Tamil Nadu

South Chennai

137/2006

g manohar - Complainant(s)

Versus

new asian hospital & one another - Opp.Party(s)

r abdul mubben

29 Dec 2016

ORDER

                                                                        Date of Filing :   28.09.2006

                                                                        Date of Order :   29.12.2016

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            

C.C.NO. 137/2006

THURSDAY THIS  29^TH  DAY OF DECEMBER 2016

 

Mr. G. Manohar,

No.1/244 Kalathamedu,

4^th Street, Kottivakkam,

Chennai 600 041.                                            ..Complainant

 

                                       ..Vs..

 

1. M/s. New Asian Hospital,

Rep. by its Managing Director,

E-147/A 2^nd Avenue, Besant Nagar,

Chennai 600 091.

 

2. Dr. Radha Krishnan,

Consultant and Surgeon,

New Asian Hospital,

E-147/A, 2^nd Avenue, Besant Nagar,

Chennai 600 091.                                             ..Opposite parties

 

Counsel for the complainant       :  M/s R. Abdul Mubeen & another

Counsel for the opposite parties  :  M/s. T. Pappaiah Dharmarajan

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to refund a sum of Rs.15,000/- for performing negligent surgery and also to pay a sum of Rs.50,000/- for mental agony and Rs.10,000/- as cost of the complaint.  

1. The averment of the complaint are brief as follows:

        The complainant was suffering from severe pain and bleeding while passing motion and hence the complainant had approached the 1^st opposite party hospital for treatment of the said disease.   The 2nd opposite party had admitted the complainant  as in patient in the hospital of the 1^st opposite party on 15.2.2005 after diagnosing that he was suffering with fissures in anus.  The 2^nd opposite party had recommended immediate surgery to the complainant on the very day of his admission on 15.2.2005 itself in the hospital of the 1^st opposite party.   The 2^nd opposite party has operated upon the complainant on 15.2.2005 and discharged the complainant on 16.2.2005.  

2.     Even after discharge from the hospital of the 1^st opposite party and the treatment having taken from the opposite parties, the complainant was not fully cured and there was persisting pain and bleeding while passing motion.   Then the complainant referred for a second opinion with another doctor at Girishwaari Hospital Pvt. Ltd at Alwarpet, Chennai recommended to perform surgery at the earliest.  Again, for abundant caution the complainant had referred himself to the JE NESAM Hospital at Ashok Nagar, Chennai where the doctors of the hospital again recommended immediate surgery.   The doctors at whom the complainant sought for opinion had repeatedly insisted for surgery since the surgery performed by the opposite parties was not completed fully.  

3.     Since the complainant was to leave for an urgent trip to Trichy on 9.5.2005 after consuming pain killer drugs but as soon as the complainant reached Trichy, the complainant was again subjected to severe pain and bleeding in anus and hence he immediately approached the nearby hospital one M/s. City Hospital, and one Dr.B.Bosco immediately asked the complainant to undergo surgery for Fissures in anus and hence the complainant was admitted as an inpatient and the said doctor had performed surgery for Fissurectomy Spinterotomy and was advised rest for a week with a review in every week. Though the opposite parties have not successfully completed the surgery but on the contrary the opposite parties have received Rs.15,000/- towards the entire package for the surgery. The negligent act of opposite parties while performing surgery again caused the complainant to spent a further sum of Rs.20,000/- towards second surgery apart from severe pain and bleedings, mental agony irreparable loss and untold hardship.   Hence this complaint.

4.      Written Version of  opposite parties are  in briefly as follows:

       The opposite parties deny the allegation that the complainant approached the opposite parties on 15.2.2005, in fact the complainant consulted the opposite parties as an outpatient on 10.2.2005 and he was diagnosed as a case of fissure in anus.   The complainant was no conservative treatment even before that with other physicians.   Initially a conservative management was advised and the complainant was prescribed stool softners, high fibre diet etc. and not to ride motor cycle as the sitting posture on a two wheeler involves stretching of both legs apart and body weight falling directly over the anus which could only aggravate the condition the complainant was suffering from severe pain.  Further the complainant was a known case of Diabetes Mellitus on irregular treatment, which fact he had not disclosed in his complaint.  As the complainant did not follow the advice of the opposite party-2 the conservative management failed for which the complainant alone is to be blamed. 

5.     When the complainant came to the 1^st opposite party’s hospital on 15.2.2005 he had all the aggravated symptoms of anal fissure which warranted an immediate surgery.   The option of surgery in case of failure of conservative management was explained to the complainant at the time of his earlier visit.   As the condition of the fissure was very severe and complainant being a diabetic the chances of conservative management achieving the necessary objective being remote, the 2^nd opposite party opted for a surgery as an immediate measure to ameliorate the complainant’s problem.  Hence surgery was planned on 15.2.2005.  All necessary preliminary investigations were done and found to be normal  except blood sugar.  Complainant was also advised prior to surgery about the nature of healing of wounds and the time it takes for the wound to heal and control of blood sugar being important.  The second opposite party performed lateral Sphincterotomy with biopsy of the polypoidal lesion at the first opposite party’s Hospital on 15.2.2006 as the patient is a know diabetic surgery was done in the morning, so that he can continue his routine and oral diet.    As the complainant showed no sign of bleeding and had no complaints of pain, the 2^nd opposite party did not think it necessary to hold the complainant for more than 24 hours and eventually the complainant was discharged on 16.2.2005 after the administration of a sitz bath under supervision of 2^nd opposite party.

6.     On discharge the complaint was advised regular follow-up with dietary modification and not to ride two wheeler bed rest, stool softener, antibiotic,  high fibre diet and not to strain while defecating.  High fibre diet is advised to avoid constipation.   When there is any problem it was only appropriate for the complainant to approach the 2^nd opposite party who performed the surgery but it appears from the complainant’s allegation he approached other doctors.   The problem of the complainant is non adherence of medical advice.   It appears that with first sign of relief after the surgery the complainant had started to ride two wheeler much against the medical advice of the 2^nd opposite party.  Moreover the complainant made a travel a trip to Trichy even with bleeding anus and pain for reason best known to him.  Sitting over a torn anus for over 10 hours and that too in a bus, with wonderful roads, we have is enough to aggravate the problem, which explains the immediate surgery the complainant underwent at Trichy.  Had the complainant followed all the medical advice given by the 2^nd opposite party and avoided riding two wheelers he could have recovered normally.  The surgical procedure adopted was good and it was executed to perfection it is the complainant’s reckless attitude to medical advice, which had lead to a second surgery.  The opposite parties were not negligent.   Though the sum of Rs.15000/-  for surgery, that on the complainant’s request citing poverty upon humanitarian consideration the total cost of surgery was fixed at Rs.5,900/- and bill to the said amount were also issued.   The recurrence of the symptoms of fissure in ano was only due to the careless attitude of the complainant and not due to any deficiency in the care provided by the opposite parties.   The opposite parties are not liable to pay any compensation as they are not responsible for the complications.   The opposite parties replied to the lawyer’s notice through a reply dated 4.7.2005 which has been acknowledge by the complainant and hence this complaint is liable to be dismissed.

7.     In order to prove the averments of the complaint, the complainant has filed proof affidavit along for his evidence and documents Ex.A1 to Ex.A9 marked.  Proof affidavit of opposite parties field and Ex.B1 to Ex.B3  marked on the side of the opposite parties.

 8.   At this juncture, the point for the consideration before this

        Forum is:  

 

1. Whether there is any deficiency of service on the part of the 

    Opposite parties as alleged in the complaint?

2.  Whether the complainant is entitled to any relief as prayed for?

9. Point No.1

        The case of the complainant is that due to the negligence of the opposite parties in doing surgery for Lateral Spincterotomy and Polypoidal lesion within three months the problem reckoned and thereby the complainant was constrained  to undergo another surgery immediately and thereby the complainant incurred financial loss and suffered severe pain and mental agony and therefore the opposite parties have committed medical negligence which leads to deficiency of service on their part.

10.    While so, the opposite parties would contend that the opposite parties have not committed any medical negligence and follow the method in doing the said surgery but infact failure on the part of the complainant only to follow the instructions given by the opposite parties for certain period is the reason the complainant to undergo further surgery and hence no way the opposite parties held responsible.   It is further contended that on the complainant’s request citing poverty upon humanitarian consideration the total cost of surgery was fixed at Rs.5,900/- instead of Rs.15,000/- towards surgery and hence the complainant is not entitled for any compensation.

11.    At this juncture, it goes without saying that the complainant is having bounden duty to prove the allegation in respect of medical negligence made against the opposite parties with relevant and acceptable evidence.    First of all, on perusal of the evidence, it is learnt that the complainant undergone a surgery for fissures in anus in the 1^st opposite party’s hospital which is performed by opposite party-2 on 15.2.2005 and discharged the complainant on 16.2.2005.   The discharge summary is marked as Ex.A1.   Even after surgery there was  suffering from severe pain and bleeding while passing motion and hence the complainant himself referred for 2^nd medical opinion from Girishwari Hospital, Alwarpet, Chennai which is marked as Ex.A2, with recommendation of the same surgery to be performed at the earliest.   The medical prescriptions of Je Nesam Hospital which is marked as Ex.A3   It is further learnt from the evidence of the complainant is that the complainant had to leave for an urgent trip to Trichy on 9.5.2005 and during journey he was again subjected to severe pain and pleading in anus and hence he immediately approached the hospital one M/s. City Hospital and there one Dr.B.Bosco recommended to undergo surgery for Fissures in anus and therefore the complainant admitted himself as an inpatient and surgery was performed by one Dr.B.Bosco and he was advised for bed rest for a week.  The medical bills issued by the hospital which is marked as Ex.A4,  and the case history of the complainant, given by the City hospital which is marked as Ex.A5.   The Laboratory report is marked as Ex.A6.   It is further stated that  due to the medical negligence committed by the opposite parties only the complainant was compelled to undergo further surgery for Fissures in anus for the same disease.   Therefore, the complainant issued a legal notice Ex.A7 to the opposite parties and the same was acknowledged by the opposite party-1.  But the notice sent to the opposite party-2 the cover returned.   The returned cover is marked as Ex.A9 and postal receipts for sending the legal notice which is marked as Ex.A8.  

12.    Whereas, on the side of the opposite parties, it is stated that  Spincterotmy is a simple procedure and depending upon the condition of the patient and in fact all necessary preliminary investigations were done and found to be normal except blood sugar and the complainant was also advised prior to surgery about the nature of healing of wounds and at the time it takes for the wound to heal and control of blood sugar being important.   It is further stated by the opposite party-2 that the procedure was performed by the opposite party-2 properly as for medical text and after surgery the complainant showed no sign of bleeding and had no complainants of pain, and therefore he was discharged on 16.2.2005 after the administration of a sitz bath with proper prescription of medicines, as usually advised pain is often less than that experienced pre-operatively and most patients could resume their normal activities within 48 hours.    In this connection the case sheet, discharge summary, bills which are marked  Ex.B1 and Ex.B2 series.  Further it is enlightened that on considering the poverty of the complainant the total cost of surgery was fixed at Rs.5,900/- only instead of Rs.15,000/- charged usually towards the said surgery and the said bill is marked as Ex.B3 and Ex.B4.  The reply was issued to the complainant’s counsel properly.   Therefore no medical negligence committed by the opposite parties.

13.    At this juncture on careful perusal of rival submission put-forth on either side, it is crystal clear that the admission of the complainant in the 1^st opposite party hospital on 15.2.2005 for  surgery for fissures in anus and the surgery was performed by the opposite party-2 and after completion of surgery the complainant was discharged on 16.2.2005 are all admitted fact.  Only dispute before this forum is whether the opposite parties have committed medical negligence as alleged in the complaint and the same has been proved or not?.   In such circumstances on going through the proof affidavit of opposite parties it is clearly seen that pain is often less than that experienced pre-operatively and most patients could resume their normal activities within 48 hours.   While so, it is evident from the complainant side that the complainant had pain and bleeding while passing motion even after surgery and taken treatment in the Girishwari Hospital within two months.  Further, it is seen from Ex.A4 to Ex.A6 that the complainant underwent a second surgery for the same suffering of the fissure in anus at City Hospital, Trichy which was done by Dr. B. Bosco and thereafter the complainant fully recovered from the suffering of Spintertomy.  While being so, on the side of the opposite

 

 

 parties it was contended that the complainant has not followed the advice of the opposite parties after surgery and he was used to drive the two wheeler vehicle within the short time and therefore the pain and sufferings reckoned and thereby it is crystal clear that the recklessness  attitude of the complainant to medical advice which only need to a second surgery.   Regarding this contention   this forum wants to enlighten that it is admitted by the opposite parties themselves that the complainant should avoid ride motor cycle three to four weeks only, but the pain reckoned after two months and after completion of three months only the complainant underwent the 2^nd surgery.   Moreover, in respect of the above said contention it is the duty of the opposite parties to prove that the complainant would have driven a wheeler vehicle within two to four weeks which is against the advice of the opposite parties but practically no evidence at all.  

14.    At the outset, it is pertinent to note that within short spell of time i.e within three month from the date of surgery, the complainant was constrained to go for second surgery for the same suffering.  If it is so it  as narrated by the 2^nd opposite party that if he has performed the surgery with all procedure with perfection, certainly there is no need of second surgery immediately within a short time has to be taken for consideration.

15.    Therefore, let us pass on to the next contention raised by the opposite parties that the complainant is a Diabetes patient and there is a possibility of taking healing of wounds, in fact since because of diabetes patient the second surgery was come into picture.  As such no proof on the side of the opposite parties, to that effect.  Therefore, the plea taken by the opposite parties has lost its merits.  At the same time  it has to be taken into consideration the cost of surgery has claimed by the opposite parties is only of Rs.5,900/- instead of Rs.15,000/- on the humanitarian aspect by claiming poverty  as stated by the complainant. The said fact has been proved by the opposite parties through Ex.B2. At the outset, it is crystal clear that since because of  medical negligence committed by the opposite parties, the complainant was constrained to go from second surgery.     

16.    In the light of the above facts and circumstances this forum concludes that the complainant has proved the medical negligence committed by the opposite parties.  Thus the point No.1 is answered accordingly.

 

17.  POINT No.2:-     It is seen from the complaint that the complainant claimed for the refund of Rs.15,000/- which was paid performed the surgery in the 1^st opposite party Hospital. In this regard, no evidence to show that the complainant has paid Rs.15,000/- to the opposite parties and the same has not been established with consistent evidence. But at the same time, from Ex.B2 produced on the side of the opposite parties it is crystal clear that the complainant has paid Rs.5,900/- towards the surgery.  Therefore, the complainant is entitled for the refund of Rs.5,900/- since surgery done for the complainant by the 2^nd opposite party has not fully succeeded and sufferings of pain occurs again even after surgery.    Hence   the  above  amount shall be paid  by  the opposite parties 1 & 2  jointly  and   severally.  Further as per decision arrived in point No.1 the complainant is entitled for reasonable compensation as well as cost.    Thus the point No.2 is answered accordingly. 

In the result, the complaint is allowed in part.   Accordingly the opposite parties are directed to refund a sum of Rs.5,900/- (Rupees Five thousand and nine hundred only) towards cost of the surgery paid by the complainant and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards compensation for causing mental agony and hardship and with cost of Rs.5000/- (Rupees Five thousand only) towards litigation charges to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

              Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  29^th  day  of  December 2016.

 

MEMBER-I                                                                       PRESIDENT.

Complainant’s side documents:

Ex.A1-  15.2.2005 - Copy of discharge summary.

Ex.A2-         -       - Copy of second opinion from Girishwari hospital.

Ex.A3- 27.4.2005  - Copy of Medical Prescription for Je Nesam Hosptial.

Ex.A4-         -       - Copy  of Medical bills of City Hospital.

Ex.A5- 1.5.2005    - Copy of Case history of complainant.

Ex.A6- 9.5.2005    - Copy of Laboratory report.

Ex.A7- 20.5.2005  - Copy of legal notice.

Ex.A8- 21.5.2005  - Copy of Postal receipts.

Ex.A9- 22.6.2005  - Copy of ack. card & returned cover.

 

Opposite parties side Documents :   

 

Ex.B1-         -       - Copy of case sheet and discharge summary.

Ex.B2-         -       - Copy of bills.

Ex.B3-         -       - Copy of reply notice.  

 

 

MEMBER-I                                                                     PRESIDENT.