DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 16th day of July 2016
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 16/03/2013
: Sri.V.P.Ananatha Narayanan, Member
(C.C.No.55/2013)
Mariya Selvaraj
S/o.Rajagopalan,
Kanalpirivu,
Uppukuzhi, Pampampallam
Kanjikkode, Palakkad District - Complainant
(By Adv. K.Dhananjayan)
V/s
1.M/s.Palakkad District
Co-operative Hospital and
Research Centre, No.P.878,
Court Road, Palakkad – 678 001
2.The Managing Director
M/s.Palakkad District
Co-operative Hospital and
Research Centre, No.P.878,
Court Road, Palakkad – 678 001
(By Adv.Ramesh)
3.Dr.C.Mohanan,
Ortho Surgeon working as Ortho Surgeon,
M/s.Palakkad District
Co-operative Hospital and
Research Centre, No.P.878,
Court Road, Palakkad – 678 001 - Opposite parties
(By Adv.V.K.Venugopalan)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
Complainant was a head load worker who is having membership in the head load workers union at Kanjikode. He was the breadwinner of his family consisting of wife and 3 daughters. On 21/12/2011, the complainant fell down from a tree and was admitted in 1st opposite party hospital which is run administered and managed by 2nd opposite party. On the investigation and clinical examination it was found that his right arm had been fractured. So he was admitted for treatment in 1st opposite party hospital as inpatient and was treated by the 3rd opposite party. On 21/12/2011 itself 3rd opposite party had conducted an emergent surgery on the complainant which is known as K-wire fixation.
Afterwards the complainant was under treatment as inpatient of opposite parties till 27/12/2011. But instead of feeling comfort and relief, the complainant had the complaint of severe pain and discomfort. All his traumas have been duly intimated to the opposite parties. Complainant submitted that instead of providing best treatment they have discharged the complainant forcefully on 27/12/2011 and referred him to Govt.Medical college hospital, Thrissur on the suspicion of having and developing Gas Gangrene on his right arm above elbow for further management and treatment.
Before conducting surgery to his treatment the opposite parties have conducted all clinical, Pathological tests and examination. At that time nothing wrong or suspicion was noticed by the hospital. But after the surgery i.e. on 21/12/2011 within 6 days itself he has developed Gas Gangrene. This has occurred only due to the severe carelessness and deficiency in service committed by opposite parties.
Complainant submitted that the Gas Gangrene infection could be infected into a patient’s body predominantly of two reasons 1) due to high level of blood sugar / glucose and high cholesterol etc. and 2) when a wound is exposed or its effected with a wound, if at the time of surgery, if the surgical apparatus, equipments or any of the instruments concerned is of not having properly dis-infected and unhygienic and not sterilized properly, there is every possibility of developing gas gangrene. The case of such a severe mis-happening is only due to the severe carelessness and negligence while treating him by all opposite parties. Therefore all the opposite parties are separately, jointly and severally liable to compensate the complainant for the deficiency of service committed by them.
When the situation became worse from bad and as he was compulsorily been discharged from the opposite parties hospital, he went to Govt.Medical College Hospital, Mulankunnathukavu, Trichur. There he was treated by expert doctors in the Department of Orthopedics, Medical College Hospital, Trichur and in order to save his life he had to undergo disarticulation of right shoulder. He is now above elbow amputee. The above surgery was done on 28/12/2011. Thereafter he had been treated as an inpatient till 25.1.2012. The complainant had spent approximately Rs.75,000/- for the surgery, expenses for the laboratory test and other allied expenses.
But as his right arm is amputated, his earning capacity was reduced to 40%. He became disabled and his disability would be around 40%. By amputating his right arm he has lost his earning nearly 100%.
Complainant submitted that the entire cause of mishap is only due to the use of unhygienic and un-sterilized medical equipments and apparatus and even the possibility of using non suitable injections such as IV fluids, tablets, medicines etc. administered on him without proper diagnosis and without taking sample test doze is the reasons of happening such mishaps.
The complainant had paid Rs.4,000/- as an advance amount vide bill No.73542 to the opposite parties hospital, as the consideration of the treatment and that has been received by the opposite parties 1 and 2 for and on behalf of the 3rd opposite party also. The complainant has promised to settle the bills also.
The complainant has sent a lawyer notice to all the opposite parties, demanding to pay Rs.10,00,000/- to him for the acts, omissions and deficiency of service committed by opposite parties. All the opposite parties have received the notice. Opposite parties 1 and 2 have sent a reply through their advocate denying all the allegation, statements and averments. The medical records given by opposite parties are not at all legible to read or grasp anything. The opposite parties have virtually pushed the life of complainant into obscurity and melancholy. Therefore the complainant is legally entitled to get Rs.20 lakhs as compensation from the opposite parties 1 to 3. As the 3rd opposite party is working under the management of 1st and 2nd opposite parties and opposite parties 1 and 2 are the masters and employers of 3rd opposite party all of them are jointly and severally liable to compensate the complainant.
Complainant prays for an order directing opposite parties 1 to 3 to pay an amount of Rs.20,00,000/- as damages for their medical negligence and deficiency of service and also to pay the cost and other expenses of this litigation to the complainant.
Complaint was admitted and notices were issued to opposite parties. All the opposite parties entered appearance through their counsel.
1st and 2nd opposite parties filed version contending the following:
Compliant is not maintainable in law or facts of the case. The 3rd opposite party immediately examined the complainant, it was found that he had open dislocation of right elbow with lacerated injury on arterial aspect of forearm exposing bones and communicated fracture of lower end of radius on both sides. The wound size was badly contaminated. The third opposite party gave proper treatment to the complainant. The 3rd opposite party and nursing staff had given maximum care and attention to the complainant. The complainant underwent all necessary pre-operative investigation and found fit for surgery. The 3rd opposite party had explained the pros and cons of the surgery to complainant and bystanders and with consent the 3rd opposite party had conducted surgery with most care and attention. The 3rd opposite party treated the complainant with due diligence and care following the medically accepted standards and procedures. The 3rd opposite party and nursing staff had seen the complainant after the surgery several times a day. These opposite parties operation theatre is most hygienic and the equipments used in the surgery are properly sterilized pre and post operation stages.
The opposite parties further contended that the Palakkad District Co-operative Hospital and Research center is one of the eminent hospitals amongst the Co-operative sector in Kerala. When the complainant had developed high fever, nursing staff informed the 3rd opposite party immediately and on examination of complainant he was noted to have symptoms of infection. On the same day the puss collected from the wound sent for pathological test and meanwhile he was started on higher antibiotics and supportive medicines. The complainant continued to have pain and also developed enabled to move fingers of his right hand. The third opposite party had diagnosed that complainant had shown symptoms of infective gangrene and immediately referred the complainant to higher center for further management after informing the complainant and his bystanders about the diagnosis. There was no deficiency of service or carelessness on the part of these opposite parties at any point of time in the treatment of the complainant and also non negligence or lack of timely diagnosis of 3rd opposite party and hence opposite parties are not liable to compensate. The allegation that gas gangrene was developed only due to the severe carelessness and negligence in the treatment by all opposite parties and that they are all directly responsible for the same is absolutely unfounded and unsustainable and hence denied.
Complainant was discharged for the purpose of reference to higher centre for better management and 3rd opposite party given detailed reference letter addressed to the orthopedic department at Medical College Hospital, Thrissur. The occurrence of gas gangrene is attributable to the severity and contamination of the traumatic injury causing disruption of blood supply to the affected area and patients with underlying blood vessel disease as well as diabetes are prone to the risk of developing gas gangrene. The expert doctors at Medical College took quick decision for disarticulation immediately on admission implies the fact that the spreading of infection in Gas Gangrene is not completely preventable by medical measures as it is fast progressing life threatening situation.
The 3rd opposite party had conducted surgery in strict sterile condition and gas gangrene was caused by the entry of the infective anaerobic organisms which is not connected to the treatment modality or medicines administered or sterilized equipments. During the period no other case of gas gangrene was reported in the hospital also pinpoints source of ineffective organism is not operation theatre acquired. The first and second opposite parties are not liable to compensate the complainant either jointly or severally. Hence the complaint is liable to be dismissed.
3rd opposite party filed version contending the following:
The complaint is not maintainable either in law or on facts. The complainant came to the first opposite party’s hospital at about 12.00 PM on 21/12/2011 and consulted the 3rd opposite party in the OPD with history of fall from tree. On examination he had open dislocation of right elbow with lacerated injury on anterior aspect of forearm exposing the bones and comminuted fracture of lower end of radius on both sides. Wound site was badly contaminated. Fracture of lower end of left radius was reduced by closed manipulation with a plan for debridement and fracture fixation of the right forearm and started on IV antibiotics and fluids. The complainant underwent all necessary pre-operative investigations and found fit for surgery. The third opposite party had explained the pros and cons of open reduction and internal fixation and with consent he was taken up for surgery at 4.00PM on 21/12/2011. Under all aseptic care and precautions the wound and forearm was thoroughly cleaned and debrided and dislocation reduced under anaesthesia and wound closed. The facture of lower end of the right radius was reduced under C-arm guidance and fixed with percutaneous K-wires. POP slab was applied and post operatively he was put on inj. Taxim and Amikacin along with NSAIDS.
The 3rd opposite party had seen the patient twice a day and post operatively he had no complaint of pain or fever for two days and finger movements were found good. On 24/12/2011 dressing changed and the wound was found clean. On 26/12/2011 the complainant had developed high fever and on examination of wound he was noted to have signs of infection. Puss collected from the wound was sent for culture and sensitivity and he was started on higher antibiotics and supportive medicines. The complainant had distal circulation and finger movements at that time. In spite of timely management with proper antibiotic prophylaxis, the complainant continued to have pain and also developed inability to move fingers of right hand. At the time patient had shown slowly signs of infective gangrene he was immediately referred to higher centre for further management after informing the complainant and his bystanders about the diagnosis. The gas gangrene is a rare as well as suddenly emerging life threatening condition caused by the bacterium clostridium, perfringens which is found everywhere and the infection is opportunistic. The symptoms of gas gangrene begin quickly and worsen suddenly. Its management as per accepted medical practice includes debridement of affected issues, antibiotic therapy to control infection, amputation to prevent spread of infection etc. The occurrence of gas gangrene is attributable to the severity and contamination of the traumatic injury causing disruption of blood supply to the affected area and patients with underlying blood vessel disease as well as diabetes are prone to the risk of developing gas gangrene. As it is rare and suddenly emerging complication, no medical practitioner can anticipate and prevent its occurrence by any degree of care and expertise for the sole reason that it is accelerated by factors beyond the control of the treating doctor. The 3rd opposite party had treated the fracture caused to the complainant with due diligence and care following medically accepted standard procedures as per the accepted medical practice. The patient had been under proper antibiotic cover from the beginning of the treatment and he had shown manifest symptoms of infection admittedly on 26/12/2011 and immediately puss was sent for culture and sensitivity and higher antibiotics started. The occurrence of gas gangrene was diagnosed at the early stage and all the necessary care and treatment recommended for its management were provided to the complainant. But due to the inherent fast spreading nature of the infection and severity of the disease condition, disarticulation was necessitated to save life of the patient. There was not negligence or carelessness on the part of the third opposite party at any point of time in the treatment of the patient and he is not liable to compensate the complainant.
The amount quantified as compensation is highly exorbitant, exaggerated and without any substance, merit or rationale behind it. The 3rd opposite party is having qualification with experience of 32 years as a consultant Orthopedic Surgeon.
Complainant and opposite parties filed their respective chief affidavits. Ext A1 to A11 marked from the side of the complainant. Complainant was cross examined as PW1, complainant’s wife was examined as PW2 and expert doctor was examined as PW3 and treated doctor was examined as PW4. Ext B1 series was marked from the side of opposite parties. 2nd opposite party was cross examined as DW1. 3rd opposite party was cross examined as DW2. As per order in IA 291/14 Medical College Hospital Thrissur produced documents which was marked as Ext C1.
The following issues are considered
1.Whether there is any deficiency in service on the part of opposite parties?
2.If so, what is the relief?
Issues 1& 2.
We have perused the documents and oral evidence adduced by both the parties. Opposite parties have not denied either the development of gas gangrene or the amputation of right hand below shoulder. Complainant submitted that the entire cause of mishap is only due to negligent act of opposite parties. After operation, complainant complaints of pain . Allegation of the complainant is that from the date of surgery i.e, 21-12-2011 till the date of discharge i.e. on 27-12-2011, 3rd opposite party doctor had never attended the complainant. Opposite parties denied this allegation stating that 3rd opposite party and their nursing staff had seen the complainant twice a day.
As per the version of 3rd opposite party, on 24/12/2011 dressing was changed and the wound was found clean and on 26/12/2011 the complainant had developed high fever and on examination of wound he was noticed to have signs of infection. On perusal of B1 e (ii) of Ext B1 series, it is revealed that on 23/12/2011 the complainant had pain. It also shows that 23-12-2011 onwards Dolo 650 was given to the complainant. These facts reveal that complainant had severe pain and discomfort till the date of discharge. But the 3rd opposite party and nursing staff ignore the complaint of the complainant. They were not given due care and caution to the complainant.
More over after surgery dressing was changed only on 24th December and 26th December. 3rd opposite party admitted that gas gangrene is a soil born bacteria and the wound site was badly contaminated with soil. In such a situation 3rd opposite party should have taken due care and caution in treating the complainant. As the wound was contaminated and there was very possibility to get infection from the soil, doctor has the duty to change the dressing every day and to see whether there is any infection. In this case 3rd opposite party doctor committed egregious mistake by not cleaning and dressing wound properly. He was aware of the fact that gas gangrene can crop up under such circumstances. He did not take steps to prevent the same. There by 3rd opposite party committed negligence in giving proper treatment to the complainant. Had the 3rd opposite party doctor exercised due care and skill on the very day of his operation, as a result whereof, development of gangrene would have been avoided. As per Ext.C1 medical record issued from Medical College Hospital complainant has been admitted on 27-12-2011 and discharged on 25-1-2012. On the next day of admission his right arm has been amputed from shoulder. It shows that at the very critical stage the complainant was referred to higher centre. This is the negligence, inaction and passivity on his part which caused the amputation of the right hand of the complainant. It is well settled that when the complainant proves on record some prima facie evidence, the onus shifts on to the opposite party. Opposite parties should have to prove that they had taken care and done their duty to repel the charge of negligence. In the present case we are of the view that opposite parties failed to prove their case.
In Ext B1.e (ii) continuation of physical examination there were some insertions done by the 3rd opposite party doctor on the dates 24, 25 and 26 December. 5 days endorsements were done in one page. This creates some doubts that the 3rd opposite party willfully inserted endorsements in this page for concealing his absence from the hospital. If the 3rd opposite party was present on that dates there were no necessity of insertion of endorsement in the continuation of physical examination page. As alleged by the complainant, prescriptions given by 3rd opposite party were not at all legible to read or grasp anything. Complainant has filed IA 269/15 for the cause production of duty register of the doctors. They filed affidavit stating that no such register is maintained in their office. Every hospital should have maintained the duty register of their staff, inpatient and outpatient register. However no documentary evidences are adduced to show that 3rd opposite party was regularly attending the complainant from the date of surgery to the date of discharge. Hence we are of the opinion that 3rd opposite party has failed to prove that he had seen the complainant twice a day.
Besides that, initially 1st and 2nd opposite parties produced some documents which were serially numbered as 1 to 14. At the time of evidence it was noticed that page No. 6,7 and 9 of case sheet were not produced. After that opposite parties 1 and 2 produced photocopies of the missed pages of the case sheet by submitting that originals of those documents were misplaced. This shows that opposite parties are not properly maintaining the medical treatment records of the patient.
Hence we are of the opinion that non maintenance of proper medical records and attendance register of duty doctors amounts to deficiency in service on the part of 1st and 2nd opposite parties.
From the above discussions we are of the view that all the opposite parties committed deficiency in service and negligence in their duty. By the act of opposite parties complainant has suffered physical pain and mental agony and lost his future earning capacity. Complainant submitted that complainant is a headload worker. In order to fix the quantum of compensation nothing is produced to show that at the time of accident he was working as a headload worker. However, opposite parties are liable to compensate the complainant for their negligence in providing proper treatment and for not maintaining treatment records properly.
Under these circumstances we partly allowed the complaint. As the 3rd opposite party is working under the management of 1st and 2nd opposite parties and opposite parties 1 and 2 are the masters and employers of 3rd opposite party, all of them are jointly and severally liable to compensate the complainant. Opposite parties are jointly and severally liable to pay Rs.5,00,000/- (Rupees Five lakhs only) as compensation for mental agony and pain and sufferings and to pay Rs.5,000/- (Rupees Five thousand only) as cost of proceedings.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 16th day of July 2016.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 –Photocopy of lab report dated 21/12/11 issued by 1st opposite party
Ext.A2 – Photocopy of Pre-operative Anaesthesia assessment dated 21/12/11 issued by
1st opposite party
Ext.A3 - Photocopy of consent for operation, anaesthetics and other medical services
signed by wife of the complainant dated 21/12/11
Ext.A4 – Photocopy of Operation notes dated 21/12/11 issued by 1st opposite party
Ext.A5 – Photocopy of History dated 21/12/11 issued by 1st opposite party
Ext.A6 - Photocopy of Weekly report dated 22/12/11 issued by 1st opposite party
Ext.A7 - Photocopy of Discharge summary dated 27/12/11 issued by 1st opposite party
Ext.A8 - Photocopy of Discharge card dated 25/1/12 issued by Dept.of Orthopaedics,
Govt.Medical College, Thrissur
Ext.A9 - Photocopy of Treatment certificate dated 3/2/12 issued by Dept.of
Orthopaedics, Govt.Medical College, Thrissur
Ext.A10 – Copy of Lawyer Notice issued by complainant’s counsel to all opposite
parties alongwith postal receipt and acknowledgement card dated 23/3/12
Ext.A11 - Reply to lawyer notice dated 4/5/2012
Witness examined on the side of complainant
PW1 – Mariya Selvaraj
PW2 – Josephine Jayaram
PW3 – Dr.Krishnakumar
PW4 – Dr.Arun
Witness examined on the side of opposite party
DW1 – K.Manikandan
DW2 –Dr.C.Mohanan
Exhibits marked on the side of complainant
Ext.B1series – Photocopies of relevant pages of case sheet, medical report issued by
1st opposite party
Commissioner Report
C1 – Attested true copy Case Record of Complainant at Medical College Hospital, Thrissur
Cost allowed
Rs.5,000/- allowed as cost of the proceedings.
