BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.117/2007 AGAINST C.D.No.919/2004, DISTRICT CONSUMER
FORUM-III,HYDERABAD.
Between:
1. Niveditha Orthopedic Centre,
At RTC-X-Roads,
Chikkadpally, Hyderabad,
Rep. by its M.D.Dr.R.Sree Ramulu.
2. Dr.R.Sreeramulu, S/o.R.Ambaiah,
Aged 60 years, Occ:Orthopedic Surgeon,
O/o. Niveditha Orthopedic Centre,
Chikkadpally, Hyderabad. Appellants/
Opp.parties 1 & 2
And
P.Malleshwari, W/o.P.Narsimhaiah,
Aged about 47 years, Occ:Household,
R/o.8-139/1, Gandhinagar,
Kalwakurthy, Mahaboobnagar Dist. A.P. Respondent/
Complainant
Counsel for the Appellant: M/s .G.Dhananjai
Counsel for the Respondents: M/s.D.Rajasekhar Gupta-R1
QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO,RESIDENT.
AND
SMT.M.SHREESHA, MEMBER.
TUESDAY, THE THIRD DAY OF AUGUST,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.919/2004 on the file of District Forum-III, Hyderabad, opposite parties preferred this appeal.
The brief facts as set out in the complaint was that the complainant met with an accident on 15-12-1999 at Kalwakurthy while she was travelling on a Hero Honda as pillion rider. The complainant was brought to opposite party No.2 who diagnosed fracture on the right hand requiring surgery and advised her to be admitted at Vani hospital on 16-12-1999 and conducted a surgery inserting a nail into the right humerus to facilitate the union of fractured bone and the complainant was discharged after 5 days. An x-ray was taken on the 5th day and it showed a gap between the bones but opposite party No.2 assured the complainant that there would be reduction in due course and advised to consult at opposite party no.1 hospital once every week. The complainant that there was pus formation within a fortnight after the surgery causing severe pain and on consultation, opposite party No.2 advised medication and assured recovery in due course. The complainant submitted that in the month of March, 2000, opposite party No.2 advised her to undergo “Montoux” test to rule out bone T.B. and though the report was negative, opposite party No.2 had administered 40 doses of Ambestrin and Rcinex tablets. The said treatment continued for 8 months during which periodic x-rays and culture sensitivity tests were conducted and there was no alleviation in pain. Unable to tolerate, the complainant sought advice from Dr.Jairam Pingle, who advised opposite party No.2 to remove the nail which was inserted during the time of surgery and accordingly the same was removed on 8-11-2000 and plaster of paris was applied and opposite party No.2 reassured her that union of bones would take place. The treatment continued for another three months and an x-ray, was taken on 21-1-2001, which revealed that the fractured bone was in the same condition as it was on the date of accident and thereafter opposite party No.2 referred her to consult Dr.Harisharma of Tapadia Diagnostic Centre for a surgical procedure ‘Haziro’ which costs huge expenditure. The complainant submitted that she lost confidence on opposite party No.2 and hence approached Dr.Jairam Pingle at Apollo hospital on 14-6-2002 and he conducted a second surgery on the right humerous following the procedure of ORIF with DCP + Bone graft. The complainant submitted that following the second surgery, there was reduction in the right humerous fracture and the bone had healed in about four months. It is the complainant’s case that due to wrong procedure adopted by opposite party No.2, she was subjected to prolonged pain and suffering and she had to repeatedly commute between Kalwakurthy and Hyderabad, incurring lot of expenditure. She got issued a legal notice on 9-3-2003 and filed the complaint claiming Rs.3,00,000/- being the medical expenses incurred by her during the period from 15-12-1999 to 14-6-2002 together with compensation of Rs.10,00,000/-.
In the version filed by opposite parties 1 and 2, opposite party No.2 admitted that he performed surgery on the complainant as per the universally accepted procedure of inter nail fixation of fractures. It is stated that the complainant was discharged earlier due to her request and that the complainant did not follow the instructions and advice given by him. Opposite party No.2 alleged that pus formation was a result of negligence by the complainant in not using the prescribed medicines and that pain and non-union of the bone are natural consequences of an infection developed due to non use of antibiotics. Opposite party No.2 further contended that the in view of the delay of the union of the fractured bone, he suggested bone grafting but the complainant insisted on consulting Ayurvedic doctor at Puttur and as per his advice she had the nail removed on 8-11-2000. He also submitted that in order to rule out other probabilities, he advised “Montoux” which was reported negative. Opposite parties denied that Plaster of Paris bandage was applied after the removal of nail and stated that the complainant did not consult him after 21-1-2001 and that also denied that an x-ray was taken on 21-1-2001 and it revealed non union of the right humerous and refer to Doctor Harisharma. They further submitted that the complaint is barred by limitation and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to 37 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite parties to pay a sum of Rs.1,50,000/- as compensation and a sum of Rs.2,000/- as costs to the complainant payable within two months.
Aggrieved by the said order, opposite parties preferred this appeal.
It is the complainant’s case that she met with an accident on 15-12-1999 and was brought to opposite party No.1 hospital where opposite party No.2 examined the complainant and advised surgery to set the fracture on the right hand and he conducted the surgery on 16-12-1999 inserting a nail in the right humerus to facilitate the union of the fractured bone. Ex.A1 evidences this diagnosis of fracture of right humerus L 1/3. Ex.A4 evidences that surgery was conducted under general anesthesia by nail fixation and that the complainant was discharged on 21-12-1999. As per Ex.A5, the complainant consulted opposite party No.2 doctor on 29-12-1999 and again as per Ex.A6 on 04-1-2000. Ex.A7 evidences that the complainant was advised an x-ray on 17-1-2000 and Ex.A8 is the prescription dated 5-2-2000 wherein Inj.Tobobon was advised for one month and a review after 10 days. The complainant visited the doctor again on 11-2-2000, Ex.A10 and the same medication was advised to be continued. It is the complainant’s case that she continued to follow up with opposite party No.2 doctor (Ex.A11 to A21) and she was even advised by opposite party No.2 to undergo ‘Montoux test’ to rule out bone T.B. The complainant contends that even though the result was negative, opposite party No.2 administered 40 doses of Ambestrin and R.Cinex tablets which continued for 8 months. Unable to bear the pain, the complainant visited Dr.Jayaram Pingle, who advised removal of the nail and a culture test of the pus and this was removed and an alternative procedure was performed to remove pus. The discharge summary of Apollo hospitals wherein the nail was removed (Ex.A29) states as follows:
‘Oriflograft from bone back was tightly packed around the fracture site
along with garamycin implant. After wound wash, closure was done in layers with a suction means
Finally skin was closed by subcuticular means
Aseptic betadine compressing dressing applied”.
It is evident from the history of the patient that the patient developed infection. The complainant went to Dr.Jairam Pingle and under whose treatment an alternative procedure was done on 14-6-2002 and there was union of the bone by 2-5-2003.
The learned counsel for the appellant/opposite party contended that the complainant compelled the appellant to remove the nail inserted during the time of surgery on 8-11-2000 and the appellant applied a bandage made of Plaster of aris on the injured hand and the appellant doctor suggested the patient to be cautious and keep her plastered hand stationary and in some cases, the bandage will bind the fractured bone. Before the nail removal surgery, the doctor also advised the patient to undergo either a procedure ‘Illaziro or Bone graft’. He further contended that the complainant never followed the prescription or the advise given by the appellant doctor after the surgery. The complainant got the sutures removed on 21-1-2001 and never appeared again for review before the appellant doctor. A brief perusal of the record shows that this contention of the appellant/opposite party that the complainant never went to opposite party for reviews or never followed the prescription or advise given by opposite party No.2 is unsustainable as seen from Exs.A11 to A21 and also Ex.A23 when the complainant went back to opposite party No.2 doctor and continuously consulted him for a period of 13 months for both pain and non union of bones. We also observe from the record that no informed consent was taken by appellant/opposite party No.2 explaining the prognosis and risks prior to conduction of the surgery.
We rely on the judgement of the Hon’ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC 1 wherein the Supreme Court opined that it is for the doctor to decide, with reference to the condition of patient, nature of illness and the prevailing established practices as to how much information regarding the risks and consequences should be given and how they should be couched in the best interest of the patient. The Supreme Court summarised the principles relating to ‘consent’ as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
Keeping the aforementioned reasons, that is, the patient has continuously consulted opposite party No.2 for a prolonged period of 13 months for pain and non union of bones but it was only after she underwent a second opinion and an alternative procedure was performed which necessitated hospitalization and suffering and also that informed consent was not taken, we are of the considered view that there is deficiency in service on behalf of the opposite parties. However, taking into consideration that there was no ultimate permanent disability, we find it a fit case to reduce the compensation from Rs.1,50,000/- to Rs.1,00,000/- while we confirm the costs of Rs.2,000/-.
In the result this appeal is allowed in part modifying the order of the District Forum by reducing the compensation from Rs.1,50,000/- to Rs.1,00,000/- and confirming the rest of the order of the District Forum. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt03-8-2010
