Tamil Nadu

North Chennai

50/2012

Mrs. R.Mahalakshmi, - Complainant(s)

Versus

M/s.vee Care hospital, rep. by managing Director, - Opp.Party(s)

R.Dhanalakshmin-com

21 Nov 2017

ORDER

 

                                                            Complaint presented on:  31.01.2012

                                                                Order pronounced on:  21.11.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 21^st DAY OF NOVEMBER 2017

 

C.C.NO.50/2012

 

 

Mrs.R.Mahalakshmi,

W/o.Late Mr. V.Ravichandran,

New No.9, V.O.C. Street,

Indira Nagar, Chrompet,

Chennai – 600 044.

                                                                                    ….. Complainant

 

..Vs..

M/s. Vee Care Hospital,

Rep. by its Managing Director,

No.106, Jawaharlal Nehru Salai,

Near Koyambedu  Junction,

Thirumangalam, Anna Nagar,

Chennai – 600 040.

.....Opposite Party

Date of complaint                                 : 15.03.2012

Counsel for Complainant                      : M/s. R.Dhanalakshmi & Mr.K.Dilli

                                                                    Babu

Counsel for Opposite Party                      : V.Sounder Rajan

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant claiming compensation towards the mental agony, hardship and pecuniary benefits with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant’s  husband Thiru.V.Ravichandran while he and his brother was riding as a pillion – rider on his motor bike on 04.07.2010 at about 3.15 p.m near Vellappan chavadi they met with an accident and immediately he was brought to the opposite party hospital. The injured had swelling on his right knee and unable to walk. However, he had no external injuries, no bleeding or any grievous injuries and he was very much conscious.

          2. The opposite party after informing the injured and his relatives, that immediate surgery is necessary and after getting consent from his relatives and on the same day the opposite party doctor performed surgery by fixing a plate on his right leg.  After surgery the injured Ravichandran shifted to the ward. While the said injured was under the post operative care of the opposite party, the opposite party’s doctors informed around 5.00 p.m on 08.07.2010 that the patient to be shifted to ICU for further management and thereafter they informed around 6.00 p.m  that the patient V.Ravichandran was died.

          3. The complainant was forced to take her husband’s body from the hospital immediately without furnishing any hospital document to her.   Failure to take care during the post operative period and they allowed the diseased to develop the fat embolism.  The lack of experience on the part of surgeon who performed the surgery is the cause for the development of so called fat embolism. The opposite party’s hospital ought to have expected this development of fat embolism in bicondylar fracture of tibia and should have taken proper steps of line of treatment. The opposite party’s hospital negligently done the procedures even right from making entry in the accident register, obtaining the consent, post surgical treatment procedures adopted by him. The opposite party failed to give due care which resulted in the development of breathing problem within minutes, the complainant husband collapsed. The opposite party failed to notice the problem is a clear negligent act of the hospital in monitoring the patient  .

          4. The opposite party has not provided the records for the treatment of the complainant’s husband, even after she made request to them. After a long struggle by writing letters only, the opposite party provided the document to her. Thereafter the complainant issued legal notice to the opposite party and then filed this complaint claiming compensation towards the mental agony, hardship and pecuniary benefits with cost of the complaint.      

5. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF

          The opposite party admits that the complainant husband met with an accident and thereafter he was admitted in his hospital for treatment on 04.07.2010. On examination the opposite party doctor found that there was diffuse swelling over the right knee and tenderness over proximal tibia. Dr.Sridhar conducted surgery  of closed reduction. The surgery was successful as the fixation was achieved.

          6. After surgery the complainant husband was shifted to post operative ward as his vital parameters are normal and monitored. The patient was on regular oral diet. On 08.07.2010 the patient complained of chest pain breathlessness and collapsed around 5.45 p.m. He was immediately shifted to ICU and oxygenated.  However, the patient did not respond to resuscitation and he was declared dead at 6.30 p.m on the same day.

          7. Dr.K.Selvaraj, M.D., Assistant Professor, Department of Forensic Medicine Kilpauk Medical College, Kilpauk, Chennai – 600 010 and he had certified that the cause of death would appear to be due to fat embolism syndrome. The opposite party issued death certificate on 08.07.2010 with regard to cause of death is Cardiac respiratory arrest, secondary to massive myocardial infarction and massive pulmonary embolism.

          8. The fat embolism syndrome is a known risk in surgery and cause of death is due to cardiac respiratory arrest, secondary to massive myocardial infarction and massive pulmonary embolism, which is an inherent risk in orthopedic surgery. The Surgeon & Anesthetist have exercised adequate skill of a competent doctor in their field. The same is the case with the post operative treatment provided by the opposite party’s hospital. The risk of fat embolism is inherent and it’s setting in and result in cardiac arrest is sudden and spontaneous and not within the control of the opposite party.

9.  The opposite party would state that the best of treatment was provided to the complainant’s husband and he had died on account of cardiac arrest arising out of fat embolism. Further, the condition of the patient after surgery was not critical and he was shifted to the regular ward and put on normal diet and was undergoing physiotherapy and all of his parameters were normal as if reflected in the medical record. The averments made in the complaint are denied and the complainant is put to strict proof of the same. The opposite party denies that he had negligently treated the complainant’s  husband and he has not committed any negligent act and deficiency in service in treating the patient T.Ravichandran and hence prays to dismiss the complaint with costs.

10. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

11. POINT NO :1        

          The complainant husband Thiru.V.Ravichandran on 04.07.2010 while he and his brother  was riding as a pillion – rider on his motor bike, at about 3.15 p.m near Vellappan chavadi they met with an accident and immediately he was brought to the opposite party’s hospital. The injured had swelling on his right knee and unable to walk. However, he had no external injuries, no bleeding or any grievous injuries and he was very much conscious. Ex.A1 is the injuries report issued by the opposite party to the complainant’s husband. On the same day the opposite party doctor Sridhar conducted surgery on his right leg by fixing plate. After surgery the patient was shifted to the normal ward and he was under the care of the opposite party in the post operative care unit. On 08.07.2010 the patient suddenly complained of chest pain and breathlessness at about 5.45.p.m and he was immediately shifted to the ICU and after treatment, the opposite party declared the patient was died at about 6.30 p.m. The above facts are commonly admitted by both the parties.

 

          12. The complainant alleged deficiencies against the opposite party is that

1. The opposite party conducted surgery to the complainant’s husband   on 04.07.2010 and thereafter he was under the post operative care treatment  with him and during that period on 08.07.2010 evening by 5.00 p.m informed the opposite party doctor that he had breathlessness and immediately moved to the ICU and during treatment at about 6.30 p.m he was declared dead by the opposite party and hence the patient died due to the negligence treatment of the opposite party,
2. The records of treatment of the diseased was not furnished to the complainant even after several demands made by the complainant.

13. The opposite party would contend that he gave proper treatment including post operative care to the patient and however the diseased was died due to Fat Embolism Syndrome and the same was supported by the medical literatures and therefore there is no negligent treatment given by the opposite party and not committed any deficiency in service.

          14. The complainant filed Ex.A11 expert opinion issued by the doctor V.Dekal, M.D., Medico –Legal Expert in support of the complainant case which is marked as Ex.A11. The said doctor has not filed any proof affidavit of evidence to support his opinion. In the absence of evidence the above expert opinion cannot be relied on as contended by the opposite party and hence such an opinion is rejected.

          15. The complainant himself filed Ex.A10 medical records issued by the opposite party to her. The said medical records were recorded by the opposite party for the treatment given to the diseased in a detailed manner.  How the treatment was given in Ex.A11 is not correct, has not been stated by the complainant in her evidence. Further Ex.A11 injuries report issued by the opposite party reveals that the diseased had commuted fracture on his right tibia bone. Therefore the complainant has not established through the above medical records issued by the opposite party that he had committed negligent treatment to the diseased.  

          16. It is the case of the opposite party that due to fat embolism syndrome, the complainant’s husband was died and in respect of such case the opposite party is not responsible.  In Ex.A5 post mortem certificate the doctor K.Selvaraj who had conducted post mortem gave an opinion that “the diseased appear to have died of fat embolism syndrome”. The complainant also stated in his complaint at para 12 that “the opposite party’s failure to care the post operative care period, and also they allow to develop the fat embolism. The opposite party’s hospital ought to have expected this development of fat embolism in bicondylar fracture of tibia and should have taken proper steps of line of treatment”. From the above pleading, the complainant himself admitted that the complainant husband was developed into fat embolism during the post operative care treatment period and subsequently he was died.

          17. The opposite party would state that the fat embolism would develop in the case of bone fracture and it happens in some cases. The medical literature taken from the internet filed by the opposite party also supports his contention that “the syndrome manifests more frequently in closed fractures of the pelvis or long bones. The petechial rash, which usually resolves in 5-7 days, is said to be pathognomonic for the syndrome, but only occurs in 20-50% of cases”.  In the case in hand also the diseased was died on the fifth day from the date of accident and surgery. Therefore it is held that the complainant’s husband died due to sudden development of fat embolism and not due to the negligent treatment of the opposite party.

          18. The complainant relied on two judgments of the Hon’ble Supreme Court of India reported in II(2009) CPJ 92 (SC) POST GRADUATE INSTITUTE OF MEDICAL EDUCATION & RESEARCH Vs. JASPAL SINGH & ORS and II (2014) CPJ 5 (SC) ASHISH KUMAR MAZUMDAR Vs. AISHI RAM BATRA CHARITABLE HOSPITAL TRUST & ORS and contended that as per the ratio laid down therein, in  the case in hand also the opposite party committed deficiency in service.

          19. The facts in the judgment reported in II (2009) CPJ 92 (SC) is that there was wrong blood transfusion held as error and further the hospitals breach of duty in mismatched blood transfusion contributed to her death. Whereas the case in hand there was no mismatch blood transfusion and only the fat embolism developed during the post care treatment period and therefore the above referred judgment not applicable to the facts of this case.

          20. The facts in the judgment reported in II (2014) CPJ 5 (SC) is that the plaintiff in that case was admitted as an inpatient in the hospital on 27.10.1998 and he was not found in the hospital during the night hours on 31.10.1988/ 1.11.1988 and after informing the hospital authorities and after such he was found lying on the ground floor in the oncology gallery of the hospital and at a distance of 50 yards from his room with injuries all over his body.  The plaintiff in the case invoked principle of “res ipsa loquitur” and the same was accepted by the trial court and claim was awarded. The Hon’ble Supreme Court also confirmed the same. Whereas in the case in hand the fat embolism syndrome was developed during the post care period due to the fracture injuries sustained by the diseased and therefore the facts in the case in hand differs from the above case and therefore the above judgment of the Hon’ble Supreme Court is not applicable to the facts of this case.

          21.The complainant’s husband died on 08.07.2010 in the opposite party’s hospital and thereafter, the complainant demanded the opposite party to furnish the post mortem certificate and treatment records of her husband. However, the opposite party had not furnished the same. Hence the complainant wrote Ex.A7 letter sent through registered post on 27.04.2011 requesting the opposite party to furnish the entire cash sheet of her husband and the said letter was acknowledged by the opposite party on 28.04.2011 as per the acknowledgement enclosed with the aforesaid letter.  The opposite party even after receipt of such letter had not furnished the documents and the same has proved the callous attitude of the opposite party. Then she sent Ex.A8 legal notice dated 27.05.2011 requiring the opposite party to furnish the documents and that was acknowledged by him on 28.05.2011 as per the acknowledgement enclosed with that notice. The copy of above letter was sent to the Register, Tamil Nadu Medical Council Chennai under Ex.A9 and that was acknowledged by them on 30.05.2011. However, the opposite party neither sent any reply nor furnished the documents as required by the complainant.

          22. The complainant pleaded in his complaint also that the opposite party   failed to furnish the documents of her husband and the same was furnished after a long struggle. The opposite party simply denied in his written version that about the furnishing of the documents. After death of her husband, after a period of 10 months the legal notice was issued and thereafter only the opposite party furnished the documents to the complainant. The complainant having lost her husband   under the observation of the opposite party while treating him, they owe a duty to furnish the treatment records to the complainant. Even after demand such documents were not furnish to her. The documents were furnished only after issuing legal notice to the opposite party. This circumstances leads to the conclusion that the opposite party did not even have the courtesy to supply the documents and even failed to reply to the demand of the complainant made in Ex.A7 and Ex.A8 and only after 10 months the documents were furnished clearly establishes that the opposite party committed deficiency in service in this respect.   

23.  Therefore, from the forgoing discussions we hold that the complainant has not proved that due to the negligent treatment of the opposite party’s doctor only, the fat embolism was developed and in this respect, it is held that the opposite party has not committed any deficiency in service.

24. However, the opposite party had not furnished the treatment records to the complainant on demand made by her in person and also through correspondences Ex.A7 & Ex.A8 is a negligent act and furnished the same after 10 months belatedly proves that the opposite party has committed deficiency in service in this respect.

25. POINT NO:2

The opposite party  had committed deficiency in service in respect of not furnishing the documents required by the complainant immediately and even after her request letter and notice also not furnished and belatedly furnished after 10 months is negligent act and the same caused mental agony, hardship and irreparable loss to the complainant is accepted. The complainant’s husband died in the opposite party’s hospital during treatment, the opposite party should have extended some courtesy to the diseased wife by furnishing the documents required by her in time. The indifferent attitude of the opposite party in not responding her demand and belatedly furnishing the documents amounts to bad conduct of the hospital, who is expected to serve to the public in a noble way. Therefore, considering the conduct of the opposite party we are inclined to order heavy compensation to a sum of Rs.2,00,000/- as compensation to the complainant towards for not furnishing the documents immediately, besides a sum of Rs.5,000/- towards litigation expenses. 

In the result the complaint is partly allowed. The opposite party is ordered to pay a sum of Rs.2,00,000/- (Rupees two lakhs only) towards compensation for mental agony to the complainant, besides a sum of Rs.5,000/-  (Rupees five thousand only) towards litigation expenses.  

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 21^st   day of November 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 04.07.2010                   Accident/Injury Report by opposite party

Ex.A2 dated 08.07.2010                   Accident Register K.M.C. Hospital

Ex.A3 dated 08.07.2010                   FIR

Ex.A4 dated 19.07.2010                   Death Certificate

Ex.A5 dated 23.07.2010                   Post – Mortem Certificate

Ex.A6 dated 02.08.2010                   Leave Certificate From 2005 to 2010 of

                                                   Complainant’s husband

 

Ex.A7 dated 28.04.2011                   Requisition letter by complainant to opposite party

Ex.A8 dated 27.05.2011                   Legal Notice to opposite party

Ex.A9 dated 27.05.2011                   Legal Notice to opposite party

Ex.A10 dated 04.07.2010       Medical Records

 To 08.07.2010                                                    

 

Ex.A11 dated 21.07.2011                 Expert opinion by Dr.V.Dekal.M.D.,

Ex.A12 dated 22.12.2011                 Legal Notice to opposite party

Ex.A13 dated 14.12.2011                 Reply notice by opposite party

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                      …… NIL ……

 

 

 

MEMBER – I                                                               PRESIDENT