Tamil Nadu
North Chennai
266/2012
V.Vasudevan, - Complainant(s)
Versus
Sundaram Medical Foundation,Dr.Rangarajan Memorial Hospital, - Opp.Party(s)
M/s.Jai & asssociates
06 Jan 2017
ORDER
Complaint presented on:12.12.2012
Order pronounced on : 06.01.2017
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., PRESIDENT
TMT.T.KALAIYARASI, B.A.B.L., MEMBER II
FRIDAY THE 06th DAY OF JANUARY 2017
C.C.NO.266/2012
Mr.V.Vasudevan,
S/o.Vangiliappan,
No.30, Jayammal Street,
Ayyavoo Naidu Colony,
Aminjikarai, Chennai.
..... Complainant
..Vs..
1.Sundaram Medical Foundation, Dr.Rangarajan Memorial Hospital, Shanthi Colony, IV Avenue, Anna Nagar West, Chennai – 600 040.
2.Dr.Sudhakar Williams, Sundaram Medical Foundation, Dr.Rangarajan Memorial Hospital, Shanthi Colony, IV Avenue, Anna Nagar West, Chennai – 600 040.
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...Opposite Parties
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Date of complaint 19.12.2012
Counsel for Complainant : M/s. Jai and Associates, R.Krishnan
Counsel for opposite parties : M/s.T.K.Bhaskar, Srinath Sridevan, &
K.Harishankar
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
The 1st Opposite Party is one of the well established hospitals in the Chennai City. The 2nd Opposite Party is a doctor by profession for the past several years in the 1st Opposite Party hospital, further the 2nd Opposite Party is a very experienced doctor in his profession. The Complainant is a diabetic patient and he is continuously taking insulin for the past 20 years and the Complainant further states that, on 21.04.2009 he met with an accident. On account of accident he was rushed to the 1st Opposite Party emergency ward for taking treatment in bleeding condition. The Complainant was thoroughly checked and admitted as an inpatient as per doctor advises. The Complainant sustained serious injuries and fracture in both the hands. The first Opposite Party diagnosed and found that he was suffered “fracture distal radius both wrist with right olecernon fracture”. Due to fracture, the 1st Opposite Party obtained opinion/advise from Dr.V.B.Naryana Murthy (Plastic Surgeon); Dr.Murali Ariga (Opthomatologist) and Dr.Vinod Narayana (MOFS) for surgery of the Complainant for closed reduction ligamentatousis with “k” wire wit TBW olecernon right side. The 2nd Opposite Party who had done surgery and at the time, he had negligently left the driller bit/tools (unwanted) in the right elbow of the Complainant and carelessly closed the surgery. Even though he is an experienced and familiar doctor and also well knew about the consequence, he left the driller bit in the Complainant right elbow. The Complainant was systematically checked by the doctors of the 1st Opposite Party each and every day. On 25.04.2009, after verifying all the records and test, the doctors of the 1st Opposite Party and 2nd Opposite Party gave a report that, the Complainant is recovered well and he is normal. Further the Opposite Parties informed and advised the Complainant that since he is normal, he will be discharged on 28.04.2009. Finally at the time of discharge, x-ray was taken by the 1st Opposite Party, it clearly shows that unwanted drill bit tool was left in the right hand elbow and the same was not disclosed to the Complainant by the Opposite Parties and the Complainant was discharged on 28.04.2009. From the date of discharge the Complainant felt that his right hand elbow is uncomfortable to do his daily/routine work as he is unable to know the actual problem/reasons. Due to the unexplainable pain, he could not concentrate his logistics business, hence he returned to his home earlier for taking rest and the same was done nearly for 2 ½ years. The Opposite Parties advised him that wire was implanted in the hand; it will cause little pain till removal of the same. Due to gross negligent surgery done by the 2nd Opposite Party he is suffering serious and continuous heavy pain. Further he was unable to lift normal weight, nothing could be hold/take and unable to sleep normally due to unexplainable pain. The Complainant approached and consulted with private doctor, then they advised the Complainant to take x-ray for right elbow with forearm AP & LAT view. As per advice the Complainant took the x-ray and the report of the Gemini Lab and advanced MRI & CT scan report is extracted hereunder.
Internal wiring is visualized in olecranon process of ulna.
Two J wire visualized.
Visualized parts of humerous and radius appear normal.
SHORT WIRE IS VISUALIZED IN SUBCUTANEOUS
TISSUE OF MEDICAL ASPECT OF PROXIMAL FOREARM.
The Complainant after going through the x-report and then only he came to know about the negligent operation done by the Opposite Parties. The said Billroth Hospital doctor verified the entire records and the x-ray of the 1st Opposite Party and also the latest x-ray and CT scan taken at Gemini along with their report. The doctor of the said hospital informed about the negligent surgery done by the Opposite Parties and drill bit shall be taken out as soon as possible, otherwise it would cause serious problem/danger to his life and health. On 17.11.2012 again he underwent surgery by the said Billroth Hospital. The subject drill bit and also “K” wire was taken out in the right elbow of the Complainant. The said drill bit, which was negligently left by the 2nd Opposite Party and the same was wantonly failed to inform to the Complainant even though it was visualized in the x-ray taken by the 1st Opposite Party on 28.04.2012 on the date of discharge from the 1st Opposite Party which clearly shows the deficiency in service of the 1st Opposite Party. It is the duty of the doctor to count the number of instruments/tools and all others that are used for operation before closing surgery. The 2nd Opposite Party well experienced doctor had failed to do his duty and left the drill bit in the right elbow of the Complainant at the time of surgery, it will clearly show the negligent/carelessness of the 2nd Opposite Party. Further though it was visualized in x-ray, which was taken by the 1st Opposite Party at the time of discharge and the same was not disclosed to the Complainant would establish the motive of the 1st Opposite Party would clearly shows that to conduct a second surgery and thereby the Opposite Parties have committed deficiency in service to the Complainant and hence he has filed this Complaint for compensation with costs.
2.WRITTEN VERSION OF THE OPPOSITE PARTIES IN BRIEF:
The Opposite Parties denies each and every allegation set out in the Complaint, and those that are expressly admitted herein. The 2nd Opposite Party is a consulting doctor in the 1st Opposite Party which is a hospital situated in Anna Nagar, Chennai. The Opposite Party stated that proper medical attention and care was rendered to the patient and he was treated according to the acceptable medical standards. The Complainant was admitted at the 1st Opposite Party hospital on 22.04.2009 at about 12.00 p.m, he was given I.P.No. 3535/2009, Hospital Number: 418714, with multiple injuries sustained in a road traffic accident. The Complainant was initially assessed by the orthopedic surgeon, maxilla facial – maxillary surgeon, ophthalmologist, plastic surgeon and physician and once stable, was shifted for CT scan – skull and brain, which showed multiple fractures of the maxillary sinus and nasal bone, which were treated conservatively. The Opposite Parties further states that the orthopedic assessment showed fractures of both the wrist, the left side being a compound injury: the Complainant also has a close fracture of the right olecranon. The Complainant, was found to be a diabetic patient with type- I diabetics and was accordingly put on insulin. The Complainant is aged about 30 years and is put to strict proof of the averments that he has been a diabetic patient and was continuously taking insulin for the past 20 years. The Complainant was operated on 23.04.2009, for both wrists by ligament taxis and k-wire fixation with wound debridement of the left wrist. A tension band wiring of the left olecranon was done. The Opposite Party left the driller bit in the right elbow of the Complainant is totally false and without any substance and the Complainant is put to strict proof thereof. The 1st Opposite Party has strict discharge policies and the Complainant was discharged only after ensuring that the Complainant recovered well, the wound was clean and healthy and the Complainant was also prescribed certain medications. The Opposite Parties states that any alleged pain experienced by the Complainant after the surgery was due to the accident and not due to negligence of the Opposite Party. The 2nd Opposite Party states that there has been no negligence whatsoever in treating the Complainant. The 2nd Opposite Party further states that proper medical attention and care was rendered to the patient and he was treated according to acceptable medical standards. The Opposite Party also state that in case of any pain or discomfort any prudent person would have initially approached either the doctor who had performed the surgery or the hospital in which the surgery was conducted, but in the instant case the very act of the Complainant, of consulting a different doctor without consulting the Opposite Party for the alleged pain suffered by the Complainant raises doubt and suspicion with regard to the credibility of the Complainant and reliability of the facts stated in the Complaint. The allegation of leaving behind a drill bit is totally false. It is not uncommon for a broken drill bit to remain, during orthopedic procedures. The 2nd Opposite Party submits that the allegation of them wantonly failing to inform the Complainant even though the drill bits were visible in the x-ray taken at the time of discharge is not true and without basis. Absolutely no deficiency of service on part of the Opposite Party, as there is a tool left behind in the Complainant’s elbow as alleged. The pain allegedly suffered by the Complainant is not due to the drill bits and hence the expenses incurred cannot be attributed to the Opposite Party and the Opposite Party submits that all such allegations are entirely false and fanciful. The Opposite Party states that the compensation claimed is totally unsustainable, fanciful and an abuse of process of law.
3. POINTS FOR CONSIDERATION:
1. Whether there is deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled to any relief? If so to what extent?
4. POINT:1
The admitted fact are that the Complainant met with road accident on 21.04.2009 and he sustained injuries and fractures in both the hands and immediately he was admitted in the first Opposite Party hospital on 22.04.2009 and the doctor diagnosed that he sustained fracture on the right elbow and on 23.04.2009, the 2nd Opposite Party doctor conducted surgery by fixing k-wire and he was discharged on 28.04.2009 and Ex.A1 discharge summary was given to him and further on that day Ex.A2 x-ray was also taken in the 1st Opposite Party hospital.
5. The Complainant contended that the 2nd Opposite Party at the time of conducting surgery on the Complainant, he left a drill bit negligently and without removing the same he has completed the surgery and the Ex.A2 x-ray proves that the drill bit negligently left by the 2nd Opposite Party and thereafter the Complainant was suffering with pain and he took Ex.A3 x-ray at Gemini Scan and based on that x-ray, Ex.A4 opinion was given by the radiologist and in the said x-ray also the drill bit was seen and thereafter he was admitted at Billroth Hospital on 17.11.2012 for implant removal on right elbow and broken drill bit was removed in the said hospital and therefore the 2nd Opposite Party leaving the drill bit at the time of surgery in an negligent act and for such negligent act the 1st Opposite Party hospital is also liable and therefore the Opposite Party 1 & 2 have committed deficiency in service.
6. The counsel for the Opposite Parties contended that after 2 ½ years of conducting surgery by the 2nd Opposite Party at the 1st Opposite Party hospital, the drill bit was removed on the Complainant at the Billroth hospital and however in between the 2 ½ years removal of drill bit and the surgery done at the 1st Opposite Party hospital, the Complainant had not been suffered with any pain due to the surgery done by the 2nd Opposite Party and further while conducting surgery, it is common that the drill bits are left in the human body and for the said purpose he relied on Ex.B31 literature in respect of Drill bit failure without implant involvement – an intraoperative complication in Orthopedic surgery and Ex.B33 literature in respect of Frequency of Instrument Breakage During Orthopedic Procedures and Its Effects on Patients and therefore the presence of drill bit in no way affected the health of the Complainant and further while conducting the surgery implant, he had followed the procedures established under the medical jurisprudence and since the Complainant health no way affected and from the literature quoted above, the Opposite Parties have not committed any deficiency in service and prays to dismiss the Complaint.
7. Admittedly the Complainant met with an accident on 21.04.2009 and he was admitted in the 1st Opposite Party hospital on 22.04.2009 and the 2nd Opposite Party conducted surgery on his right elbow for implantation and fixed k-wire and he was discharged on 28.04.2009 from the hospital. Ex.B1 to Ex.B28 is the patient records maintained for the Complainant at the 1st Opposite Party hospital. Those documents reveal that how the Complainant was taken care during operation as well as post care operation.
8. The Complainant did not allege negligence about the care taken to him while he was inpatient in the 1st Opposite Party hospital. The Complainant’s only grievance is that the 2nd Opposite Party left the drill bit at the time of surgery while fixing k-wire and that was evidenced as per Ex.A2 x-ray taken in the same hospital and therefore the 2nd Opposite Party committed deficiency by way of negligent act. The Complainant was discharged on 28.04.2009. The Ex.A3 x-ray was taken on 15.11.2012 after 2 ½ years only. During the period of 2 ½ years from the date of discharge at the 1st Opposite Party hospital to till he had removal of drill bit by way of surgery on 17.11.2012 at Billroth Hospital, what kind of sufferings he had due to presence of drill bit in his hand or the drill bit had injured any of his organs or part of his body and absolutely no evidence is available on behalf of Complainant to prove the same. The Complainant merely stated in his Complaint that due to unexplainable pain he had consulted doctor and then took x-ray for right elbow and thereafter undergone surgery for removal of drill bit. Further Ex.A5 discharge summary also reveals that he was admitted in that hospital only for implant removal. Even in the said hospital also or to the doctor he had not stated the presence of drill bit he had sufferings with pain. Therefore, it is held that the Complainant absolutely had no sufferings due to the presence of drill bit in his hand till it was removed.
9. Now, the point is to be considered in the facts and circumstances of the case, mere presence of drill bit in the Complainant hand left at the time of surgery is negligent on the part of the Opposite Parties. The counsel for Complainant replied that it is deficiency on their part and whereas Opposite Parties replied that in view of literature marked by them is not negligent and deficiency on the part of the doctor.
10. On behalf of Complainant no literature have been cited that the doctor left drill bit at the time of surgery is deficiency. However, on behalf of Opposite Party they marked Ex.B31 and Ex.B33 literatures that at the time of conducting surgery it is not uncommon that the drill bits are left in the human body. In Ex.B31 the Opposite Parties referred the following paragraphs in their literature.
The drill bits used in internal fixation may occasionally break during the operation. In certain circumstances, the metal fragment may be situated in an inaccessible part of the bone. The surgeon is then confronted with the question of how much additional trauma is justified in trying to remove the fragment.
The frequency and the reasons for drill bit failure were investigated. The frequency should throw some light on the criteria for drill bit failure. This investigation aimed to determine whether it is due to the construction of the drill bit itself in terms of material, hardness, design and its use with the drill or whether it is due to wrong management or intra operative difficulties. In addition, the frequency of drill bit failure and the operations during which it is most likely to occur were established.
There are two possible causes of drill bit failure – avoidable and unavoidable. It should be possible to avoid the situation in which a drill bit contacts an implant, e.g a screw, or an instrument, e.g. a Hohmann hook. However, some failure were unavoidable, for example, a drill bit contacting the far cortex at an unfavorable angle may cause slippage resulting in rotational bending failure of the drill bit. This phenomenon was observed most frequently in the case of angled blade plates and when using hip screws in the proximal femur. The three fluted drill bit is less likely to slip, however, a drill bit should always be advanced carefully.
The frequency of drill bit failures lies between 3 – 25 per 1000 operations. The highest incidence was 10 failures for 400 internal fixations (2.5 %) in one clinic. This data was based on a rough estimate without specific data and accompanied by the explanation that ‘Drill bit failure is always due to a technical error and occurs predominantly due to bending the drill bit by exerting too much pressure when drilling”.
Drill bit failure is infrequent. Drill bit fragments without implant involvement are well-tolerated. Additional surgical trauma in order to remove the fragment is unjustifiable.
In Ex.B33 Opposite Parties referred the following paragraphs in the literature.
Breakage of instruments during surgical procedures occurs periodically in every surgical discipline. In addition, all radio-graphs of all surgical cases were reviewed by two different surgeons to detect breakages. Following each event, all data (the patient’s name and birth date, the type of operation performed, the surgeon, the time and date of the surgery, the type of broken instrument, a description of the broken part left in situ, and information about removal and complications) were recorded and entered into a computerized database. According to the study protocol, a broken instrument part had to be removed if (1) it was loose, (2) it penetrated both cortices of the bone, (3) it lay near vessels or nerves, or (4) it lay near or in a joint. The follow-up period after the surgery ranged from twelve to thirty – six months. During the follow – up period, all abnormalities were recorded and entered into the computerized database as well.
In the Medical University of Graz, eighteen different surgeons (twelve specialists and six residents) performed the surgical procedures. In Bolzano Central Hospital, fourteen different surgeons (twelve specialists and two residents) performed the surgical procedures. No significant correlation between surgeon experience and the rate of instrument breakage could be detected. We did not observe a high rate of instrument breakage by any specific orthopedic implant(s). In five cases, the remaining piece of the broken instrument was removed. These removed pieces included a part of a probe that had broken during knee arthroscopy and was located in the joint: two threaded Kirschner wires lying near the knee joint, both in patients treated with osteosynthesis of a tibia plateau fracture: and two loose drill bits one of which broke during osteosynthesis of a radial fracture and one of which broke during osteosynthesis of a clavicular fracture.
As dictated by the guidelines established for our study, five of forty – two instrument fragments were removed. During the two-year study period, there was one exception to the guidelines: the tip of a hexagonal screwdriver that broke during insertion of the distal locking bolt of a titanium trochanteric fixation nail was stuck in the screw head and could not be removed. Major effort would have been necessary to remove both the screw and the screwdriver tip, and the decision was made to leave the tip in place. The broken screwdriver tip did not migrate during the follow-up period. None of the patients who had a broken instruments left in situ in this study or in the study by price et al.” had any symptoms during the follow-up period.
From the forgoing literature, it is clear that during surgical procedures breakage of instruments periodically occurs and additional surgical trauma in order to remove the fragment of broken instrument is unjustifiable. Therefore, in the case in hand also the drill bit left in the right hand of the Complainant at the time of surgery was not removed and hence an another surgery is not justified at the same time. Further, the Complainant has not proved that the 2nd Opposite Party doctor who conducted operation negligently left the drill bit and further the said drill bit had not caused any ill health or suffering to the Complainant. Therefore, in view of the forgoing discussions we hold that the Opposite Parties have not committed any intentional negligent act and hence it is held that the Opposite Parties 1 & 2 have not committed any deficiency in service.
11. POINT No :2
Since the Opposite Parties have not committed any deficiency in service, the complainant is not entitled for any relief as prayed in the complaint and the complaint is liable to be dismissed.
In the result the complaint is dismissed. No costs.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 06th day of January 2017.
MEMBER – II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated NIL Discharge summary of the 1st Opposite Party
Ex.A2 dated NIL X-ray dated 28.04.2012 taken by the 1st Opposite
Party
Ex.A3 dated NIL X-ray dated 15.11.2012 Taken by the Gemini CT
Scan and X-ray
Ex.A4 dated NIL Report dated 15.11.2012 given by the Gemini CT
Scan and X-ray
Ex.A5 dated NIL Discharge summary of the Billroth Hospital
Ex.A6 dated NIL Photo copy of the driller bit and “K” wire
Ex.A7 dated 26.11.2012 Legal notice issued by the
Complainant to the Opposite Parties and
acknowledgement cards.
Ex.A8 dated 04.01.2013 Notice sent to client
Ex.A9 dated 17.11.2012 Advance receipt
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :
Ex.B1 dated NIL In patient Record (Face Sheet)
Ex.B2 dated 22.04.2009 In patient Admission slip
Ex.B3 dated NIL History & Physical Examination
Ex.B4 dated NIL Consultant’s Report & Recommendations
Dr.Vinod Narayanan(MOFS)
Ex.B5 dated 22.04.2009 Consultant’s Report & Recommendations
Dr.Murali Ariga (Ophthalmologist)
Ex.B6 dated NIL Consultant’s Report & Recommendations
Dr.V.B.Narayan Murthy (Plastic Surgeon)
Ex.B7 dated 28.04.2009 Consultant’s Report & Recommendations Dr.SK
Ex.B8 dated 24.04.2009 Progress Notes
Ex.B9 dated NIL Consent to Diagnostic, operative or Treatment
Procedures
Ex.B10 dated 25.04.2009 Pre-Operative/Pre-Procedure check list
Ex.B11dated 25.04.2009 Operation/procedure Report
Ex.B12 dated NIL Anesthesia Record Sheet
Ex.B13 dated 28.04.2009 Anesthesia Record Sheet
Ex.B14 dated NIL Consent to Diagnostic, operative or Treatment
Procedures
Ex.B15 dated 22.04.2009 Pre-Operative/Pre-Procedure check list
Ex.B16 dated 23.04.2009 Operation/procedure Report
Ex.B17 dated 22.04.2009 Anesthesia Record Sheet
Ex.B18 dated 23.04.2009 Anesthesia Record Sheet
Ex.B19 dated NIL Clinical Record
Ex.B20 dated 22.04.2009 Nurse’s Progress Notes
Ex.B21 dated 22.04.2009 Intake-output chart
Ex.B22 dated NIL Diabetic chart
Ex.B23 dated NIL Drugs and Medications Records
Ex.B24 dated NIL Investigations chart
Ex.B25 dated 01.05.2009 In Patent Test Report
Ex.B26 dated 22.04.2009 Physicians’ order sheet
Ex.B27 dated 22.04.2009 In-patient Discharge Summary
Ex.B28 dated 04.01.2013 Reply Notice sent by the Opposite Parties
Ex.B29 dated 28.08.2004 Discharge Summary
Ex.B30 dated 16.11.2006 Discharge Summary
Ex.B31 dated NIL Drill bit failure without implant involvement an
intraoperative complication in orthopaedic surgery
Ex.B32 dated NIL Published Literature on products Liability
Ex.B33 dated NIL Frequency of instrument breakage during
orthopaedic procedures and its effects on patients.
MEMBER – II PRESIDENT
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