IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 26th Day of December 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.68/14
Nidhin : Complainant
S/oSuresh
Puthanthurayil Poomukath
Neendakara, Kollam
[By Adv.S.G.Jayan]
V/s
1.Secretary/Person In Charge : Opposite parties
Sree Narayana Trust Medical Mission
Hospital, PB No.32
Kollam-691001
[By Adv.George Mathews]
2. Dr.Manu Rajendran(Ortho)
S.N Hospital
P.B.No.32
Kollam-691001
[By Adv.A.Sudheer Bose]
ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act. The averments in the complaint in short are as follows.
On 15.08.11 the complainant involved in a motor accident case and has sustained fracture above the right wrist. Immediately he was removed to the Sanker’s Hospital, Kollam where he was treated. On 02.08.11 surgery was done by Dr.Manu Rajendran (2nd opposite party) and has also inserted two plates on his right wrist. However on 25.08.13 he was discharged. At the time
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of discharge the 2nd opposite party informed him that plate can be removed any day after 6 months. After 6 months when the complainant visited the 2nd opposite party doctor and requested to remove the plates. The said doctor advised the complainant to retain the plates for 6 months more. At that time also the doctor has examined the injured wrist of the complainant. However on the months of April 2012 when the complainant approached the doctor he was advised to take X-ray and after verifying the X-ray doctor opined that the bone has been joined and plate can be removed at any time. On the strength of that advise of the 2nd opposite party the complainant got admitted at 1st opposite party hospital during the month of May 2013. The 2nd opposite party has again conducted surgery of that wrist but the plate and the wrist bone were joined and the doctor has attempted to forcefully separate the plate from the bone and hence the bone again broken. The complainant at the time of undergoing that operation was conscious oriented. After conducting the said surgery the doctor has left the hospital without informing the complainant and his relatives regarding the result of the 2nd surgery. On enquiry the hospital authorities evaded by stating that it so happened and everything will be ok after 6 months. There is clear deficiency in service on the part of the hospital authorities as well as the doctor who performed the 2nd surgery. However the complainant went to the Taluk Head Quarters hospital Sasthamcottah and taken more than 10 X-ray from 2011 to 2013 and after verifying the X-ray the 2nd opposite party was convinced and thereafter only he has conducted the surgery. If the 2nd opposite party doctor had advised the complainant that there is any remote chance of complications he would not have undergone a 2nd surgery. The complainant has spent more than Rs.1,00,000/- at the 1st opposite party hospital apart from the physical as well as mental agony sustained by him. As there is deficiency in service on the part of the 1st and 2nd opposite party the complainant is
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entitled to get back the above 1 lack rupees along with costs, compensation and interest. Hence the complaint.
The opposite party No.1&2 resisted the complaint with tooth and nail by filing separate version raising more or less same contentions which in short are as follows.
The complaint is not maintainable either in law or on facts. There is no deficiency in service or negligence on the side of the opposite parties. However the opposite party No.1&2 would admit the following facts. The complainant was admitted in the 1st opposite parties hospital on 15.08.11 due to a road traffic accident and has sustained fracture of radius and ulna upper 1/3rd of right forum and the patient was treated by the 2nd opposite party doctor that the complainant/patient was discharged on 23.08.11 by giving advise regarding the procedure to be followed and he was periodically assessed also. The patient was treated with open reduction and internal fixation of fracture radius and ulna with dynamic compression plate under general anaesthesia. The procedure was uneventful and he was discharged with well healed wound on 23.08.11 and sutures were removed on 26.08.11. On 15.12.11 the complainant was advised normal activities on the basis of X-ray evaluation showing proper union of fractures. The complainant enquired about the possibility of implant removal on his review on 15.08.12 and he was advised further period of 6 months and follow up evaluation. He was well informed the chance of temporary loss of strength of bone under dynamic compression and the risk of re-fracture during implant removal. He was also explained the need for re-fixation of implant and immobilisation for further six more weeks. The complainant was fully aware of the requirement of implant re-fixation and immobilisation in case of re-fracture happening during implant removal because of weakness due to vascular compromise. He preferred to go with the procedure of implant removal and advised review after six months for implant
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removal. On 27.04.13 the complainant reported with complaints of pain right forearm following a history of fall some days back. He was advised X-ray examination which showed consolidated fracture of radius and ulna and advised removal of implants. The complainant got admitted at the 1st opposite party hospital for implant removal on 01.05.13 and surgery was posted to 03.05.13. The complainant underwent necessary pre-operative investigations and anaesthetic check up and gave written informed consent accepting the possibility of re-fixation and immobilisation.
Under all aseptic care and precautions the 2nd opposite party started the procedure under axillary block and uneventfully removed DCP on the radius. While proceeding to remove the DCP on ulna, one screw head unexpectedly went round making it difficult to use hexagonal screw driver since it was not gripping it. So the screw had to be removed with screw retriever and while removing the screw, fracture line in then ulna at the same site extending to the
screw hole was noticed and it was decided to fix the same. Intra operatively the 2nd opposite party had reduced and fixed ulna with another 3.5 DCP and screws and completed the surgery. Post operatively the fracture of ulna noticed during implant removal and its fixation with DCP and it causes were well explained to the complainant and his bystanders. It was explained that the occurrence of fracture at the same site could be due to instability caused by the trauma of fall few days before the procedure as well as induced by loss of strength of bone under dynamic compression plate. The 2nd opposite party well explained predisposing factors which led to recurrence of fracture at the same site. This type of re-fracture at the earlier fracture site during implant removal is a reported complication associated with the procedure and the 2nd opposite party had managed the problem intra-operatively. It was not caused due to any act or omission on the part of the 2nd opposite party and there was no element of negligence or carelessness on his part in this regard. On 06.05.14 the patient
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and his bystanders insisted for discharge against medical advice for continuation for further assessment and follow up treatment and hence accordingly he was discharged from the 1st opposite party. It is learned from the averments that his re-fracture united well and he did not develop any complication. The discharge from the 1st opposite party hospital and continuation of treatment at THQ Sasthamcottah was according to the decision of the complainant and against advice of the 2nd opposite party for continuation of treatment at the 1st opposite party hospital. According to the opposite parties the 2nd opposite party is not liable to pay any amount to the complainant.
The opposite parties further denied the 2nd opposite party having given any assurance that no harm would be caused by implant removal. It is further contented that the Implant removal cannot be said to be a procedure devoid of complications since the bone under continuous DCP would be temporarily under loss of strength due to decreased vascularity, instability due to trauma of fall etc. and in such circumstance no orthopaedic surgeon can give assurance as stated in the complaint. Further allegation that fracture occurred due to careless attempt of the 2nd opposite party to separate plate and bone is not tenable or sustainable. The statement that the complainant somehow got perception intra operatively and directly knew the things is purposely stated for undue advantage.
It is also contented that the 2nd opposite party well explained about the re-fracture and its fixation with DCP to the complainant and he was given discharge summary on 06.05.13 stating all the facts and with an advice for review for suture removal on 13.05.13. But the complainant did not turn up and continued treatment somewhere else on his own volition against the 2nd opposite party’s advice. The complainant had demanded implant removal and consented after fully aware of the chances of re-fracture and need for further fixation and immobilization. The allegation that he had to undergo treatment at
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Taluk Head Quarters hospital Sasthamcottah due to negligence, carelessness and deficiency in service on the part of the 2nd opposite party is incorrect and highly ill motivated.
According to the opposite parties Medical Science has not reached a stage where the adoption of a particular treatment, medical or surgical would produce definite positive result in all case of illness or disease. The outcome of treatment would greatly depend on a variety of facts such as the severity of the condition treated, co-existence of other disease, immunological status of the individual, limitation of the treatment involved, sensitivity of the individual to the drugs, resistance of the organism to the drugs, patient’s compliance etc. many which are not under the control of the treating doctors of the hospital. Hence merely because a patient is not relieved from pain or had not received the relief, one cannot say that no proper treatment was given that too when the doctor exercised reasonable standard of care and caution in handling a case and acted in accordance with the accepted medical practice and ethics, there is no negligence on the part of the treating doctor. It is also contented that the choice of the treatment of the 2nd opposite party cannot be found faulted with since the mode of procedure and treatment solely depends on various facts noticed by the doctor who treated the patient. The said choice cannot be questioned by the complainant.
There is no cause of action for the complainant to file this complaint. There is no negligence or deficiency of service on the part of the 1st or 2nd opposite party. The present complaint is ill motivated and without any reason and hence the same has been filed only to harass the opposite parties.
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In view of the above pleadings the points that arise for consideration are:-
- Whether there is a negligence and deficiency in service on the side of the opposite parties?
- Whether the complainant is entitled to get compensation, interest and costs as claimed in the complaint?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1, Ext.P1 to P4. Evidence on the side of the opposite party consists of oral evidence of DW1&2 and Ext.D1 series.
The learned counsel for the complainant , 1st and 2nd opposite parties filed separate notes of arguments.
Heard both sides.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. The specific case of the complainant is that there is medical negligence and deficiency in service on the part of the 1st opposite party hospital and 2nd opposite party doctor who treated the complainant at the 1st opposite party hospital. He claimed compensation to the tune of Rs.2 lacks. The following are the admitted facts in this case.
The complainant was admitted in the 1st opposite party hospital on 15.08.11 as he has sustained fracture of radius and ulna upper 1/3rd of right forum in connection with road traffic accident. The complainant was treated by the 2nd opposite party doctor and was discharged on 23.08.11 by the 2nd opposite party by giving advise regarding the procedure to be followed and also advised periodical assessment. There is also no dispute with regard to the fact that the patient was treated with open reduction and internal fixation of fracture radius and ulna with dynamic compression plate under general anaesthesia. The
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complainant was advised normal activities on the basis of X-ray evaluation showing proper union of fracture and hence the 2nd opposite party doctor has advised the complainant to remove the implant. The complainant during the month of May 2013 again got admitted in the 1st opposite party hospital for implant removal.
The specific allegation of the complainant is that the opposite parties had not given any information or hint to the effect that there is some risk involved in the 2nd operation to remove the implant. If any such information was given he would have avoided the 2nd operation as the plating was having no unusual difficulties to the day today affairs of the complainant. According to the complainant the 2nd opposite party doctor done the implant removal by conducting 2nd operation in a careless manner by using over exertion of force and thereby caused fracture more than the fracture caused on the earlier occasion. The complainant would allege that the fracture at the 2nd surgery was caused only as the result of careless and negligent act of the doctor. According to the complainant he was having conscious throughout the 2nd operation after conducting operation the doctor disappeared without any explanation to the relatives of the complainant and on enquiry the hospital authorities explained that it so happened and will recover after 6 months. The opposite parties vehemently opposed the above allegation of the complainant and would content that the complainant approached the hospital with history of fall some days back. However the opposite party has not adduced any reliable evidence that the complainant has fallen down and thereby sustained fracture as claimed by the 2nd opposite party except the oral evidence of DW1 and 2 and Ext.D1 series case sheet. It is true that DW1 has shown in paragraph 3 of the proof affidavit that on 27.04.13 the patient reported with complaints of pain right forearm following a history of fall some days back. The said fact is not fully stated in Ext.D1 series case sheet. But it is pertinent to note that Ext.P2 is the discharge
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certificate issued by the 2nd opposite party doctor after the implant removal wherein there is no mention of any such history fall by the complainant. If any such incident has occurred and stated by the patient it would have definitely find a place in Ext.P2 document. The diagnosis shown in Ext.P2 is (1)Operated radius and Ulna Plating united for removal of implants (2) ITP in Ext.P4 dicharge summary issued by the Medical Officer at the Taluk Head Quarter Sasthamkottah also there is no mention of the history of fal. In history and clinical notes it is stated that patient was posted for implant removal on 03.05.13. While removing DCP from right ulna re-fracture occurred and re plating done admitted for IP care. It is further to be pointed out that though PW1 was subjected to severe cross examination by opposite party 1&2 nothing has been put to him that the effect that he has fallen down and thereby refracture occurred. The oral evidence of PW1 and Ext.P2 and P4 documents would clearly probabilise the case of the complainant and falsifies the case of the opposite parties that the complainant has fallen down and reported that fact to the 2nd opposite party and as a result of pain sustained, DW1 has decided to remove the DCP.
The materials available on record would clearly indicate that the removal of plate fitted on the right hand of the complainant was not absolutely necessary. According to PW1 he has not experienced any difficulties due to the non removal of the plate and that even then the 2nd opposite party doctor has chosen to remove the plate by conducting a 2nd surgery by making the complainant to believe that there is no difficulty in removing the plate and also advised the patient to admit in the 1st opposite party hospital for a 2nd surgery. It is also brought out in evidence that while removing the plate the re fracture was occurred which is cristal clear from the entries noted in Ext.P2 and P4 discharge summaries.
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According to the opposite parties the complainant appeared before the 2nd opposite party on 27.04.13 and alleged a history of fall some time back. The complainant denied the same. It is true that in Page No.12 (that page is re-written as Page No.10 with black ink) it is written as fall. According to the learned counsel for the complainant the above entries in Ext.D1 series are made subsequently with another ink so as to suit the defence version. DW1 would admit that D1 series file has been obtained by him from the hospital. Those entries are seen written a fresh with another ink. All these aspects would probabilise the above contention of the learned counsel for the complainant. There is also no other material to indicate that the complainant went to the 1st opposite party hospital on that day nor alleged the history of fall and consequent pain on any part of his body. It is true that the 2nd opposite party in his proof affidavit has sworn that on 27.04.13 the patient reported with compliance of pain right forearm following a history of fall some days back. Doctor was advised X-ray examination which showed consolidated fracture of radius and ulna and advised removal of implant of the patient got admitted at the 1st opposite party hospital for implant removal on 01.05.13 and surgery was posted to 03.05.13. The patient underwent necessary operative investigation and anaesthetic check up and gave written informed consent accepting the possibility of re fixation and immobilisation. But no such corresponding entries are seen in Ext.D1 series file except in Page No.12(10) wherein it is written as fall just right side of the Page number. There is nothing on record to indicate that X-ray was taken and there was consolidated fracture of radius and ulna and advised removal of implant on that day . The entries stated 27.04.13 is seen written in another handwriting which create doubt in the mind of the forum whether it was subsequently written so as to suit the defence. If X-ray was taken on that day details of examination of X-ray ought to have find a place in Ext.D1 series file. But there is nothing on record regarding taking of X-ray
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and result of examination of X-ray. The X-ray taken on that day is also not produced before the forum. The bill amount charged for taking X-ray is also not shown in the bill. It is pertinent to note that though the opposite party No.2 is having a specific case that the complainant came over at the hospital on 27.04.13 with the alleged history of fall. No such allegation has been put to the complainant when he was in the witness box as PW1. In the circumstance we find no merit in the defence contention regarding the alleged fall some days back stated in the written version. It is also pertinent to note the oral evidence of DW2 the expert examined by the opposite parties that careless removal of implantation may cause fresh fracture or re fracture and implantation has also been done on lifelong but depends up on the patient and opinion of the operating surgeon.
It is pertinent to note the following admissions of DW1 during cross examination that Removal s\ XpSÀ¶v BZy fracture t\¡mÄ \of-¯n fracture kw`-hn¨p F¶p ]d-bp-¶p. Removal s\ XpSÀ¶-Ã, removal sâ ka-b-¯m-Wv. BZyw radius sâ plate FSp¯p. XpSÀ¶v ulna bpsS plate FSp-¡m³ XpS-§n. Screw Ducp-t¼mÄ Hcp refracture Dm-bn. AXv sNdnb fracture Bbn-cp-¶p. At¸mįs¶ thsd Hcp plate h¨v Dd-¸n-¨p-sIm-Sp-¯p.
In view of the above admission of DW1 it is clear that the re fracture was caused while removing the screw and not due to the consequence of any fall as contented by the opposite parties. It is also brought out in evidence that the chance of having re fracture while removing the implantation is not stated in the consent letter nor seen appraised to the patient. According to DW1 no such consent after appraising the chance of re fracture are being obtained from the patient.
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On evaluating the entire materials available on record we have no hesitation to hold that the re fracture occurred due to the careless removal of implantation by the 2nd opposite party doctor at the 1st opposite party hospital without obtaining any informed consent and that the 1st opposite party has charged Rs.22,455/- for the said 2nd surgery which is clear from Ext.P3 bill dated 06.05.13. Hence it is clear that there is professional negligence and deficiency in service on the part of the 2nd opposite party. Therefore the complainant is entitled to get a reasonable compensation from opposite party No.1&2 keeping in view of the expenses incurred and the pain and mental agony suffered by the complainant.
In view of the facts and circumstance of the case we are of the view that the complainant is entitled to get compensation for the professional negligence and deficiency in service of the 2nd opposite party to the tune of Rs.1 Lakh with costs Rs.5000/- from the opposite party No.1&2. The points answered accordingly.
Point No.3
In the result the complaint stands allowed directing the opposite party No.1&2 to pay Rs.100000/- (One Lakh) as compensation to the complainant within 45 days from today failing which the complainant is allowed to recover the same with interest @ 9% p.a from the date of complaint till realisation along with costs Rs.5000/- from opposite party No.1&2 jointly and severally and from their assets.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 26th day of December 2018.
E.M.Muhammed Ibrahim:
S.Sandhya Rani:
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INDEX
Witnesses Examined for the Complainant:-
PW1 : Nidhin
Documents marked for the complainant
Ext.P1 : Discharge summary
Ext.P2 : Treatment certificate
Ext.P3 : Discharge Bill
Ext.P4 : Discharge card
Witness examined for the opposite party:-
DW1 : Dr.Manu Rajendran
DW2 : Dr.Jose Francis.C
Documents marked for the opposite party
Ext.D1 series : Case sheet produced by the 2nd opposite party
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
