KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS:998/03 & 8/2004
COMMON JUDGMENT DATED:09-11-2010
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU :PRESIDENT
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
APPEAL NO.998/2003
Noushad Rahman (minor),
S/o Aboobacker, R/by
Aboobacker, S/o Hassan, : APPELLANT
P.O.Thalakkadathur, Tirur Taluk.
(By Adv:Sri.Philip.T.Varghese & Others)
Vs.
1. City Hospial & Diagnostic Centre,
Tirur.
(By Adv.Sri.Joseph Vallamattam)
2. Dr.M.P.Ali, : RESPONDENTS
City Hospial & Diagnostic Centre,
Tirur.
(By Adv.Sri.M.P.M.Aslam)
APPEAL NO.8/2004
City Hospial & Diagnostic Centre,
Tirur. R/by its Manager, : APPELLANT
E.K.Abu Haji, P.O.Tirur, Malappuram Dist.
(By Adv.Sri.Joseph Vallamattam)
Vs.
1.Noushad Rahman (minor),
S/o Aboobacker, R/by his father &
Guardian,
Aboobacker, S/o Hassan,
Pattathil, Chettiyamparamba,
P.O.Thalakkadathur, Tirur Taluk,
Malappuram District.
(By Adv:Sri.Philip.T.Varghese & Others)
2. Dr.M.P.Ali, : RESPONDENTS
City Hospial & Diagnostic Centre,
Tirur.
(By Adv.Sri.M.P.M.Aslam)
COMMON JUDGMENT
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
The appellant in Appeal.998/03 is the complainant in OP.301/01 in the file of CDRF, Malappuram and the appellant in Appeal 8/04 is the 1st opposite party hospital. The opposite parties are under orders to pay a sum of Rs.1,00,000/- as compensation and Rs.3000/- towards cost.
2. The case of the complainant/appellant then aged 9 years represented by his father is as follows:
3. The father of the complainant on 24/5/2001 took his two minor sons including the complainant to the 1st opposite party hospital for performing circumcision. The procedure was done by the 2nd opposite party doctor. Subsequent to circumcision after about half an hour the complainant had severe pain on the organ and inability to discharge urine. He was taken to the hospital of the opposite party on the same day in the night. The 2nd opposite party removed the urine using a tube and dressed the area and sent back. On the next day, it was found that there are burn marks over the umbilicus and leg. He was taken to the 1st opposite party hospital and at the instance of the 2nd opposite party doctor; the complainant was taken to Tirur Nursing Home. The doctor at Tirur nursing home referred the complainant to National Hospital, Kozhikkode. The petitioner was admitted at National Hospital, Kozhikkode and the Pediatrician Dr.Varma advised that plastic surgery would have to be performed at the genital organ and advised to take him to the Medical College Hospital or to some other hospital. The complainant was taken to Christian Medical College Hospital, Vellore. A reference letter was given which would show that the burning and swelling was on account of electric cauterization done at the 1st opposite party hospital. On 2/6/2001 he was admitted at CMC Vellore. He underwent skin drafting, taking the skin from the left thigh. The genital organ was reduced to half in size. He has also to apply some local aesthetic ointment and use a tube that has to be inserted for expelling urine. He could not attend classes. He still has to use the tube etc for removing urine. It is alleged that the entire consequences ensued was on account of the negligence on the part of the 2nd opposite party doctor. He had to spent about Rs.40,000/- for treatment at Vellore. He had also to spent amounts for travel, accommodation etc. He has sought for a sum of Rs.50,000/- as compensation and Rs.25,000/- towards loss of one year of schooling. He has sought for Rs.3.6.lakhs of the disability and altogether a sum of Rs.5.lakhs.
3. The opposite parties have filed a joint version contending that there is no negligence on the part of the 2nd opposite party. It is pointed out that the complainant was having phemosis and the same was informed to the parties before circumcision. It is submitted that local anesthesia was given using 2% plain Xylocaine after test dose. Surgery was done under all aseptic precautions. There was excessive bleeding at the site of circumcision which could not be controlled. The bleeding was stopped by using electric cautery. Antibiotics and anti inflammatory drugs and TT was administered. It is stated that at 8 pm the complainant was brought to the hospital with complaints of pain while passing the urine. On examination discolouration and oedema over the penis was noted. There was no injury to the shaft or the glans of penis. He was advised to be taken a pediatric surgeon, Dr.Nasir of Tirur Nursing home. On the next day the complainant was again brought and discolouration and oedema over the penis with signs of necrosis of the skin was noted. Dr. Nasir referred him to Dr.Karthikeya Varma, renowned pediatric surgeon. It is denied that there was skin burn over the penis or burns and swelling over the umbilicus or the right lower limb. It is known that the complainant was taken to CMC Vellore on their own accord inspite of the fact that Dr.Varma was the Professor and Head of Department of Pediatric Surgery at Medical College, Calicut. It is denied that the complications arose was on account of the surgery done by the 2nd opposite party. It is contended that the outcome of any treatment would depend upon a variety of factors such as the existence of other diseases, immunological status of the individual, sensitivity of the individual to the drugs etc. It is also contended that every surgical procedure even if minor in nature involves certain inherent reasons.
4. The evidence adduced consisted of the testimony of PW1, DW1 and Exts.P1 to P8 series.
5. PW1 is the father of the complainant who has testified as per the averments in the complaint. DW1 is Dr.Abdul Nasir a Peadiatric surgeon at Tirur Nursing Home to whom the complainant was referred by the 2nd opposite party doctor. PW1 has deposed that Xylocaine used for local anesthesia can have side effects including decrease in blood circulation and that the same can result in necrosis. The condition can aggravate if treatment was not administered in time. He has stated in the cross examination that it was whitish areas that was found and not burns. It is noted in the discharge summary from National Hospital, Kozhikkode that at the time of admission ie on 26/5/2001 the entire shaft of penis was found denuded of epithelium with edges at the root of penis. There was no prepucian skin also. The glans surface appeared healthy. There was an escher on the ventral aspects of penis. There was a lesion on the umbilicus and another on the back of right leg. There was no evidence of urethral injury. He was discharged on the next day on request to be taken to CMC Vellore. The antibiotics and pain killers are seen prescribed. Ext.P3 is the reference letter from the 1st opposite party hospital to CMC Vellore issued by the 2nd opposite party doctor. It is mentioned therein that the complainant is having history of burns on the shaft of the penis with electric cautery to coagulate the bleeding while doing circumcision on 24/5/2001. It is mentioned that unfortunately the skin burns occurred at the time or circumcision. Ext.P4 is the treatment record of the 1st opposite party hospital. It is mentioned that 2% Xylocaine (plain) was injected at the root of the penis and that there was bleeding after suturing. The bleeding was arrested by using electric cautery and haemastasis (stopping of bleeding) achieved and the patient discharged. On the next day it is noted that consultation with Pediatric surgery was suggested. Ext.P5 is the discharge summary from CMC Vellore at the time of admission. It is noted that there was discolouration of penis and burn marks over the right leg and umbilicus and multiple small burn marks over umbilicus and one burn mark over the tendo achilles of right leg. The entire penile skin was lost and a small area of gangrenous skin was found in places. There was line of demarcation on the basis of the penis. The scortum was read and oedematus. Meatus was found covered with scab. There was no sensation of glans. Debridement was done on 8/6/2001 under anesthesia. It is mentioned that skin covering procedure is to be done once infection subsidies. Ext.P6 is another discharge summary from CMC, Vellore. It is mentioned therein that split thickness skin grafting over penile area was done under general anesthesia on 27/6/2001. There was necrosis of the whole penile skin and the dorsal neurovascular bundle was exposed. Urethra was exposed in distal part. Review in Paediatric surgery OP Department on 13/7/2001 is suggested.
6. Ext.P7 is the certificate issued by CMC, Vellore. It is mentioned therein that he was admitted in the month of June and the dead tissues were debrided on two occasions following which split thickness skin graft was applied to the skin and superficial tissues of the penis and a large superficial portion of the glans was sloughed off. The corpus spongiosum around the urethra was also sloughed off leaving a papery thin urethra exposed. After discharge he was dilating the external meatus daily. On account of the increased difficulty and straining during voiding of urine urethra was calibrated with a 6Fr distal feeding tube. There was an area of narrowing of about 1.5.cms proxial to the external urethral meatus. The same was dilated with 6 Fr feeding tube and subsequently by an 8 Fr feeding tube. The child has been taught to do self dilatation. The size of the penile shaft and the glans penis seems to have markedly shrunken in size to about ½ of the original size. He has been advised to do regular dilatation daily and to correspond regarding the condition of the child. Ext.P8 series are the medical and other bills amounting to Rs.28,261.50.
7. We find that the medical records produced reveal the condition of the complainant after undergoing circumcision and tells a lot about present condition. There is no case for the opposite parties in the version filed that the entire consequences resulted was on account of the reaction of Xylocaine as is mentioned by DW1, the Paediatric surgeon of Tirur Nursing Home to whom he was referred to by the 2nd opposite party. The 2nd opposite party did not depose. The records would show that the injuries were sustained to the glans of the penis and the skin was found removed to the root of the penis. Whether the same happened during circumcision or at the time of cauterization is not evident as the 2nd opposite party/doctor did not testify. No authority has been produced to substantiate the contention that administration of Xylocaine can result in such consequences. We find that negligence on the part of the 2nd opposite party is evident. Being a surgeon, a specialist he should have to done the procedure properly. Hence we find that there no interference in the finding of the Forum that the 1st opposite party was negligent is called for. The same is confirmed.
8. We find that the complainant is entitled for enhanced compensation in view of the fact that he had to undergo excruciating pain and had to undergo surgical procedures under general anesthesia, that too at C.M.C. Vellore, a distant place. As noted in the certificate from CMC Vellore his genital organ has been reduced to half of its original size. The urination is painful. In the circumstances the compensation is enhanced to Rs.1,50,000/-. Hence the opposite parties are directed to pay a sum of Rs.1.5 lakhs as compensation with interest at 12% per annum from 17/4/2001 the date of complaint. The order with respect to cost is sustained.
9. The opposite parties would make the payment within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 15% from the date of this order of this commission ie 9/11/2010.
In the result A.998/03 is allowed in part and Appeal.8/04 is dismissed.
JUSTICE K.R. UDAYABHANU:PRESIDENT
VL.
S. CHANDRAMOHAN NAIR : MEMBER
