COMPLAINT FILED: 28.03.2008<br /> <br /> <br /> <br /> 18th OCTOBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 805/2008<br /> <br /> <br /> COMPLAINANT Sri. G.S. Pradeep,<br /> S/o. Sri. G.S. Shivaprasad,<br /> No. 29-AS, 1st Cross, II Phase,<br /> IV Block, BSK III Stage,<br /> Bangalore – 560 085.<br /> <br /> Advocate (G.R. Prakash)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. M/s. Devaki Hospital Limited,<br /> No. 148, Luz Church Road,<br /> Mylapore,<br /> Chennai – 600 004.<br /> Rep. by its Administrator.<br /> <br /> Advocate (A.K. Mylsamy)<br /> <br /> <br /> 2. Hosmat Hospital,<br /> Magrath Road,<br /> Off. Richmond Road,<br /> Bangalore – 560 025.<br /> Rep. by its Administrator.<br /> <br /> Advocate (Mohammed Sheriff)<br /> <br /> <br /> 3.Prof. Rathnasabapathy,<br /> Consultant,<br /> M/s. Devaki Hospital Ltd.,<br /> No. 148, Luz Church Road,<br /> Mylapore,<br /> Chennai – 600 004.<br /> 4. Dr. Issac Newton Rajkumar,<br /> M/s. Devaki Hospital Ltd.,<br /> No. 148, Luz Church Road,<br /> Mylapore,<br /> Chennai – 600 004.<br /> and also at<br /> 17, Hanumantha Road,<br /> Balagi Nagar, Royapettah,<br /> Chennai – 600 014.<br /> <br /> Advocate (N. Kumar Ravut)<br /> <br /> <br /> 5. Dr. Alfred Rajan,<br /> M/s. Devaki Hospital Ltd.,<br /> No. 148, Luz Church Road,<br /> Mylapore,<br /> Chennai – 600 004.<br /> and also at<br /> No. 2, 5th Trust Cross Street,<br /> Mandavelipakkam,<br /> Chennai – 600 028.<br /> <br /> Advocate (Shreyas Jayasimha)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.19,50,000/- and for such other reliefs on an allegations of deficiency in service and medical negligence. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant met with a road accident in the month of June 2006 in Chennai. Immediately he went to OP.1 hospital for the treatment and he was admitted on 27.06.2006 as an inpatient and was subjected to various examinations including that of x-ray. On investigation it was revealed that complainant has suffered the fracture short oblique fracture lower ¼ tibia and middle 1/3rd fibula left leg. He underwent the surgery at the OP.1 hospital it was done by OP.4 under the assistance of OP.5 and the management of OP.3. During the course of surgery the rods and plates were implanted. Complainant has spent more than Rs.1,00,000/- for the said treatment. Ultimately he was discharged with some advise. Complainant did follow of the advise given by the OP.1 and he was undergoing treatment every month with respect to the said surgery from the specialist in the field. But unfortunately on 19.12.2006 while he was sitting as a pillion rider on a two wheeler driven by his brother he experienced sudden cracking sound in his left leg. Immediately he went to Orthopaedic Specialist Dr. C. Ranganath, again he was subjected to x-ray. At that time it was revealed that implant was broken and fibula was malunited. Then he approached OP.2 hospital on 22.12.2006. On his examination it was diagnosed non-union of let tibia and malunited fibula due to implant failure. Again he underwent the surgery on 23.12.2006. It is all because of the carelessness and negligence of OP.1 and its doctors OP.3, 4 and 5 he has to undergo the second surgery at OP.2. For no fault of his, he was made to suffer both mental agony and financial loss. The surgery conducted to OP.1 hospital doctors was not in accordance with the accepted procedure. Due to the carelessness and negligence of OP.1 and its doctors he has suffered the second injury. Under such circumstances he got issued the notice to OP to compensate him, there was no response. Thus he felt both medical negligence and deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP.1 filed the version denying all the allegations made by the complainant in toto. According to OP.1, OP.3, 4, 5 are not the employees of the hospital, OP.1 provides only infrastructure facility to the said specialist to admit their patient and treat them. So there is no vicarious liability of any kind on the part of the OP.1. There is no allegation with regard to lack of nursing care or infrastructure. OP.4 conducted the said surgery successfully, whatever the charges legally payable are recovered by the OP.1. Neither there is a medical negligence nor deficiency in service on the part of OP.1. It is further contended that the complainant did not accrue any cause of action at Bangalore to file this complaint and the complaint is liable to be dismissed for want of jurisdiction. Among these grounds, OP.1 prayed for the dismissal of the complaint.<br /> <br /> 3. OP.2 filed the version contending that it has conducted the operation on the complainant on 23.12.2006 for removal of implant and fibulectomy was done. There is no specific allegation made against OP.2 either with regard to the deficiency in service or medical negligence. Complaint allegations against OP.2 are bald and vexatious. OP.2 provided all the medical facility as contemplated. Hence they are not liable to pay any compensation as prayed.<br /> <br /> 4. OP.4 and 5 have filed their version mainly contending that they are the specialist and expert in the field of Orthopedic. On examination of the complainant they noticed short oblique fracture lower ¼ tibia and middle 1/3rd fibula left leg and conducted the surgery as per the accepted norms in a medical field. Complainant was advised to come up for the follow up check up after discharge, but complainant failed to keep up the said advise hence he has taken the risk. OP.1 and its doctors came to know of the second operation only when they received the legal notice. They also come to know about the second surgery that too after 6 months from the date of first surgery. The operation conducted by OP.4 and 5 was perfect. Neither there is any medical negligence muchless carelessness. Complainant suffered the second injury and the so called implantation was broken because of his own carelessness and negligence, for that OP.4 and 5 cannot be blamed. The other allegations are false and frivolous. The complaint is devoid of merits. Among these grounds, OP.4 and 5 also prayed for the dismissal of the complaint.<br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP’s have also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 6. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP’s?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 8. At the outset it is not at dispute that the complainant suffered some fracture in the road accident and he took the treatment at OP.1 hospital on 27.06.2006, it was noticed that there was a fracture of tibia and fibula of left leg. The surgery was conducted by OP.4 with a help of OP.5 under the guidance of OP.3 at OP.1 hospital. Closed reduction intra medullary nailing with locking screws was done. A discharge summary issued by the OP.1 is produced. On the perusal of the said discharge summary complainant was asked to follow certain instructions post-operatively (i) namely advised to walk with bilateral axillary crutches, non weight bearing, (ii) advise to keep the leg elevated over 2 pillows when not ambulative, (iii) to activity move the toes, flex the knee and lift the whole of leg while lying down and (iv) to come back for suture removal on the 14th post-operative day.<br /> <br /> 9. Now the crux of the mater is that, whether the complainant has followed the said instructions and went to hospital of OP.1 for the follow up check up as directed. Unfortunately there is no basic proof. So there is no iota of evidence to show that complainant has followed the advise and instructions given by the OP.1 and its doctors. Under such circumstances complainant has to thank himself for any complication he invited because of his own negligence. It is contended by the complainant that he did undertook the treatment every month with respect to the said surgery from the specialist in the field. In which hospital he has taken the post-operative treatment, who is that specialist is not known. The name of the doctor and the hospital is not mentioned so also their affidavit is not filed. Under such circumstances an adverse inference has to be drawn to the extent that complainant is not diligent in following the medical advise.<br /> <br /> 10. It is contended by the complainant that on 19.12.2006 while he was sitting as a pillion rider in a two wheeler driven by his brother he suffered crack sound in the left leg that is nearly after 6 months from the date of first surgery. Whether complainant was fit and permitted to travel on a two wheeler is not known. At what time this accident took place, at what place is not known. So the problem if any faced by the complainant on 19.12.2006 can safely be said that it is out of his own carelessness and negligence. It is further contended by the complainant that he availed the services of one Orthopaedic Surgeon Dr. C. Ranganath. Unfortunately the Dr. C. Ranganath is not examined by the complainant to substantiate his contention. Whether he suffered the said injury due to accident or due to fall is not known. The said breaking of the implant may be for various reasons, may be due to high speed, road conditions or complainant having failed to take proper care.<br /> <br /> 11. Though complainant sustained the said injury on 19.12.2006 he kept mum up to 22.12.2006. What made him to wait for 3 days to approach OP.2 hospital is not known. If Dr. C. Ranganath is of the view that the breaking of the implant and fibia malunit is due to the carelessness of the first surgery, he would have filed an affidavit to that effect. But again there is no corroborative evidence from any expert in the field in that regard. OP.2 hospital on examination of the complainant viewed there is a non-union left tibia and malunited fibia with implant failure. The second surgery was conducted on 23.12.2006. There is no specific allegation made in the complaint against the OP.2 either with regard to medical negligence or deficiency in service muchless claimed any compensation against OP.2. Even the legal notice caused by the complainant is not sent to the OP.2 it is sent to OP.1 only. Under such circumstances we can safely say that there is no actual grievance against OP.2.<br /> <br /> 12. The doctors of OP.2 have never opined that the said implant breaking and malunit fibia is due to the carelessness and negligence of the first surgery. Again no such expert’s evidence in the field is filed. Hence for these reasons we find the allegations of the complainant are all false, frivolous and baseless. OP.1 hospital doctors conducted the surgery as per the accepted norms. The fracture tibia was fixed by implanting intra medullary vein. The fracture once thus fixed will result in union, in course of time provided such progression of union or fusion is assessed under periodic expert follow management. Periodic follow management plays a vital role in the post operative case of the patient.<br /> <br /> 13. On the perusal of the records it can be said that OP.1 and its doctors have conducted the surgery in accordance with the practice as accepted in the medical field. As it is there is no dispute with regard to the qualification, experience and competency of the OP.1 hospital doctors and there is no specific allegation with regard to lack of service, nursing care, etc., by the OP.1. The evidence adduced by OP.1 and its doctors which finds full corroboration with the contents of the undisputed hospital records has remained unchallenged. No such cross-examination is offered to the said doctors. Even interrogatories were not served on them. Under such circumstances we have no other go but to believe the testimony of the OP.1 and its doctors. As against this unimpeachable evidence on behalf of OP’s, the allegations made by the complainant appears to be false and frivolous. To our understanding a complaint regarding medical negligence should allege and support with expert evidence as well as it should reveal what was done which should not have been done or what was not done which should have been done. Unfortunately there is no such averment muchless proof. <br /> <br /> 14. A doctor has discretion in choosing the treatment with regard to ailment and emergency in the better interest of the patient. A Doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field. The evidence has come that OP.4 has acted in accordance with the practice regularly accepted and adopted. Medical negligence is to be established, it can’t be presumed. <br /> <br /> 15. The fact and circumstances of the case before us, show that OP.4 has attended the patient with due care, skill and diligence. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP’s. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. <br /> <br /> 16. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. A surgeon performing surgery is not gifted with an extra-ordinary skill nor he is expected to perform miracles. What is expected of him is whether the procedure followed by him is generally acceptable to the medical profession. The law does not require of a professional man that he be a paragon combining qualities of polymath and prophet.<br /> <br /> 17. In view of the discussions made by us in the above said paras, we find the complainant has utterly failed to prove the allegations of deficiency in service and medical negligence on the part of the OP. Hence he is not entitled for the relief. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 18th day of October 2008.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> p.n.g. <br />