BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 30/10/2008

Date of Order : 31/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 411/2008

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant underwent treatment at the 1^st opposite party hospital under the 2^nd opposite party from 09-07-2008 to 13-07-2008 for the injury sustained on her left thumb. The 2^nd opposite party treated the injury by a surgery. Since, the complainant could not move her thumb after the surgery and the healing of the wound the complainant approached the 2^nd opposite party. As per the direction of the 2^nd opposite party, the complainant underwent physiotherapy. Since there was no improvement, again the complainant approached the 2^nd opposite party. The 2^nd opposite party directed the complainant to undergo another surgery and also directed to deposit Rs. 40,000/- towards the same. The disability of the thumb has been caused only due to the deficiency in service on the part of the 2^nd opposite party. As per the expert opinion of the doctors in Amritha Institute of Medical Science and Research Centre, Ernakulam, the complainant again underwent treatment at Laxmi Hospital, Perumbavoor and underwent the 2^nd surgery. The complainant had to be in the hospital from 07-09-2008 to 10-09-2008. The complainant had to spend a total sum of Rs. 30,000/- towards treatment expenses. During surgery at the 1^st opposite party hospital, the 3^rd and 4^th opposite parties were also present. All the opposite parties are liable to pay compensation to the complainant for the inconveniences and mental agony, which she had suffered due to the rash and negligent treatment of the opposite parties. Thus, the complainant is before us seeking direction against the opposite parties to pay a compensation of Rs. one lakh with interest together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

On 19-07-2008 at about 6.50 p.m., the complainant approached the 1^st opposite party with injury on the left hand. The general surgeon of the 1^st opposite party examined the complainant and referred her to the 2^nd opposite party Orthopedic surgeon. The injury was diagnosed as tendon injury. The case was taken up for surgery on the same day by Dr. Prasannan and assisted by Umasanker. The wound was thoroughly cleaned and the Extensor Pollicis Longus Tendon and Abductor Pollicis Brevis tendon was repaired by Paul Bannul technique using vicryl suture material and non-absorbable ethylene suture materials. Her wrist was then immobilized with plaster of paris slab. The patient was discharged on 13-07-2008. The sutures were removed on 21-07-2008 and the POP slab was removed on 28-07-2008. She was then advised to get admitted for physiotherapy, but the complainant refused to do so. On 01-08-2008, when she came to the OPD, it was found that the tendon had given away and hence repair was advised. But the patient did not turn up. The giving away of a repaired tendon after injury is a known and widely accepted complication. This complication is beyond the control of the opposite parties. The opposite parties had given standard treatment and the best attention and care. The complainant is not entitled to get the reliefs as prayed for.

3. The 2^nd and 3^rd opposite parties filed separate versions raising the very same contentions that of the 1^st opposite party.

4. In spite of receipt of notice from this Forum, the 4^th opposite party opted to remain absent for reasons of his own. The complainant was examined as PW1 and Exts. A1 to A6 were marked on her side. The witness for the complainant was examined as PW2. The 2^nd and 3^rd opposite parties were examined as DWs 1 and 2. Ext. X1 also was marked. Heard the learned counsel for the contesting parties.

5. The points that arose for consideration are as follows :-

1. Whether the opposite parties are liable to pay a compensation of Rs. one lakh to the complainant?

2. Whether the complainant is entitled to get costs of the proceedings from the opposite parties?

6. Point No. i. :- The following issues are undisputed :

1. On 09-07-2008, the complainant sustained lacerated would left base of thumb.

2. The injury was diagnosed at the 1^st opposite party hospital as 'Extensor tendon injury of thumb'.

3. The complainant had undergone wound debridement extensor tendon repair on 09-07-2008 at the 1^st opposite party hospital.

4. She had undergone inpatient treatment at the 1^st opposite party hospital from 09-07-2008 to 13-07-2008 evident from Ext. A6 case sheet.

5. Subsequently on 01-08-2008, it was found that the tendon had given away.

6. The complainant had to consult Amritha Institute of Medical Science and Research Centre, Kochi and to undergo 2^nd surgery to repair the tendon on 08-09-2008 at Laxmi Hospital, Perumbavoor evidenced by Ext. X1 case sheet.

7. She spent Rs. 6,116/- towards treatment expenses at the 1^st opposite party hospital evident from Ext. A2 series bills (14 in numbers).

8. She expended Rs.19,709.60 for the 2^nd surgery at Laxmi Hospital, Perumbavoor evidenced by Ext. A5 series (12 in numbers)

6. According to the complainant, the 2^nd opposite party had performed the surgery to repair her tendon injury on her left thumb. She maintains that due to the negligence and laches on the part of the 2^nd opposite party in performing the surgery, she had to undergo another surgery at Laxmi Hospital, Perumbavoor. It is stated that she is entitled to get a compensation of Rs. One lakh from the opposite parties for the mental agony, inconveniences and financial loss suffered by her.

7. On the contrary, at the outset, the opposite parties vehemently and vigorously contended that the surgery had been performed by the 3^rd opposite party who was examined as DW2 and assisted by the 4^th opposite party. According to the opposite parties, they had adopted standard line of treatment and the failure or complication, if any is only a known medical complication, and therefore, that cannot be termed as a medical negligence on the part of the opposite parties.

8. Ext. A6 is the case sheet seized from the 1^st opposite party hospital at the instance of the complainant. Ext. A6 goes to show that the surgery of the complainant was performed by the 3^rd opposite party (DW2) and assisted by the 4^th opposite party. The complainant contended that the 2^nd opposite party (DW1) performed the surgery and it is evident from Ext. A1 discharge summary. DW2 during evidence deposed that DW1 had issued Ext. A1 in his capacity as the Head of the Department of Orthopedic and Traumatology at the 1^st opposite party hospital. We think that there is nothing unusual on the part of DW1 in issuing Ext. A1 being the Head of the Department of the 1^st opposite party, though he had not performed the surgery.

9. Now, the focal point to be discussed is whether there is negligence or laches on the part of the doctors who performed surgery on the complainant. The opposite parties stated that they have performed the tendon repair surgery of the complainant by applying “Paul Bannul Technique”. Uncontroverted. The only shortfall raised by the complainant on the part of the opposite parties is with regard to the post-operative treatment of the complainant. According to the complainant, the opposite parties failed to apply plaster of paris cast to avoid further complication at the repaired area. DW2 deposed that though the term used in Ext. A6 case sheet is 'splint' he had applied plaster of paris slab on the hand of the complainant. It is pertinent to note that the complainant vehemently disputed the application of plaster of paris slab on her hand but she does not have a case that the opposite parties did not apply splint on her hand during post-operative treatment. Evidently, the complainant provides no proof that post-operative measures had been taken by the opposite parties, failing which she would not be in the present state of condition. So, the contention to the contrary has not to be upheld without adequate evidence which is present in this case.

10. PW2 is the doctor who did the 2^nd surgery at Laxmi Hospital, Perumbavoor. PW2 deposed that the procedure adopted by the opposite parties at their hospital is the standard procedure for tendon repairs and even if standard procedure is adopted, there are chances of failure and it is a well documented medical complication. Further, he stated that he could not find any negligence on the part of the opposite parties in treating the complainant.

11. In short, neither expert opinion nor medical literature is on record to come to a conclusion that there was negligence or laches on the part of the opposite parties during pre-operative treatment, surgery and post operative treatment. Not to mention why a doctor who performs the surgery or another who assists him in the same should be negligent in the operation, the failure of which could go to mar their very reputation a risk which no reasonable person would even think about.

12. According to the Hon'ble Apex Court, as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence (Kusum Sharma and Others. Vs. Batra Hospital & Medical Research Centre and Others. (Supreme Court) (CP) 2010 CTJ P 241.

13. The Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab and Another (2005) 6 SCC 1), held that “a doctor can be held liable only if his conduct fell below the standard of a reasonably competent practitioner in his field.”

14. In the above circumstances, the onus is heavily on the complainant to establish the alleged medical negligence by cogent, acceptable as well as reliable evidence including the expert evidence, unless per se there must be sufficient materials to apply the maxim 'res-ipsa-loquitur' which is absent in this case.

15. For the reasons stated above, we do not find any medical negligence on the part of the opposite parties as alleged by the complainant.

16. In the result, we are only to dismiss the complaint. Ordered accordingly.

Pronounced in the open Forum on this the 31^st day of May 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========