Tamil Nadu

South Chennai

CC/144/2014

S.Sridevi - Complainant(s)

Versus

Padmini Nursing Home - Opp.Party(s)

M/s. Sunil Sudhakar Shanker

01 Aug 2017

ORDER

                                                                        Date of Filing :   19.03.2014

                                                                        Date of Order :   01.08.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

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

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.144/2014

TUESDAY THIS  1^ST    DAY OF AUGUST 2017

 

Mrs. S. Sridevi,

No.1/2  Vasuki Street,

Thiruvalluvar Nagar,

Arumbakkam,

Chennai – 106.                                            .. Complainant

                                        ..Vs..

 

1.  M/s. Padmini Nursing Home,

Rep by its Proprietor Mr.Rajaram,

No.9, Pachiyappas College Hostel Road,

Chetpet, Chennai 600 031.

 

2. Dr.N.D.M.Ismail, M.S (Ortho),

Orthopedic Surgeon,

M/s. Padmini Nursing Home,

No.9, Pachiyappas College Hostel Road,

Chetpet, Chennai 600 031.                        .. Opposite parties.

 

 

Counsel for Complainant         :    M/s. Sunil Sudhakar Shanker & others

Counsel for opposite parties    :    M/s. V.R. Thangavelu

ORDER

THIRU. M. MONY, 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 pay a sum Rs.1,00,000/- for unnecessary financial hardship in paying the additional medical expenses for wrong treatment and Rs.1,00,000/- towards the deficiency of service and Rs.1,00,000/- towards mental agony and  to pay cost of the complaint.

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

         The complainant submit that the complainant’s daughter Miss. Nithyasree met with an accident on the evening of 27.9.2012 while skating at the Nehru Stadium rink.  Thereafter the complainant’s daughter was immediately admitted with the 1^st opposite party for treatment of Left Arm Fracture on 27.9.2012 around 8.30. p.m.  The duty doctor of the 1^st opposite party as an ad-hoc measure roughly applied “plaster of Paris”.   The complainant further contended that the next day the 2^nd opposite party was able to see the minor and view the x-ray concluded that there was a fracture and asked the hospital staff to prepare for operation.   After the treatment the complainant’s daughter was discharged on 29.9.2012.      Further the complainant state that on 1.10.2012 she brought her daughter to the 1^st opposite party for  check up and x-ray was taken, as the child still complained of pain in the arm.    Again on 3.10.2012 the complainant’s daughter was brought for check up and at that time the 2^nd opposite party informed the complainant that surgery was required and a Plate has to be fixed on the left arm and the estimated cost of the surgery as Rs.30,000/-.    The complainant had already spent Rs.28,490/- towards the earlier treatment. 

2.     The complainant further state that her daughter was admitted in Appasamy Hospital, Arumbakkam on 7.10.2012 for review and a second opinion was given by the doctors.  Upon review the doctors at Appasamy hospital advised her that the earlier treatment had not set right the broken arm and that surgery had to be performed to correct the faultily set bones in the arm.    The complainant replying on their advice agreed to proceed with the surgery.    Accordingly the complainant sent a legal notice through her lawyer to both opposite parties on 22.11.2013 but the 1^st opposite party sent reply notice.      As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in Written Version of  the opposite parties    are as follows:

        The opposite parties deny all the allegations contained in the complaint except those which are specifically admitted herein and this opposite parties puts the complainant to strict proof of each and every allegation.   The opposite parties submit that the POP was not applied as an ad-hoc measure, but was part of the recognized and accepted treatment, to reduce the swelling and to curtail movements of the bones at the place of fracture and elevation of the limb was done to prevent compartment syndrome.    On 28.9.2012 the examination revealed fracture of both bones in forearm.    Since the swelling of the forearm had not reduced,  the patient was advised to have  arm in the elevated posture.    The re-examination of patient in the afternoon revealed that the swelling had reduced satisfactorily.   In this kind of forearm fracture closed reduction is the universally accepted initial stage treatment without operation.   The opposite parties further contended that the patient once again came for review on 3^rd October 2012 and x-ray was taken to check up about the improvement in the bone alignment.    The x-ray relieved that there was further slippage of the fractured bone from the aligned place.    The 2^nd opposite party states that there are three kinds of universally recognized surgical treatments for fracture of forearm, which are i)Open reduction and internal fixation with plate and screws 2) Intramedullary fixation.3) External fixation.  The opposite parties further contended that K wire fixation is having its own risk factor; it can be administrated at later stage.    The treatment advised by the 2^nd opposite party was universally accepted and recognized and that there was no deficiency on the part of the opposite parties while performing “closed reduction or advising surgery because of slippage of the fractured bone.    Hence there is no deficiency in service on the part of the opposite parties and therefore this complaint is liable to be dismissed.

4.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as her evidence and documents Ex.A1 to Ex.A9 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B4 marked on the side of the opposite parties.  

 

 

5.   The point for the consideration is:  

 

1. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards the unnecessary financial hardship and additional medical expenses for wrong treatment as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards deficiency of service and a sum of Rs. 1,00,000/- towards mental agony  with cost as prayed for? 

6.    POINT Nos.1 & 2 :-

          Heard both sides.  Perused the records. The learned counsel for the complainant contended that the injured Miss. Nithyasree is the minor daughter of the complainant who met with an accident on the evening of 27.9.2012 while skating at Nehru Stadium rink.   Immediately after the accident the complainant took her minor daughter Nithyasree and admitted before the 1^st opposite party for her treatment of Left Arm Fracture at 8.30. p.m.   The learned counsel for the complainant further contended that at the time of admission the 2^nd opposite party was not readily available only duty doctor alone available and as an ad-hoc measure they roughly applied “Plaster of Paris” bandage and informed that the surgeon would visit the hospital only in the next day morning.    The complainant’s daughter suffered with excessive pain and cried the whole night.  The said contention were not denied by the opposite parties anywhere in this case establish the deficiency of service.

7.      The learned counsel for the complainant further contended that on the next day the 2^nd opposite party examined the minor daughter and after looking studying x-ray concluded that there was a fracture in the left Forearm.  The 2^nd opposite party administered closed reduction and  discharged the minor daughter on 29.9.2012 and advised to  come for review on 1.10.2012.   The complainant regularly attended the review before the 2^nd opposite party with pain two to three times.  On 3.10.2012 the 2^nd opposite party administered x-ray and informed the complainant that one more surgery required to fix a plate and the estimated cost of the surgery should be Rs.30,000/-.  The learned counsel for the complainant further contended that she had already spent a sum of Rs.28,490/- for the simple fracture of left forearm; within seven days the same the opposite parties administered further surgery for fixing plate proves the deficiency of service, leading unfair trade practice.   The learned counsel for the complainant further contended that the volumes of contention raised by the opposite party regarding the administration of POP and recommendation of surgery for fixing plate has not been denied in this  case establishes negligence  and unfair trade practice of the medical practitioners.  The complainant is claiming a sum of Rs.1,00,000/- towards medical expenses incurred for the treatment and Rs.1,00,000/- towards deficiency of service and Rs.1,00,000/- towards mental agony with cost.

8.      The learned counsel for the opposite parties would contend that the 1^st opposite party is the reputed nursing home established in the year 1999 but no document produced.     The 2^nd opposite party has not  applied POP as an ad-hoc measure  but it was  part and parcel of the   recognized and accepted  treatment to reduce the swelling and to   curtail movements of  the bones at the place of fracture  and elevation   of   the   limb  to  prevent  compartment  syndrome  was administered.   But  it is  very  clear  from  the  date  of  accident  itself  x-ray  shows  both  bone fracture in left forearm.   Hence the mere application of POP, a recognized and accepted method of treatment is apparently not applicable in this case.   Further the learned counsel for the opposite parties contended that on 28.9.2012 after examining the injured minor closed reduction was conducted after administration of general anesthesia and after due arrangement of fractured bone.   But the persistent pain of the minor has not been denied.  Further the learned counsel for the opposite parties contended that after due review of x-ray on 3.10.2012 the  opposite party-2 advised for surgery for fixing of plate.  On hearing the 2^nd opposite party the complainant without following further treatment undergone K wire fixation treatment with Appasamy Hospital and filed this case.   The learned counsel for the opposite parties further contended that there are three kinds of  universally recognized surgical treatments for fracture of forearm i) open reduction and internal fixation with plate and screws ii) intramedullary fixation and iii) external fixation.  The first and foremost was administered initially.  Since it was not materialized proper surgery and fixing plate was advised.   K wire fixation is having its own risk factor; it can be administrated at later stage.   Since the 2^nd opposite party took much care the POP was administered.  But it is very clear that from the x-ray that this is a case of both bone fracture of left forearm. Where the POB treatment is sufficient as diagnosed by the 2^nd opposite party.

 

9.     The learned counsel for the opposite parties cited a decision reported in     

        2010-1-L.W.846

Ins. Malhotra

..Vs..

A.Kirplani and others

 

(2010) 3 Supreme Court Cases 480

KUSUM SHARMA AND OHTERS

..Vs..

BATRA HOSPITAL AND MEDICAL RESEARCH CENTRE

AND OTHERS

 

 

Further  the learned counsel for the opposite parties contended that the complainant do not substantiate the medical negligence  on the part of the opposite parties or deficiency of service in this case.   The complainant had not adduced any expert opinion to substantiate the treatment diagnosed and administrated by the opposite parties as unreasonable.   But on a careful perusal of the records and the plea of persistent pain and administration of POP for both bone fracture and within a week advising to have a surgery establishes the negligence in treatment.   Considering the facts and circumstances of the case this forum is of the considered view that the complainant is entitled to a sum of Rs.1,00,000/- towards medical expenses and a sum of Rs.25,000/- towards mental agony and Rs.25,000/- towards deficiency of service with cost of Rs.5,000/- and points 1 & 2 are answered accordingly.

        In the result, the complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards medical expenses and also compensation of Rs.25,000/- (Rupees twenty five thousand only) towards mental agony and Rs.25,000/- (Rupees twenty five thousand only) towards deficiency of service with cost of Rs.5,000/- (Rupees five thousand only) 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  1^st  day  of  August 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants” side documents:

Ex.A1-         -       - Copy of medical bill.

Ex.A2- 28.9.2012

          1.10.2012   

 3.10.2012   )  Copy of x-rays.

 

Ex.A3- 8.10.2012  - Copy of x-rays.

Ex.A4- 6.3.2013    - Copy of x-rays.

Ex.A5- 29.9.2012  - Copy of discharge summary.

Ex.A6- 8.10.2012 - Copy of discharge summary.

Ex.A7- 22.11.2013         - Copy of Lawyer notice.

Ex.A8- 22.11.2013

           27.11.2013          Copy of Ack. card.

Ex.A9- 6.12.2013  - Copy of reply notice.

 

 

Opposite parties’ side document: -   

Ex.B1-         -       - Copy of pages from Cambell’s operative Orthopaedics,

                               Twelfth edition.

 

Ex.B2-         -       - Copy of pages from rockwood and Wilkins factures in

                              children Seventh Edition.

 

Ex.B3-        -       - Copy of pages from Tachdjian’s perdiatric Orthopaedics

                              fourth edition volume III

 

Ex.B4- 8.1.2004    - Copy of Detailed reply to legal notice.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.