A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 1838/2007 against C.C. 6/2007 on the file of the District Forum, Nalgonda
Between :
Sadam Seetha Ramaiah,
S/o Guruvaiah,
Age 46 years : Occ : Nil,
R/o Revoor Village and Post
Mella Cheruvu Mandal of
Nalgonda District … Appellant/complainant
And
1. Nizam’s Institute of Medical Sciences
Panjagutta, Hyderabad
Andhra Pradesh – 500 082,
Represented by its Managing Director
2. Vasanti Orthocare & Trauma Hospital,
Opp. Dr. Subba Rao, Dr. Rama Rao Hospital,
Huzurnagar Road, Kodada – 508 206
Represented by Dr. C. M. Chandramohan,
M.B.B. S., M.S. ( Ortho ),
R/o Kodada Village and Mandal of
Nalgonda District … Respondents/ Opp.parties
Counsel for the Appellant : Sri Vakkanti Narsimha Rao
Counsel for the respondents : M/s. S. S. Bhatt for R-1.
Mr. A. H. Chakravarthy for R-2.
Coram ; Sri Syed Abdullah … Hon’ble Member
And
Sri R. Lakshminarasimha Rao… Hon’ble Member
Friday, the Eighteenth Day of June, Two Thousand Ten
Oral Order : ( As per Sri Syed Abdullah, Hon’ble Member )
****
Being aggrieved by the impugned order dated 15.11.2007 passed in C. C. 6/2007 by the District Forum, Nalgonda in dismissing the complaint which was filed against the opposite parties seeking compensation for the alleged medical negligence, this appeal is filed questioning the impugned order as erroneous and sought it to be set aside directing payment of compensation as prayed for.
In nutshell, the facts as stated in the complaint are that on 28.01.2005 the complainant had met with an accident which resulted an injury to his left leg. After taking initial treatment, he was referred to NIMS hospital ( OP. 1 ) where he was admitted as in-patient on payment of required charges. That on 30.01.2005 he was operated for fractured bone by doing skin grafting and then discharged on 17.02.2005. He was advised to come for check up after one month. So again on 11.03.2005 he went for check up and X-ray was taken and then Plaster Bandage was removed. By doing dressing some internal medicines were prescribed with advise to visit again after two weeks in the opposite party’s Orthopaedic Department. Again on 01.04.2005 when he visited the OP department he was informed that Elizanor Ring Fixator is to be fixed and that he is to be re-admitted for second surgery and it is noted in the outpatient ticket. Some medicines were prescribed for giving relief to pain. Again on 25.04.2005, the complainant approached the concerned doctor of OP. 1’s hospital to whom he expressed his weak financial position and sought his help. Then the doctor advised to get a plaster bandage which was bandaged tightly on the operated portion of the leg. Further, he was advised to come for check up after two weeks. The concerned doctor has bandaged against the advice noted in the OP ticket on 01.04.2005, as a result of putting the plaster bandage, his leg had to be amputated in OP.2’s hospital and by which he became permanently disabled person. The act or omission on the part of the OPs 1 and 2 amounts to medical negligence and thereby on the ground of medical negligence had sought for compensation of Rs.5 lakhs with interest and expenditure of Rs.40,000/- with interest thereon.
Denying the allegations, the opposite parties 1 and 2 have filed separate versions. The first opposite party had admitted the admission of the patient and performance of the operation of fractured bon and also payment of charges for treatment as inpatient in the hospital.
The first opposite party’s version is that the complainant had approached them on 29.01.2005 with compound Gr. III-B, commuted Fracture of the Tibia. The bone had protruded. A surgery was performed on 30.01.2005 which was successful and the doctors successfully saved the leg of the complainant by external fixation of the leg by doing skin grafting. The complainant had initially deposited Rs.10,000/- and also Rs.1,501/- . On improvement, he was discharged on 17.02.2005. In the discharge card it is mentioned that he should come for check up after one month. The complainant approached the hospital on 11.03.2005. X-ray was taken and medicines were prescribed. Again, asked to come after two weeks. The complainant approached on 1.5.2005 and the doctors advised surgery ( ILIzarov Fixator ) and he was advised to undergo it. In stead of coming on the given dates the complainant met Dr. V. S. P. Rao on 12.4.2005 in the opposite party department who advised to have the Fixator. As the patient expressed his inability to afford the second operation he was advised to come for review after one month ie.. on 12.5.2005 but he approached on 24.05.2005. As the patient approached 12 days later than the given date, he was again a date was fixed for further treatment. After application of the plaster, patient was advised to keep the limb elevated and to report immediately and to inform in case of swelling , altered sensation or discoloration appears on the toes which he failed to report at any time. As per the plaster protocol the patient was kept for observation and it was checked before he was sent home in the evening. It means to put it in common man language that for performing the above said operation the rods, etc. that were put inside to be removed and after removal, the wounds have to heal for which it takes two weeks time, so the patient was advised to come after two weeks after healing of the wounds and get ready for operation that was to be performed subsequently. But the patient did not turn up as part of the fixator removal, all the holes need to be thoroughly cleaned before the POP is applied. Using sterile saline to clean the pin holes after fixator removal is a standard practice which ensures good healing of the wounds. POP was to be applied after the rod removal as the patient was unable to bear expenses for operation. It is not correct to state that POP bandage was tightly fixed which caused undue pain. It is not correct to say that the doctors have taken a decision to apply POP contrary to their own advice of fixing ILIZAROV FIXATOR. The said fixator cannot be applied unless the initial rods are removed and wounds heal. The first opposite party doctors cannot be made responsible for the actions which culminated in the loss of the limb of the complainant on 02.06.2005 after his discharge. In case there was a problem with the plaster, the patient should have reported to the NIMS doctors immediately which he failed to do so. There was no negligence on the part of the OP 1 doctors to claim for any compensation.
OP.2 ‘s version is that a patient was admitted on 27.05.2005 with a complaint of severe pain in his left leg after applying plaster bandage in OP.1’s hospital on 24.01.2005. initially, the complainant took treatment in NIMS hospital and with one RMP doctor. On 26.05.2005, the second opposite party after examining it was found that toes were cold no capillary filling and movement of toes were painless and sluggish. There was no sensation on pricking of toes. So immediately advised for removal of POP cast. The attendants of the complainant refused for removal of the POP. The complainant was having unbearable pain and he himself asked for removal of POP. After examining, the second opposite party found that gangrene had set in to the left knee and he was advised for amputation of leg above knee as the gangrene had already set in four days back. After taking consent the amputation was done. Otherwise, would have become septicemia and toxemia. The surgery was done on 02.06.2005 by giving general anaesthesia. Operation was uneventful. Patient was discharged after satisfaction. The complainant had expressed his thanks for saving his life by amputating his leg at the appropriate time. The complainant is not entitled for any relief at all.
During the enquiry, before the District Forum the complainant along with evidence affidavit filed Ex. A1 to A-53 documents consisting of discharge summary of OP.1’s hospital, various money receipts, x-ray clinical reports etc. Ops 1 and 2 also filed evidence affidavits along with discharge summary along with Ex.B1 and B2.
On the basis of the evidence on record, it was vehemently argued before the District Forum pointing out that OP. 1 ought not to have applied POP bandage which is contrary to its own advice for fixation of Elizanor Fixator and that the patient was discharged without proper post operative care and on account of the application of the POP bandage it resulted in gangrene. The opposite parities also with equal vehemence were raised the contention that there is no evidence on record to show that the opposite parties were negligent in either conducting operation or giving post operative treatment.
The District Forum had adjudicated the dispute on the aspect of deficiency in service and came to the conclusion that the complainant has not produced any evidence against the doctors to show that there was negligence in conducting the operation and due to their negligence his left leg had to be amputated and thereby dismissed the complaint.
Reiterating the very stand taken in the pleadings and in the appeal grounds, it is contended that there was negligence on the part of the OP. 1 doctor in applying POP bandage against his own advice to have a fixator on 24.05.2005. It is further stated that the complainant had to come from a distant place i.e., from Nalgonda to Hyderabad and they failed to anticipate that anything may happen due to application of POP bandage. The second opposite party was attributed with negligence for not obtaining written consent to amputate the leg on the ground that gangrene had set in to the operated leg.
Point for consideration is whether the appellant/complainant has discharged the initial burden to prove negligence against the OPs 1 and 2 for entitlement of compensation as claimed by him and whether the order of the District Forum in dismissing the complaint suffers from any factual and legal infirmity ?
The complainant has not produced any expert evidence in support of his allegations that both the Opposite parties 1 and 2 were negligent either in operating to set right fractured TIBIA bone and applied for the POP bandage and then for amputation of the leg by the second opposite party.
It is not the case of the complainant that the doctors of the opposite parties 1 and 2 are not having any requisite qualification, experience, skill in performing the operation. The first opposite party had taken the stand that by means of operation the fractured bone was set right which was uneventful and after improvement he was discharged by advising to come for check up on the dates fixed. On 01.04.2005 on which date after taking the x-ray the patient was advised that Elizanor Ring Fixator is to be fixed but he expressed his inability to bear the necessary expenditure and as a stop gap arrangement POP bandage was applied and he was advised to come by fixing a date. This is not at all denied. On the other hand, the complainant himself admitted that on 01.04.2005 the first opposite party doctors advised him to get prepared for fixation of Elizanor Ring Fixator on 24.05.2010 and at that time he expressed his week financial position to the doctors and sought their help and on that they advised him to get plaster bandage to be fixed tight on the operated leg and he was asked to come for periodical check up. The contention of the complainant that they applied POP bandage contrary to their advice. When the complainant was unable to bear the cost and the expenditure as stop gap arrangement he opted to have POP bandage which cannot be attributed as negligence at all. The first opposite party in its version has clearly explained the details and the manner in which the first operation was done so also the necessary treatment that was given till he was discharged. The discharge summary filed by the complainant is self-explanatory which contains the details of it. In para 5 of the first opposite party’s version full details of the procedure is explained. In paras 4 and 5 it is clearly stated that when the date was given on 12.05.2005 for fixation of Elizanor Ring Fixator he delayed to visit for 42 days and expressed his inability to get the second operation for fixation of Fixator. It is further stated that the Fixator cannot be applied unless the rods that were inserted to the fractured bones are removed and the wound is healed. The first opposite party has also explained that after applying plaster bandage the patient did not visit to give report about the complications if any and that he did not follow the advice. There is no expert evidence on record to show that the operation done by the OP.1’s doctor was wrong and contrary to the procedure to apply POP bandage as a stop gap arrangement till the second operation was done. In a recent decision of the Hon’ble Supreme Court in 2010 National Consumer Judgment page 177 in Dr. C. P. Sreekumar, MS ( Ortho) Vs. S. Ramanujam
it is made clear that in the absence of experts evidence on record to show that there was negligence or deficiency in service on the part of the doctors or to prove that they failed to take reasonable degree of care and caution the patient by which he suffered any loss or injury. It is also made clear that in a catena of decisions that no doctor can undertake that he will positively cure the patient nor does he undertake to use highest possible degree of skill, so also, that there may be more skilled doctors than himself but he definitely undertakes to use fair and reasonable care and caution in conducting operation or in giving treatment. It is an admitted fact that the complainant did not approach the first opposite party doctor after POP was applied. It is clear from the admissions that as he was residing at a distance of about 250 Kms away from Hyderabad he could not visit the first opposite party hospital for review of post operative condition and take further treatment on the dates fixed. It is very clear from the record that the complainant himself had delayed which was on account of his weak financial position and could not get ready for the second operation to get the fixator. It is apparent that on account of his own negligence septicemia had set in which ultimately lead to formation of Gangrene. The second opposite party in its version has clearly stated that on 26.05.2005, the patient approached him by which date the Gangrene was set in so it was inevitable for him to amputate the leg above the knee to save life else that gangrene spread spread to other parts of the body. Ex.B-2 is the discharge letter which contains the details of the treatment given in OP.2’s hospital during the period from 27.05.2005 to 13.06.2005. When the complainant was convinced and agreed for the amputation it is deemed that he consented for it and unless he gave consent no doctor would come forward to perform the operation against his will. It is to be presumed that there was an express and implied consent on the part of the complainant and by his attendants so as to save life as Gangrene had set in to the operated leg. Saving of the life is more important, so after explaining the severity and consequences of it, the doctor had in all sincerity performed the operation in amputating the leg. Thus, he saved the life of the complainant as such it cannot be attributed as negligence or deficiency in service to claim for any compensation.
Thus on an overall scrutiny and evalution of the evidence on record, we are of considered opinion that the complainant fails to make out his case of negligence against the doctors or much less deficiency in service as alleged. The appeal is devoid of merits. There is no factual or legal infirmity in the impugned order for its interference.
In the result, the appeal is dismissed confirming the order passed by the District Forum in C. C. 6/2007 for dismissing the complaint. In the circumstances, each party to bear their own costs.
Sd/- MEMBER
Sd/- MEMBER
DATED :18.06.2010.
