she was not on antibiotics. Further the sample report dated 21.08.2015 marked as Ex.B-4 found in Page No.37, being the Lab report, of tissue biopsy taken from the Knee joint after one month, would clearly show no growth of any organism, even when she was not on antibiotics. But, only Polymorph cells was elevated in borderline to 69 as against reference value between 40 – 65, the Lymphocytes count were normal, which would prove that an acute inflammation was set in only by that time. If the infection was for last four months then the lymphocyte count would have been elevated, as evidenced from Page No.34 of Ex.B-4,being the Lab report. To disprove the infection developed post operation because of the surgery performed with dereliction of duty by the Opposite party, reliance were made by the Opposite Party on the academic sources by referring extract in the “Utility of Serological Markers for Detecting Persistent Infection in Two – Stage Revision Arthroplasty in Patients with Inflammatory Arthritis”, extract from the Journal of Arthroplasty, copyright @ Elsevierr Inc-Given in 2nd page – 18 line, as found in Ex.B- No.10, wherein it was mentioned that a Patient was considered positive for infection when one of the following existed: 2 Positive Periprosthetic cultures with Phenotypically identical organisms a sinus tract communicating with the joint, or 3 of the following minor criteria; (i) Elevated serum CRP(>1mg/dL) and ESR (>30mm/hr), (ii) Elevated synovial fluid white blood cell count (>3000/L), (iii) Elevated synovial fluid polymorphonuclear neutrophil percentage (>80%). Positive histology (>5 neutrophils per high power field in 5 high power fields), Or a single positive culture in periprosthetic tissue/synovial fluid. Based on the said journal, it is argued that none of the major criteria is full filled and half minor criteria (only Erythrocyte sediment rate (ESR) is fulfilled whereas three minor criteria should get full filled to denote INFECTION as per the journal quoted, further relied on reference to International Journal of Infectious Diseases (2009) 13, 421424 Use of Serum Antistreptolysin 0 titers in the microbial, marked as Ex.B-11. And further reference made as per academic Journals, quoting the definition of Periprosthetic Joint Infection authored by JavedParvizi MD, FRCS, Christina Jacovides BS, Benjamin Zmistowski BS, Kwang Am Jung MD published online : 13th July 2011, The Association of Bone and Joint Surgeons 2011,marked as Ex.B-12. Clin OrthopRelat Res (2011) 469:3022-3030 as given in inner Page 4, marked as Ex.B-18,and Finally referred to Total Knee arthroplasty and infection: how surgeons can reduce the risks EFFORT Open Rev 2016;1: 339-344 DOI: 10.1302 / 2058- 5241.1.000032 (item Filed as reference EFFORT open), marked as Ex.B-19, wherein it is mentioned that “The chronic infections are less influenced by the conduct of the Orthopaedic surgeons as they are most often related to haematogenesis diffusion of bacteria”.
On considering the facts and circumstances of the case in hand, this Commission holds that the Complainant who had failed to take proper care and caution without following the advice of the Opposite Party in attending the regular check-ups and further the second surgery was performed on 09.04.2016, though initial consultation was made on 20.07.2015 with Soundarapandian Hospital after first surgery performed on 24.03.2015 by the Opposite Party, which is after a period of more than one year from the initial surgery and also more than 8 months from the date of advice given by Soundarapandian Hospital, during which period she would have developed infection without her proper due care and attention on her health. Further the complainant had not proved any deficiency of service or dereliction of duty committed by the Opposite Party, when the burden of proving medical negligence is on the part of the Complainant and the Complainant had nowhere in the Complainant had averred about the duty taken care for the treatment given to her was without due care, about dereliction of duty committed by doctors or the Hospital, about damages caused to her because of surgery performed by the Opposite party, about the direct relation or connection for development of infection sustained by her, that resulted her to undergo another surgery of Knee replacement. Further following the Principles laid by the Hon’ble Supreme Court in Civil Appeal No.1385 of 2001 in Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & others, delivered on 10.02.2010, as well as Judgment passed in AchutraoHaribhaoKhowda& Others Vs State of Maharashtra & Others, reported in 1996 SCC (2) 634, the Complainant had failed to prove the gross negligence committed by the Opposite Party or its doctor/s and the course of action in performing the Surgery at the Opposite Party Hospital is not medically admissible.
Hence, this Commission is of the considered view thatin the instant case,the medical negligence could not be attributed against the Opposite Party Hospital and/oragainst the doctor/s, though doctor/s who had performed the surgery had not been made as parties to the proceedings, when the Opposite Party had proved that they had acted with due care and caution through their Doctor/s who performed the surgery to their ability, so either the Opposite Party or the doctor/s cannot be made liable when the Complainant had failed to prove the Surgery performed was not acceptable to the medical profession, the Opposite Party hadnot committed any medical negligence and there was no dereliction of duty committed by the Opposite Party.
POINT No.2:-
As discussed and decided point no.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the Complaint.
In the result, the Complaint is dismissed. No costs.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 11th day of July 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 28.03.2015 | Discharge Summary |
Ex.A2 | 04.04.2015 | Consultation Report |
Ex.A3 | 11.04.2015 | Consultation Report |
Ex.A4 | 13.04.2015 | Consultation Report |
Ex.A5 | 23.04.2015 | Consultation Report |
Ex.A6 | 08.05.2015 | Consultation Report |
Ex.A7 | 09.05.2015 | Consultation Report |
Ex.A8 | 20.07.2015 – 06.06.016 | Out Patient Bill Series |
Ex.A9 | 24.07.2015 | Final IP Bill |
Ex.A10 | - | Pharmacy Bill Series |
Ex.A11 | 28.07.2015 – 03.10.2015 | Prescribed Medications |
Ex.A12 | 01.01.2016 | Discharge Summary |
List of documents filed on the side of the Opposite Party :-
Ex.B1 | - | Copy of out patient record |
Ex.B2 | - | Copy of in-patient record |
Ex.B3 | 14.06.2017 | Copy of Tamil Nadu State Legal Services Authority, High Court of Madras, enquiry |
Ex.B4 | - | Copy of Soundarapandian Hospital Lab Report |
Ex.B5 | - | Copy of hexilac ointment literature |
Ex.B6 | - | Copy of text book of rockwood |
Ex.B7 | 24.03.2015 | Copy of post operative X-ray and Report 24.03.2015 |
Ex.B8 | 28.03.2015 | Copy of operated area photo |
Ex.B9 | 28.03.2015 | Copy of satisfactory letter by the patient dated 28.03.2015 |
Ex.B10 | - | Copy of text book of utility of serological markers for detecting persistent infection |
Ex.B11 | - | Copy of use of serum Antistreptolysin 0 titers in the Microbial |
Ex.B12 | - | Copy of Definition of Periprosthetic Joint Infection |
Ex.B13 | - | Copy of register extracts of Autoclaving, Ultra Violet light, formaline vaporizer autoclaving stickers |
Ex.B14 | - | Copy of Pharmacy Bill |
Ex.B15 |
| Copy of swab test report of Operation theatre |
Ex.B16 |
| Copy of Operation theatre,Laminar flow photo and tetramed surgical report |
Ex.B17 |
| Copy of Return Medicine Bill |
Ex.B18 |
| Copy of KSRR – infection following Total Knee Arthroplasty – Journal reference |
Ex.B19 |
| Copy of reference Effort open – Journal reference |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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