Tamil Nadu

StateCommission

FA/16/2017

1.Dr.G.Manicks, - Complainant(s)

Versus

Palaniappan S/o. Karuppan, - Opp.Party(s)

M/s.AAV Partners

09 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

                  TMT. Dr. S.M.   LATHA  MAHESWARI,                                             MEMBER  

 

F.A.No.16/2017

(Against the order passed in C.C.No.73/2014, dated 24.03.2016 on the file of the District Commission, Thiruvallur.)   

 

 WEDNESDAY, THE 09^th DAY OF FEBRUARY 2022.

 

1.    Dr.G. Manicks,

       No.47,  Mothilal Street,

       Thiruvallur Taluk  &  District.

 

2.    Logidasans  Hospital,

       No.14, Rajaji  Street,

       Manavala Nagar,

       Thiruvallur District.                                                                                               Appellants/Opposite Parties 1 & 2. 

                                       Vs

Palaniaappan,

S/o. Karuppan,

No. 280 – A, Pavalamalli Street,

Poonga Nagar,

Thiruvallur Taluk  &  District.                                                                                              Respondent/Complainant  

 

Counsel for the Appellants/Opposite Parties 1 & 2:  M/s. A.A.V. Partners,  Advocates.

Counsel for the Respondent/Complainant:  M/s. K.A. Vimal Kumar,  Advocate.              

        This appeal is coming before us for final hearing on 17.11.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

ORDER

HON’BLE  THIRU. JUSTICE R. SUBBIAH, PRESIDENT.    

1.         This appeal has been filed by the appellants/opposite parties 1 & 2 under section 15  read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District  Commission, Thiruvallur made in C.C.No.73/2014, dated 24.03.2016 by allowing the complaint.         

2.            For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes  Redressal Commission, Thiruvallur (In short, “District Commission.”).      

3.           The facts which are necessary to decide the appeal is as follows;- The case of the complainant  is that the complainant’s wife by name Sampoornam aged about 68 years fell down in the toilet in her house on 09.04.2013 and  she was taken to the 1^st opposite party hospital on the same day by the complainant.  The 1^st opposite party advised the complainant to get his wife admitted in the 2^nd opposite party hospital and accordingly she was admitted in the 2^nd opposite party hospital.  On investigation, the patient was diagnosed as suffering from comminuted supracondylar fracture of femur in right side.   On 11.04.2013, a surgery was done and a plate was fixed during the course of operation and she was discharged on 17.04.2013. The opposite parties have collected a sum of Rs.60,000/- as fees.  The 2^nd opposite party advised the complainant’s wife to use walker to move inside the house. The 2^nd opposite party has discharged the patient without removing the dressings.  However, the 1^st opposite party subsequently came to the complainant’s house and removed the dressings. Again after two days, the 1^st opposite party came to the house and diagnosed that screws were not properly fitted, during the course of operation.  Hence, the 1^st opposite party issued a reference letter, dated 27.04.2013 advising the patient (complainant’s wife) to go to Sri Ramachandra Medical College Hospital (SRMC) Porur, Chennai.  The complainant’s wife was admitted in SRMC on 28.04.2013 and the plate was removed and re-fixed. Thereafter, the complainant’s wife was discharged on 18.06.2013.  Though the plate was removed and re-fixed in SRMC Hospital, the complainant’s wife was continuously suffering from pain.  According to the complainant, this is due to the performance of the surgery by the opposite parties in an negligent manner.  Hence, the complainant’s wife was compelled to undergo the second surgery. Therefore, on 10.09.2013 the complainant’s wife made a complaint before the Legal Aid Cell against the opposite parties and in such a situation the complainant’s wife Annapoornam died on 04.05.2014.  Hence, the complainant has filed a complaint before the District Commission against the opposite parties 1 and 2 claiming a sum of Rs.50,000/- being an additional expenses incurred  for second surgery and another sum of Rs.50,000/- towards the expenses incurred for the first surgery and  Rs.2,00,000/- as compensation for mental agony with interest at the rate of 12% per annum with cost of Rs.6000/-.                            

4.        Denying the allegations made by the complainant, the opposite parties 1 & 2 have filed a joint written version wherein they have contended inter alia that the complainant along with his wife came to the 1^st opposite party hospital on 09.04.2013 with a complaint that she fell down in the toilet.  The 1^st opposite party advised the complainant to admit the patient in the 2^nd opposite party hospital and accordingly the 1^st opposite party admitted the complainant’s wife in the 2^nd opposite party, hospital wherein she was diagnosed to have Communited  Supracondylar Fractural of femur – right side.  The complainant’s wife was a known diabetic and hypertensive patient for the past 7 years and was irregular in treatment. Her sugar level was high and her blood hemoglobin was very low.  After diagnosing the patient’s condition, it was explained to the complainant and his wife about the need for surgery with the plate fixation and also explained that the risk factors and high infection rate involved in the surgery owing to her poor sugar control.  Both understood the explanations and for the surgery signed in the consent letter. After bringing down the sugar level of the complainant, on 11.04.2013  the surgery was done by giving pre-operative blood transfusion with two units of packed cell.  During the course of operation, locking plate was fixed  which is the recent method of fixation of supracondylar fracture in old age and for osteoporotic bones. The complainant’s wife was ambulated and she was discharged on 5^th operative day in good and stable condition.  She was explained about her poor bone quality and advised non-weight bearing frame walking. The 1^st opposite party had advised the wife of the complainant for regular dressing, but the complainant and his wife expressed their inability to come to the hospital for dressing due to financial crisis. Understanding their position and on humanitarian ground, the 1^st opposite party voluntarily accepted to come to their house for dressing.  Accordingly, the 1^st opposite party went to the house of the complainant and performed sterile dressings on 8^th and 11^th post-operative day.  The complainant and his wife were very much happy and they said they should very much be thankful to him for the treatment he had given at their door-steps and further they said that they will not forget him throughout their life for the service provided by the 1^st opposite party.  After 5 days, the complainant came to the clinic of the 1^st opposite party and requested the 1^st opposite party to come to his home as his wife had fallen again when she attempted to go for toilet without any support.  The 1^st opposite party went to the complainant’s house and suspected impending hematoma due to the recent fall and asked the complainant to shift the patient to the hospital. But, the complainant and his wife refused to come to the hospital and asked the 1^st opposite party to give drugs and dressing.  The complainant’s wife was not taking insulin injection as advised by the 1^st opposite party at that time.  After two days, the 1^st opposite party went to the house of the complainant and revived the complainant’s wife and found the wound got infected and hence the 1^st opposite party refereed her to higher centre, i.e., Sri Ramachandra Medical College Hospital, Porur, Chennai for wound cover by plastic surgery and further management.  Thereafter, the opposite parties 1 & 2 had no information about the conditions of the complainant’s wife.  The 2^nd opposite party while discharging the complainant’s wife advised her to walk with walker after the dressings were removed.  Hence, there is no deficiency in service on the part of the opposite parties. The complainant has filed this complaint only to grab money from the opposite parties and to spoil their reputation and thus the opposite parties sought for dismissal of the complaint.                

5.         In order to prove their case, the complainant and the opposite parties have filed their proof affidavit independently.  Exhibits A1 to A6 were marked on the side of the complainant.  No document was marked on the side of the opposite parties.

6.           The District Commission, after analysing the evidences adduced by both sides, has come to the conclusion that there is a medical negligence on the side of the opposite parties and allowed the complaint directing them jointly and severally to pay the complainant a sum of Rs.1,05,000/- towards the medical expenses  incurred by the complainant for his wife with costs of Rs.5000/-.  Aggrieved over the same, the opposite parties 1 & 2 have preferred this appeal.  

7.       Heard the submissions made by both sides and perused the materials available on record.  The counsel for the appellants/opposite parties submitted that the complainant and  his wife, aged about 62 years came to the 1^st opposite party’s hospital on 09.04.2013 complaining that she had a fall in the toilet. Pursuant to the advice of the 1^st opposite party, she was admitted in the 2^nd opposite party hospital and on investigation, the patient was found to have communited suppracondylar fractural of femur – right side.  The patient was a diabetic and also hypertensive for the past 7 years.  Her sugar level was very high.  Surgery was performed and plate was fixed on 11.04.2013  and due to the advanced age, a locking plate was fixed which is the latest method of fixation for a supracondylar fracture, (low bone mass, micro-architectural deterioration of bone tissue leading to bone fragility, and  consequent increase in fracture risk.) . The patient was ambulated (to move from place to place, walk,) on the 2^nd post-operative day, patient’s condition was found to be good and stable.   Hence, the patient was discharged on 16.04.2013.  While discharging, the patient was advised for wound care, non-weight bearing frame walking, knee mobilization, quadriceps drill, to continue insulin and to take the following medications;-

            1.   Inj. Human Mixtard (Insulin) 50/50 – 5 units twice a day

            2.   Tab. Glemistar PM 1 – 1 bd – diabetic drug (OHA)

            3.   Tab. Lizoforce 600 – 1 bd, (antibiotic)

            4.   Tab. Afenac plus 1 bd. (Pain reliever)

            5.   Tab. Cipzen forte 1 bd ; ( to reduce swelling)

            6.   Tab. Omez 1 bd (antacid) and review after 3 days.

8.        The first opposite party informed the patient and the complainant about the need and importance of regular sterile dressings.  Since the patient and the complainant had expressed their financial inability towards the cost of travel/ commute to attend regular dressings, on humanitarian ground, the 1^st opposite party expressed his willingness to come and perform dressings at their door steps.  Accordingly, the 1^st opposite party visited the patient’s house on two occasions, on 8^th and 11^th post-operative day and performed sterile dressings at the operated area.  After 5 days, the complainant approached the 1^st opposite party at his clinic and requested him to examine the patient at their residence as the patient had suffered another fall while she made to attempt to go to the toilet without the aid of the support as advised.   The 1^st opposite party despite having other patients to attend in his clinic, rushed to the complainant’s residence to examine the patient and on examination, the 1^st opposite party suspected impending hematoma due to subsequent fall. When the 1^st opposite party requested the complainant to shift the patient to the hospital, the complainant had not agreed for the same.  Hence, they instructed the 1^st opposite party to prescribe drugs and dress the operated area. Further, the patient was not administering any insulin injections as advised by the 1^st opposite party.  When the 1^st opposite party again visited  the residence after two days,  he found that wound was infected and hence she was referred to the higher centre,  SRMC, Hospital , Porur,  Chennai for further treatment for free treatment in the free ward. Thereafter, the condition of the patient was not known to the opposite parties. Therefore, absolutely there is no error in the treatment given to the complainant’s wife by the opposite parties.  Later, the opposite parties came to know that the patient had died on 24.05.2014.  The death was not due to the fracture injury sustained by her. Moreover, no expert evidence has been let in by the complainant to prove that the opposite parties had not acted as per normal medical protocol in the given circumstances.  In this regard, the counsel for the appellants/opposite parties relied on a judgement of the Hon’ble Supreme Court of India delivered in the case of  Harish Kumar Khurana – Vs – Joginder Singh and Ors in Civil Appeal Nos.7380, 8118 and 6933 of 2009. and the decision of the Apex Court in the case of Jacob Mathew – Vs - the State of Pubnjab.  Burt, without considering all the above facts, the District Commission passed an order directing the opposite parties to refund the medical fees collected from the complainant for both the operations done.   Hence, the appeal has to be allowed by setting aside the order of the District Commission.  

9.         Per contra, the counsel for the respondent/complainant submitted that when the opposite parties knew that bones of the patient are fragile they ought to have adopted some other method for treatment. The complainant’s wife had died due to serious illness and inability and the pain caused during the last period of her life, particularly, when the first surgery was not done properly and the screws were not properly fixed. The tablets prescribed by the opposite parties are all high doses and costlier which resulted in heavy financial crisis to the complainant.  The complainant suffered and was disturbed mentally because of worries due to his wife’s death.  District Commission by considering the submissions and analysing the evidences in proper perspective manner had come to the conclusion that the opposite parties have not given proper treatment to the complainant’s wife in their hospital and thus  allowed the complaint in part directing the opposite parties 1 & 2 jointly and severally to refund the fees collected from the complainant and therefore the appeal is liable to be dismissed by confirming the order of the District Commission.  

10.        Keeping in mind the submissions made on either side, we have carefully gone through the entire materials available on record.   On perusal of the records, we find that the complainant’s wife had a fall in the toilet and sustained fractural injury on 09.04.2013 and on the same day she was admitted in the 2^nd opposite party’s hospital and on investigation it was diagnosed that it was communited supracondylar fractural of femur right side and accordingly  surgery was done on 11.04.2013 by fixing with locking plate which is the recent method of fixation for supracondylar fracture and the patient was discharged on 16.04.2013 with advice of wound care, non-weight bearing frame walking, knee mobilization, quadriceps drill, to  continue insulin and certain medications.  Thereafter, the 1^st opposite party visited the residence of the patient on two occasions, on the 8^th and 11^th post-operative days and sterile dressings were made at the operated area. The 1^st opposite party advised the patient to keep the sugar level and diabetic condition under control.  In the mean while, the complainant’s wife had suffered another fall when she had attempted to go to the toilet without the aid of the support and hence the 1^st opposite party referred the patient to a higher centre, i.e., Sri Rmachandra Medical College Hospital, Porur, Chennai for free treatment in the free ward and for further management.      

11.          From the materials available on record, we are of the opinion that it cannot be said that no proper treatment was given to the complainant’s wife.  But, it is the contention of the complainant that if the bones of the patient are very weak, the opposite parties ought to have adopted some other method. This submission of the complainant cannot be accepted since except surgery no alternative treatment was available for the fracture injury.  Furthermore, when the complainant alleged negligence on the part of the opposite parties,  he has to produce some expert evidence in order to prove their case.   But, in the instant case, no expert evidence was produced.  In this regard, reliance could be placed on the judgment of the Hon’ble Supreme Court of India rendered in Civil Appeal Nos.7380, 8118 and 6933 of 2009, wherein in the case of Harish Kumar Khurana – Vs – Joginder Singh and Ors., the Hon’ble Apex Court held that “To indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered.  The negligence alleged should be so glaring, in which event the principle of Res Ipsa Loquitur could be made applicable and not based on perception”.  It is submitted that the Forum below failed to appreciate the decision of the Apex Court,   in the case of Jacob Mathew – Vs – the State of Punjab wherein “A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, at he did not exercise, with reasonable competence in the given case the skill which he did possess’.  In the instant case the appellants/opposite parties had possessed the required skill and had also administered timely treatment using their skill.  It is pertinent to note that the 1^st Appellant is a well qualified doctor”.  On perusal of the above mentioned judgment, we find that it is squarely applicable to the facts of the present case.  But, the District Commission without considering the above facts allowed the complaint on sympathetic consideration and awarded compensation which is not correct and hence is liable to be set aside.  Accordingly, the order of the District Commission is set aside as it is not sustainable under law.  Accordingly the appeal is allowed by setting aside the order of the District Commission. 

12.         In the result, the appeal is allowed by setting aside the order of the District Commission, Thiruvallur  made in C.C.No.73/2014, dated 24.03.2016 and the complaint is dismissed without costs.   There shall be no order as to costs in this appeal.

              The Registry is directed to return the mandatory fixed deposit, if any, duly discharged in favour of the opposite parties with accrued interest thereon.  

 

 

 

S.M. LATHA MAHESWARI,                                                                                                                                R. SUBBIAH,

           MEMBER.                                                                                                                                                    PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Feb/2022