Tamil Nadu

StateCommission

FA/157/2013

THE CHAIRMAN AND SURGEON - Complainant(s)

Versus

S. GUNASEKAR - Opp.Party(s)

RAJNIGH PATHIYIL

23 Jun 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH           :     PRESIDENT

                 THIRU R. VENKATESAPERUMAL                             :      MEMBER

 

F.A. Nos. 157 of 2013 and 93 of 2014

(Against the order passed in C.C. No.193 of 2011 dated 05.03.2013 on the file of the D.C.D.R.F., Chennai (North).

 

Thursday, the 23^rd day of June 2022

In F.A. No. 157 of 2013 :-

 

The Chairman and Surgeon

M/s. Life Line Multi Speciality Hospital

No.47/3, New Avadi Road

Kilpauk, Chennai–  600 010.                                   .. Appellant/ Opposite Party

                                                                                     

                                                          - Vs –

Mr. S. Gunasekar            

65/2, Annai Indira Street

Thirupathi Nagar Extn.,

Kolathur, Chennai – 600 099.                                   .. Respondent/ Complainant

                                                                            

In F.A. No. 93 of 2014 :-

Mr. S. Gunasekar            

65/2, Annai Indira Street

Thirupathi Nagar Extn.,

Kolathur, Chennai – 600 099.                                  .. Appellant/ Complainant                                                                          

Vs.

The Chairman and Surgeon

M/s. Life Line Multi Speciality Hospital

No.47/3, New Avadi Road

Kilpauk, Chennai–  600 010.                                   .. Respondent/ Opposite Party

Counsel for Appellant/ Opposite Party

          in FA No.157/2013 &

Respondent in F.A. No.93/2014                     :    M/s. K. Vijayaraghavan

                                                                                     

Counsel for Respondent/ Complainant in

FA No.157/2013 &

Appellant in FA No.93 of 2014                      :  M/s. V. Balaji

                                                                            

These appeals are coming before us for final hearing on 13.05.2022 and on hearing the arguments of the counsel for the appellant in FA No.93 of 2014 and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

1.       Both these appeals have been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 05.03.2013 passed by the District Consumer Disputes Redressal Forum, Chennai (North), in C.C. No.193 of 2011.  F.A. No.157 of 2013 has been filed by the opposite party to set aside the order of the District Forum.  F.A.No.93 of 2014 has been filed by the complainant seeking for enhancement of the compensation amount.

 

2.  For the sake of convenience, the parties shall be referred to here, as per the ranking before the District Forum.

 

3.  The factual background culminating in this appeal is as follows:  The case of the complainant before the District Forum is that the complainant had undergone Laparoscopic Hernia surgery on 08.03.2011 in the opposite party hospital.  Since the complainant is a government employee, the entire medical expenses of Rs.43,590/- has to be paid by Star Health and Medical Insurance company.  Whereas the Insurance company paid only Rs.23,590/-.  Hence the complainant paid the balance amount of Rs.20,000/- and the laboratory fees of Rs.5020/-.  After paying the said amount, the complainant made a claim with the Star Health and Medical Insurance for payment of Rs.25,020/-.  But the Insurance company refused to pay the said amount stating that on 08.03.2011 the complainant had undergone 2 surgeries and therefore, he is not entitled for the entire amount.  Since the surgery was not performed properly, fluid clot has developed in the operated area.  Hence, the complainant was again admitted with the opposite party hospital on 26.05.2011 and had undergone second surgery for which a sum of Rs.13,524/- was collected as fees.  Even thereafter there was oozing of fluid from the operated area.  Therefore, the complainant had no other alternative except to undergo another surgery on 22.08.2011.  Since there was a medical negligence in performing the laparoscopic surgery on 08.03.2011, the complainant was forced to undergo the subsequent surgeries.  Therefore, there is deficiency of service on the part of the opposite party in performing the laparoscopic surgery.  The complainant sustained severe mental strain.  Hence, he filed the complaint before the District Forum, seeking the following directions to the opposite party :-     

1. to pay a sum of Rs.20,050/- that has been paid by the complainant towards medical expenses for the first surgery;
2. to pay a sum of Rs.13,524/- towards the fee incurred for the second surgery ;
3. to pay another sum of Rs.12,000/- being the medical expenses incurred by the complainant;
4. to pay a sum of Rs.50,000/- towards the subsequent surgery; and
5. to pay a sum of Rs.50,000/- towards mental agony and sufferings.

 

  4.  The said complaint was resisted by the opposite party by filing a written version, stating that the complaint is not maintainable, as the complainant has failed to implead Star Health and Allied Insurance Company, which had provided insurance coverage for the complainant in respect of surgeries and hospitalization.  The complainant underwent Hernia repair with Mesh plasty by a laparoscopic method in the hospital of the opposite party on 08.03.2011.  The indication of the surgery was a condition of “Recurrent Inguinal Hernia”.  As per the previous history, the complainant had undergone Hernia repair surgery in KMC Hospital in the year 2007 and it is also evident from the case history of the complainant.  Had the surgery been successful for the patient to gain a normal recovery, there would not have been any need to go for another surgery for the relapse of Hernia, as the condition was more severe than it appeared.  Therefore, it remains imperative to understand that the condition was already a recurring one.  Medically the complainant had direct and indirect components of ‘Inguinal Hernia’.  In the medical records, it is stated that the patient indirect sac had ‘omental adhesions’ within it.  Hence, it needed to be released and the sac has to be closed.  There was no communication with regard to the payment method of the second scheme.  The Star Health Insurance vide their email dated 03.07.2011 raised a query about the payment for the ‘lap adhesiolysis’ procedure, for which the opposite party had explained that ‘lap adhesiolysis’ would not come under the insurance scheme and hence the amount was collected for the same.  The complainant had developed further complications at the site of hernia, which was suggestive of a small serous collection.  This is a known complication of the Hernioplasty surgery and the complainant was advised to undergo exploration and drainage in OT with aseptic precautions with anesthesia after which ‘Adhesiolysis’ was performed.  The single most challenging and critically important aspect to ensure a successful laparoscopic repair of the hernia defect is performing the adhesiolysis.  This is necessary to ensure the correct identification and delineation of the abdominal wall defect, identify the additional multiple small defects that are commonly present in incisional hernia, avoid visceral injury for which a dissection is done under vision and in turn adequate peritoneum space free of adhesions is created for the mesh attachment to the abdominal wall.  Due to the complex nature of this part of the procedure, ‘Adhesiolysis’ is considered as an additional step involved.  Therefore, the Adhesiolysis component was not covered under the insurance policy produced by the complainant and so the complainant was asked to pay the amount for the second procedure i.e. Adhesiolysis separately, which was done after getting the same clarified by the Star Insurance.  Further, the complainant failed to come for regular follow ups and the condition could not be monitored by the opposite party Hospital.  As per the hospital records the complainant seemed to have visited for only one consultation post surgery, i.e. on 26.04.2011 and after that, he turned up only for the second correctional surgery on 26.05.2011.  It is incorrect to state that only one surgery was done on the complainant. The first surgery was ‘Hernioplasty’ and after going to the site of the surgery, it was found that ‘Adhesiolysis’ was also required to be done.  Therefore the second surgical procedure was also done.  This does not mean that a fresh incision was made but the second surgery was necessitated on opening up the site and on finding that the 2^nd surgical procedure of ‘Adhesiolysis’ had become incumbent and thus, it was proceeded with.  The previous operation was ‘open anterior hernia surgery’ done at KMC.  There is a protocol to be followed by the opposite party.  Normally, adhesions are found after the abdomen is opened or if the previous laparoscopy had documented adhesions.  Neither being the case with the opposite party, severe omental adhesions were found, tackled and further proceeded with mesh placement.  In this case, it was beyond the routine hernia procedure as it involved higher specialisation and higher risks.  On 26.05.2011 the complainant developed collection of fluid at the site of hernia, after which, he underwent a drainage procedure to remove the same.  Post surgery, there was no infection at the operated site as the culture of the fluid did not show any bacterial growth as per the Microbiology report dated 26.05.2011 hence there was no infection.  To the said procedure, the hospital had charged Rs.13,524/- and unfortunately the complainant still continued to have a collection of fluid in the hernia site, post surgery.  Thus, there is no deficiency of service on the part of the opposite party. 

 

5.  In order to prove the case, on the side of the complainant along with proof affidavit, 11 documents were filed and the same were marked as Ex.A1 to Ex.A11.  On the side of the opposite party, along with proof affidavit 8 documents were filed and the same were marked as Ex.B1 to Ex.B8. 

 

6.  The District Forum, after analyzing the evidence and entire records, has come to the conclusion that the complainant had established that the opposite party was medically negligent in treating the complainant and they were deficient in their service in not able to arrest the collection of fluid and discharge through the surgical wound, even after a lapse of three months from the second surgery, hence, directed the opposite party to pay a compensation of Rs.50,000/- towards mental agony and Rs.2000/- towards costs. 

 

7.  Not being satisfied with the compensation awarded by the District Forum, F.A.No.93 of 2014 has been filed by the complainant.  Aggrieved by the order of the District Forum F.A. No.157 of 2013 has been filed by the opposite party. 

 

8.  The main submission of the counsel appearing for the complainant is that the District Forum has awarded only a meagre amount as compensation.  Due to the failure of the first surgery, the complainant underwent another surgery on 26.05.2011.  Even after second surgery, the complainant required to undergo one more surgery.  Considering the extent of mental agony undergone by the complainant, a sum of Rs.50,000/- awarded by the District Forum under the head of mental agony is extremely on the lower side.  Therefore, the compensation has to be enhanced.  However, counsel for the complainant submitted that if the sum of Rs.13,524/-spent by the complainant towards the second surgery is directed to be paid, that would suffice. 

 

9.  Though the counsel appearing for the opposite party has not appeared, they have filed a written submission stating that the complainant has not established the case of deficiency of service against the opposite party through an expert evidence.  Under such circumstances, the District Forum ought to have dismissed the complaint.  Further the District Forum had grossly failed to consider the fact that the complainant had earlier undergone hernia repair surgery at KMC in the year 2007, which is evident from the case sheet and the case history of the complainant.   As such, the complainant was well aware of his health condition and that the ailment was a recurring one.  Under such circumstances, the District Forum would have suo moto summoned and sought for expert opinion to decide the issues relating to anatomy of human body and its functions particularly in respect of the recurrent ailment of the complainant.  Further the complainant, in his complaint before the District Forum had prayed for refund of a sum of Rs.45,574/- spent towards medical expenses as the same was disallowed by the Star Insurance Company, without impleading the Star Insurance company as a necessary party in the complaint.  Therefore, the complaint ought to have been dismissed for mis-joinder of necessary parties.  The opposite party had attended the complainant with due care and attention whereas the complainant mulcted the opposite party hospital with liability to pay monetary compensation, which the complainant was unable to get from the Insurance company.  The opposite party had sent a letter dated 13.07.2011 to the Insurance company marked as Ex.B2, which was not considered by the District Forum.  Further, the District Forum had failed to consider Ex.B5 marked by the opposite party, which is a consent form of the complainant before performing the surgery, which explains the nature and purpose of the operation/ procedure by informing the patient of the expected complications, discomforts and alternatives to the proposed treatment.  The District Forum had failed to consider Ex.B6, Ex.B7 and Ex.B8 marked on the side of the opposite party, which are operation data, instruction forms and nurse’s notes, which clearly show the meticulous details about the medical care taken by the opposite party hospital on the complainant, from the time of admission upto the time of discharge.  Hence, the impugned order calls for interference by this Commission. 

 

10.  Keeping in mind the submissions made by the counsel for the complainant, we have carefully gone through the material available on record.  There is no representation for the opposite party.   

 

11.  The written submission filed by the opposite party is mainly on the following lines :-

1. The complainant has not impleaded the Star Health Insurance Company;
2. The complainant has not examined any expert to establish his case that there was deficiency of service on the part of the opposite party;

 

12.  It is crystal clear that the complaint has been filed on the allegation of medical negligence against the opposite party.  Therefore, the question of impleading the Star Health Insurance company does not arise in this case.  The next ground of submission is that the complainant has not established his case with an expert opinion.  The fact remains that the complainant has undergone surgeries one after another.  Inspite of the same, there was collection of fluid in the operated area, which is evident from Ex.A11.  Therefore, the principle of res ipsa loquitor would apply to the facts of this case.  The second surgery has been performed only to rectify the defects caused in the earlier surgery.  But even after the second surgery, there was collection of fluid, which necessitated the complainant to undergo a third surgery, within a short span of time.  It is not a strait-jacket formula to adduce expert evidence in each and every case.    If the negligence is apparent on the side of the opposite party, there is no need to examine experts.  The factual aspects of this case clearly show that there was negligence on the part of the opposite party.  Therefore, we are not inclined to accept the submissions made by the opposite party.  However, the complainant had restricted his claim only for refund of Rs.13,524/- which amount he has spent for the second surgery and in our view, the said claim is absolutely justified. 

 

13.  Therefore, we direct the opposite party to pay a sum of Rs.13,524/- to the complainant, within a period of four weeks from the date of receipt of a copy of this order.  Except this modification, the order dated 05.03.2013 passed by the District Consumer Disputes Redressal Forum, Chennai (North), in C.C. No.193 of 2011 is confirmed in all other aspects. Accordingly, F.A.No.93 of 2014 is allowed and consequently F.A. No.157 of 2013 is dismissed.  

 

 

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT