BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.296/2008 AGAINST C.C.No.549/2006, DISTRICT FORUM-I, HYDERABAD,
Between:
1. Nizams Institute of Medical Sciences (NIMS)
Panjagutta, Hyderabad, rep. by its
Executive Registrar, NIMS., Hyderabad.
2. Prof. L.Narendranath HOD (Ortho)
NIMS., Panjagutta, Hyderabad. ..Appellants/
Opp.parties 1 & 3.
And
1. Sri N.Venkata Ratnam
S/o.late Sri N.Kanaka Rao,
Aged about 45 years, Occ:Govt. Service,
Address: O/o.Jr.C.D.A, Birch Gunj,
Port Blair, Andaman Nicobar Islands,
India. Respondent/
Complainant
2. Dr.Prasada Rao, Director (NIMS),
Panjagutta, Hyderabad.
3. Dr.Prashanth (Ortho) NIMS
Panjagutta, Hyderabad.
4. Dr.C.Vijaya Krishna (Ortho), NIMS
Panjagutta, Hyderabad. Resondents.
(Respondents 2 to 4 are not necessary
parties in this appeal).
Counsel for the Appellants: M/s.S.S.Bhatt-1
M/s.V.Gourisankara Rao-2
Counsel for the Respondents:Mr.Y.Krishna Mohan Rao-R1
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
MONDAY, THE TWENTY FIFTH DAY OF OCTOBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
1. Aggrieved by the order in C.C.No.549/2006 on the file of District Forum-I, Hyderabad opposite Parties 1 and 3 preferred this appeal.
2. The Brief facts as set out in the case are that the Complainant met with a road accident on 02-06-2005 and was taken to the nearest Hospital and subsequently shifted to OP-1 Hospital and he submitted that he sustained multiple injuries and had faith in the orthopedic capabilities of OP-1 since it is a Government Hospital and he can get reimbursed.
3. On advice of he had taken 13 X-rays immediately on admission and there X-rays were taken for right hand, right ribs, right hip etc. The case was dealt with by OP-4 under the supervision of OP-3 and they opined that there was a fracture on the right fore-arm and bone grafting was immediately required to be done. The complainant was coherent through out and kept on complaining to Ops 3 and 4 that he was unable to move his right leg and he has unbearable pain in the right hip. But Ops 3 and 4 neglecting his complaint continued with the treatment and conducted a surgery on 17-06-2005, by grafting the bone taken from right hip. The Complainant was discharged on 24-06-2005. He submits that he was unable to walk or move his right leg, but OP-4 informed him that the pain was only because of getting bone grafting from the right hip. OP-4 directed the complainant to come for review after 3 weeks.
4. The complainant submits that he suffered pain and immobility in his right hip and informed OP-4 on 29-06-2006 but he was told to wait for the pain to subside as the pain worsened. On the advice of the local doctor, the complainant got himself admitted into OP-1 Hospital immediately on 8-7-2005. This time the case was handed over to OP-5. OP-1 opened the case sheet on 8-7-2005 clearly intimating that the injury was sustained on 02-06-2005 and the surgery was conducted to the right fore-arm on 17-06-2005 and he requires another surgery for fractured right femur, neck (hip back and bone). The surgery was conduced on 17-07-2005 on the right femur neck which was fixed with three screws fastened to the hip. The complainant was discharged on 23-07-2005 and was directed to consult OP-5. After 30 days, the Complainant visited OP-5 on 30-08-2005 and was told that the neck femur is uniting and would take another month to heal. The complainant visited OP-5 again on 29-09-2005 and was told that the Neck Femur is uniting and was advised another one month of best rest. The complainant visited OP-5 once again on 27-10-2005 and this time, he was informed that the neck femur did not unite and directed for review after one month. When the complainant came to know that the surgery on the neck femur failed and did not unite he approached OP-5 and OP-5 informed the complainant that it would take several months and in some cases, the patient can never walk again during his life time.
5. The complainant visited another Orthopedic Surgeon at Yashoda Hospital, who stated that the neck femur did not unite and observed as follows:
“The Case Of Poly Trauma Fracture Both Bones Right Fore Arm Plating Surgery done at NIMS on 17-06-2005 and CSF + Fibular Graft Done for NEGELECTED INTRA CAPSULAR FRACTURE NECK FEMUR Rt”.
6. The Complainant had undergone two surgeries in OP-1 Hospital and addressed a letter on 22-01-2005 to OP-2 who is the Director of OP-1 Hospital but did not receive any reply. The Complainant joined in Yashoda Hospital where he was operated and he was able to walk on the very next date. He was discharged on 29-11-2005 and then he approached OP-1 Hospital and procured the laboratory report on the X-rays taken at the time of his admission on 02-06-2005 which confirmed that there exists a fracture to his right forearm and right neck femur. Ops 3 and 4 conduced grafting from the already fractured hip and the Ops submit that had the Ops conducted the right surgery, the complainant would not have suffered so much agony and hence approached the District Forum to direct the Ops to pay an amount of Rs.6,55,000/- together with interest and costs.
7. Ops 1 to 4 and 5 filed counter stating that the Complainant came to their Hospital in a very critical condition and case was handed over to OP-3. The Complainant was admitted in the emergency ward under Surgical Gastroenterology Unit for liver injury and was placed in the Surgical Critical Care Unit for operation. He was handed over to the Orthopedic on 09-06-2005 due to multiple injuries and she was in intensive care unit till 17-06-2005. They denied that the case was handed over to OP-3 and that OP-3 ordered for 13 X-rays and submit that complainant was coherent through out but never complained to OPO-3 that he was unable to move his right leg. OP-1,2, 4 and 5 further contended that OP-3 was on Earned Leave during this period )from 01-06-2005 to 19-06-2006) due to the demise of his father and he could not have ordered for the X-rays. The complainant sustained multiple ribs fracture and had haemothorax i.e. (blood in the lungs) and was treated by Cardiothoracic Surgeon which means there was also an injury in the heart. He was seen for Cardiothoracic Surgeon, Surgical Gastroenterologist, Cardiologist, Neurologist, Orthopedic Surgeon and Test Tube was inserted into the Complainant lungs by putting a hole in the lungs in order to remove the blood clot. Another tube was put through the nose to remove the clotted blood from the stomach. The complainant had a liver injury and collection of blood in the abdominal cavity and swelling on the right side of the abdomen and severe pain on the right side due to the liver contusion. As the Complainant came to NIMs Hospital with very low BP (90/60) with multiple life threatening injuries to her, liver lungs, abdomen and ribs he was kept under Critical Care Unit for more than 2 weeks, every 2 hours he was monitored.
8. The FIR dated 04-06-2005 does not mention anything about injury to the right hip. The Ops admit that there exists a fracture on the right forearm but denied that the bone grafting was immediately done. The patient was evaluated by an anesthetist repeatedly in the Critical Care Ward and his blood clots analysis was done regularly in the Critical Care Ward and his blood clots analysis was done regularly and he was permitted for surgery on 17-06-2005. They denied that the Complainant ever complained of pain in the right hip. The Cardiothoracic Surgery, Orthopedic Surgery and also Neurosurgeons did not mention about any hip pain. The Orthopedic Surgeon who was on duty 02-06-2005, examined the pelvis and the other long pains of the patient and observed that it is normal and same is recorded in the case sheet. Ops admit that the patient was discharged on 24-06-2005 and he was walking in the wards with support. The complainant in his letter dated 21-11-2005 stated that he was walking with pain and was encouraged to continue walking by Doctors. The fracture of the neck femur as per the X-ray report dated 31-06-2006 shows Proximal likewise of the distal fragment. This shows that the fracture is fully displaced fracture and it is not possible for any person to move the leg by inch with such a fracture. Even the discharge summary of the Yasoda Hospital dated 24-11-2005 mentioned that the Complainant was walking with difficulty since 6 months. Nowhere, it was mentioned that the Complainant was unable to walk. A history in the same discharge summary clearly shows that the fracture of the neck femur occurred outside following the surgery to the right forearm. They admit that they asked for the complainant to come for review after 3 weeks. OP-4 attended on the patient on 28-06-2006 and nowhere it is stated that the Complainant had any pain or immobility in his right hip.
9. The referral letter form Balaji Ortho Clinic filed in the case record clearly mentioned that the patient sustained injuries with fracture to the right neck femur falling down by climbing the stairs, he was referred by the same surgeon who operated upon the patient at Yasoda Hospital on 27-11-2005. The Hospital record in the Hospital sheet is the patient’s version taken by. It is the Duty Doctor who does not verify. They denied that the surgery ended in a failure and on the neck femur did not unite and it takes a minimum of 3 to 9 months for complete union of the bone. The complainant did not attend NIMS after 27-10-2005. They again informed the complainant that in case of nonunion, joint replacement surgery can be done. Till date, the Complainant never approached NIMs that all the X-rays and reports for them to assess the situation. All the X-rays are with the patients and as per the NIMS records of Department. X-ray No.42009 and 41301 were taken after 8-7-2005 i.e. after the second admission falling down from the stairs when he sustained fracture of the neck femur on the right side. The Complainant did not file x-rays taken on different dates in the court. Ops denied that they informed the complainant that the surgery was a failure and that he should be confined to best rest. They contend that there is no negligence on their behalf and seek dismissal of the complaint with damages of Rs.1,00,000/- and costs of Rs.25,000/-.
10. The District Forum based on the evidence adduced i.e. Exhibit A-1 and A-16 and B-1 and B-2 allowed the complaint in part, directing the Ops 1, 3 and 4, jointly and severally, to pay Rs.1,50,000/- towards compensation within one month, failing which, the amount will carry an interest at 12% p.a., from 17-06-2005 till the date of realization together with costs of Rs.2,000/-.
The case against the Ops 2 and 5 is dismissed.
Aggrieved by the said order ops 1 and 3 preferred this appeal
11. It is the Complainant’s case that he met with a road accident on 02-06-2005 evidence under Exhibit A-1 F.I.R. in which the Complainant stated that an RTC Bus Driver drove the bus in a rash manner and dashed him and due to that he sustained injuries on his right hand, on stomach and on the chest and he was immediately shifted to APPOLLO HOSPITAL, Secunderabad by road passers for treatment. He was subsequently admitted in NIMS and the treatment referred is evidence under Exhibit A-2. The surgeon’s name is referred as Dr.Prasanth and the date of operation is 17-06-2005 and there is a detailed picture of the Cortical Screws implanted on the two fractures which were identified and bone grafting was also done. Exhibit A-3 is the discharge record which states as follows:
Final Diagnosis : Closed # BB(R) Forearm u/3rd e shock e
Blent injury Abdomen B/c Haeniothoracis
Procedure Done : ORIF = DCP+ BONE Grafting
Clinical Summary
Date of Injury : 02/06/2005
Mode of Injury : Alleged H/o RTA (i.e. pt was getting down from a bus when he was struck by one more bus coming from behind)
Injury sustained: Cloed # BB (R) Forearm U/3rd = e shock e
Blunt injury abdomen e B/L Haemothoraces
Procedure Done : ORIF e DCP + Bone Grafting
Post OP Period : Uneventful
Drain removed as 2nd P.P.denyd
Would – healthy
Pt at time of discharge ac-pain vitab stable, Afebrile
No E/o DNVD
Investigations : HB % 11/4g%
RBS = 134 MG/dl
Bl.urea = 43mg/dl
S.Cr. = 0.7mg/dl
Blood Grp = O+ve
HIG = Negative
HBsAg = Negative
Discharge Advice
Continue A/E POP Slab Unit tenther advice do not lift weights e ® upper limb Active Finger Movements Repent immediately, if C/o Senei pain, smelling, fever, discharge, numbren or discoloration of finger.
T.Cetil BD (1-0-1)
T.Pentazen x 5 days ) 1-0-1)
T.Rabifast 10 D x 5 days (1-0-0)
T.Lincovet 10D x 10 days (0-1-0)
Signature of Resident Signature of the Head of Unit
T.R/A on 28-06-2005 to OPD(30) to meet Dr.Prashanth at 8.30.p.m.
12. Exhibit A-4 is History and Exhibit A-5 is the Operation Record dated 13-07-2005 wherein the record states as follows:
Under Findings and Procedure
Epinal on table # table # reduction achieved in extension & internal rotation. Thourgh a 8 cm long skin incisioin, proximal femur exposed C.arm guidance, 3 fixation done 3 3 X 6.5.min cancellous screws through a 10 cm long skin incision over (R) leg. (R) fibula exposed. 9 CM of hemifited harfested. A guide wire passed across the IC # site in the posterior & interior position. Reaming done over the guide wire and fibular graft hit into the femur across # site would closed in layers over negative suction No.DNVD.
13.In Exhibit A-6 dated 23-07-2005, the final diagnosis is intra capsular with neck femur, the procedure done is CSF+Febular grafting. It is the case of the Complainant that this Femur of the neck was also fractured during the same bus accident on 02-06-2005. it is the Ops case that while referring the patient to the Hospital, the duty doctor records the patient’s version but does not verify the details. In Exhibit A-6 discharge summary, it is clearly written that he would be healed and the patient was advised not to walk or bend on the right leg and advised two months limb elevation.
14.The Complainant is relying on Exhibit A-10
“The Case Of Poly Trauma Fracture Both Bones Right Fore Arm Plating Surgery done at NIMS on 17-06-2005 and CSF + Fibular Graft Done for NEGELECTED INTRA CAPSULAR FRACTURE NECK FEMUR Rt”. It is the Complainant’s case that X-rays were taken by them at the right hand and right leg on the day of his admission at NIMS. But the ignored the fracture at right hip.
15. The Brief point that falls for consideration is whether the Appellant-Doctors ignored the fracture on the right neck femur at the time of admission. Exhibit A-1 FIR does not evidence that there was any fracture of the right neck femur. The case sheet, Exhibit B-1 of NIMS Hospital also does not state that there was any fracture of the neck femur at the time of admission. The Hospital Record also shows that the attempt of Cardiothoracic Surgeon, Surgical Gastroenterolgist, Cardiologist, Neurologist, Orthopedic Surgeon had treated the patient for various ailments. The Ops in their counter contend that the Complainant had heemothorax and a tube was inserted into lungs by putting a hole in the lungs to remove the clotted blood another tube was also put to the nose to collect blood from the stomach. The Complainant also had a liver injury and severe pain on the right side due to liver contusion and during this period, his BP and pulse sheet does not evidence that the Complainant was complaining about any pain in his right leg.
16. We also observe from the record that OP-3 had never treated the Complainant and his signature or his advice is not reflected in Exhibit B-1 case sheet. The learned counsel for OP-3 doctor has also filed by way of additional evidence, the leave sanction letter dated 30-06-2005 wherein the Doctor was availing 19 days of Earned Leave on account of death of his father i.e. from 01-06-2005 to 19-06-2005. Therefore, to contend that OP-3 Doctor is negligent of treating the patient is unsustainable. The Doctor was not even present either during the operation or immediately thereafter, during Post Operative Care. For this reason, the appellant OP-3 can not be made liable for any treatment for which he has not rendered at all.
17. It is pertinent to note that the Complainant has not filed the concerned X-rays which he has said that he has taken during his admission. In fact, the Ops had stated so in their counter but the Complainant did not come forth to file the said X-rays before this Commission. It is clear from OP case sheet and the patient’s hospital record that there was no mention of injury to the neck femur on the right side at the time of admission. The Complainant has also not filed the X-rays pertaining to that period. It is the contention of the Ops that as per their Radiology department records, X-rays Nos.41301 is dated 8-7-2005 and 42009 is dated 11-07-2005 which establish that the X-rays were taken after fall from the stairs.
18. The case sheet evidences that the treatment was given by several Departments like Orthopedic, Surgical Gastroenterology, Cardiothoracic surgery and Cardiology, the case sheet was also evidenced that the post operative treatment wherein the Complainant never complained about any pain in the hip. The Hospital treatment record shows that two hourly monitoring of the patient was done which does not evidence any complaint about pain in the hip. It also evidences that the bone grafting was taken from the iliac portion and not from the hip point as mentioned in the complaint. It is also the contention of the Appellants/Ops that the fracture is a fully displayed fracture and it is not possible for any person to move the leg even by an inch and if fractured neck of the femur existed, it is impossible to stand upright and bear the weight on the right hip. The Complainant has not filed any medical literature in support of his case.
Exhibit B-1 also includes a letter from Balaji Ortho Clinic addressed to the Duty Doctor NIMS and is dated 8-7-2005. The letter reads as follows:
Dt.8/7/2005
To
The Duty Doctor /CMO
NIMS
Sir,
I am herewith referring Mr.N.Venkatarathnam, 44/M which is a case of Poly trauma with Chest, Abdominal injury, fracture femur treat at NIMS EARLIER.
He was walking normally till yesterday, but unfortunately had a fall this morning when climbing stairs and sustained a new fracture of the neck of femur right side and is unable to walk since then.
Since the fracture is on leg a few hours, the pt is in pain, I gave lime inj. Tramader for pain relief.
Since he is a CGMS beneficiary and was earlier treated at NIMS, I am herewith referring him to you, kindly admit and do the needful.
Sincerely,
Consultant Joint Replacement
Ortho surgeon
19. This clearly evidences that the fracture existed only for a few hours as on 8-7-2005 and there is absolutely no other documentary evidence filed by the Complainant to the contrary.
With reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires”
In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”
“The approach of the courts is to require that professional
men should possess a certain minimum degree of competence
and that they should exercise reasonable care in the discharge
of their duties. In general, a professional man owns to his client
a duty in tort as well as in contract to exercise reasonable care in
giving advise or performing services”.
Supreme Court then opined as under:
“The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
20. Keeping in view the material on record, the pleadings put forward and the aforementioned citations, we are of the considered view that the fracture of the neck femur did not exist at the time of admission to NIMS and the Appellant/Ops have treated the patient as per standards of normal medical parlance and exercised a reasonable degree of skill and required expertise and the Complainant has failed to establish his case by not filing the concerned X-rays. ExB1 letter and the hospital record filed by the appellant/ops clearly conclude that there is no negligence on behalf of the appellants and have done their duty with due care and caution. Appellant/OP-3 was not even present at the time of the first operation and no negligence whatsoever can be attributed to him.
21. In the result, the appeal is allowed and the order of the District Forum is set aside and consequently, the complaint is dismissed. No costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
25-10-2010
