KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 214/04
JUDGMENT DATED 07.07.2011
PRESENT:-
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPELLANT
Jessy Jayapal,
Malatathu House,
Kanjirakkadu, Perumbavoor.
(Rep. by Adv. Sri.Paul K. Varghese)
Vs.
RESPONDENTS
1. The Administrator,
San Joe Hospital, Perumbavoor
2. The Medical Superintendent,
San Joe Hospital,
Perumbavoor.
(R1 & R2 Rep. by Adv. Sri.V.M. Kurian, John Vadasserry)
3. The Vincent C.K.,
Orthopeadics Department,
San Joe Hospital,
Perumbavoor.
(R3 Rep. by Adv. M.K. George & P.T. Jins.)
JUDGMENT
M.V. VISWANATHAN : JUDICIAL MEMBER
The appellant is the complainant and respondents 1 to 3 are the opposite parties 1 to 3 respectively in O.P. No. 449/01 on the file of CDRF, Ernakulam. The complaint therein was filed alleging negligence and deficiency in service on the part of the opposite parties 1 to 3in treating the complainant at the first opposite party’s hospital. The complainant alleged that there occurred medical negligence on the part of the 3rd opposite party Dr. Vincent C.K. in conducting the surgery on the complainant at the first opposite party Sanjo Hospital, Perumbavoor and there occurred negligence in fixing the implant for the fracture midshaft right humerus along with same – sided comminuted Supra Condylar fracture with inter condylar extension. It is also alleged that the complainant sustained permanent disability on account of the medical negligence in fixing the implant for the fracture and that as a result of the disability, the complainant suffered mental agony, inconvenience and financial loss. Thereby the complainant claimed compensation at Rs. 3 lakhs from the opposite parties 1 to 3.
2. The opposite parties 1 and 2 entered appearance and that the first opposite party filed written version on his behalf and on behalf of the second opposite party, denying the alleged deficiency in service, they contended that the complaint is not maintainable and there is no cause of action for the complaint against the opposite parties 1 and 2. They admitted the treatment undergone by the complainant in Sanjo Hospital, Perumbavoor and the surgery performed by the 3rd opposite party for the fracture sustained by the complainant. It was contended that there was an implant failure and the same was corrected by performing a second surgery by replacing the broken implant with new implant; that there was no negligence on the part of the 3rd opposite party in performing the surgery on the complainant. Thus they prayed for dismissal of the complaint.
3. The 3rd opposite party entered appearance and filed separate written version denying the alleged negligence and deficiency in service. He contended that the first surgery was done by Dr. M.C. John, Orthopedic surgeon attached to Sanjo Hospital, Perumbavoor and that there occurred implant failure and it was corrected by a second surgery by replacing the failed implants. It was further contended that after the second surgery the complainant is not having any disability. Thus, the 3rd opposite party also prayed for dismissal of the complaint.
4. The complainant filed a rejoinder reiterating her case regarding negligence and deficiency in service on the part of the opposite party. She also denied the contentions adopted by the opposite parties in their written versions. Thus, the complainant prayed for allowing the complaint in O.P of 449/2001.
5. Before the Forum below the complainant was examined as Pw1 and Dr. A. Sankaran was examined as Pw2 Exts. A1 to A6 documents were also marked on the side of the complainant. From the side of the first opposite party, the Public Relations Officer of Sanjo Hospital, Panavoor was examined as Dw1. The 3rd opposite party was examined as Dw2. @The copy of the inpatient record maintained at Sanjo Hospital, Perumbavoor in the name of the complainant Jessy was produced on the side of the opposite parties 1 and 2 and the same was marked as Ext. B1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 5th January 2004 by dismissing the complaint in O.P. No. 449/01 on the ground that the evidence on record would not show any negligence on the side of opposite parties. Aggrieved by the said order the present appeal is filed by the complainant therein.
6. We heard the Counsel for the appellant and respondents 1 to 3. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on the oral evidence of Pw2 and Ext. A1, disability certificate issued by Pw2, Dr. A. Sankaran. He argued for the position that the Forum below failed to appreciate the evidence on record in its correct perspective and that the available evidence is sufficient enough to establish the negligence on the part of the 3rd respondent/ 3rd opposite party, Dr. Vincent C.K., Orthopedic Surgeon attached to Sanjo Hospital, Perumbavoor. On the other hand, the learned counsel for the respondents 1 to 3 supported the impugned order passed by the Forum below and argued for the position that there was no negligence in performing the surgery and in fixing the implant for the fracture sustained by the appellant/complainant. It is further submitted that the second surgery was performed only due to the known complication of implant failure. Thus, the respondents prayed for dismissal of the present appeal.
7. The point that arise for consideration are:
1) Whether the complaint in O.P. No. 449/01 is maintainable under the provisions of the Consumer Protection Act, 1986?.
2) Whether the appellant/complainant has succeeded in establishing her case regarding medical negligence and deficiency in service on the part of the 3rd respondent/3rd opposite party in performing the surgery by fixing the implant for the fracture sustained by her?
3) Whether the Forum below can be justified in dismissing the complaint in O.P. 449/01by finding that there was no negligence on the side of the opposite parties.
8. Point No.1 : There is no dispute that the appellant/complainant was admitted in Sanjo Hospital, Perumbavoor on 6.7.00 with fracture humerus with supra condylar fracture with inter condylar extension and that the surgery by open reduction and internal fixation was done on 7.7.2000 by fixing implant. The complainant was discharged from the hospital on 20.7.00. Thereafter, she was admitted in Sanjo hospital, Perumpoor for physiotherapy. The aforesaid admission was on 9.8.00 and she was discharged on 15.8.2000. The complainant was again admitted in that hospital on 19.11.00 for a second surgery for replacing of the implant by a new implant and she was discharged from the hospital on 5.12.00. The second surgery was performed on 20.11.00. Admittedly the complainant paid the hospital and treatment charges incurred for the first surgery by fixing implant for the fracture. Thus the appellant/complainant availed the services of the opposite parties 1 to 3 for the treatment of her fracture which was sustained in road traffic accident on 6.7.00.
9. The first opposite party is the administrator and the second opposite party is the medical superintendent of Sanjo hospital, Perumbavoor. The 3rd opposite party is Dr. Vincent, Orthopedic surgeon attached to Sanjo Hospital, Perumbavoor. It is the case of the complainant and the opposite parties 1 and 2 that the first surgery for fixation of the implant for the fracture was performed by the 3rd opposite party, Dr. Vincent. It is true that the 3rd opposite party contended that the said surgery was performed by Dr. M.C. John but no acceptable evidence is forthcoming to show that the said surgery was performed by Dr. M.C. John and not by the 3rd opposite party. It is the case of the complainant that the first surgery was performed in a negligent manner and had resulted in the failure of the implant and on account of the said negligence the complainant had undergone a second surgery in Sanjo hospital, Perumbavoor on 20.11.2000. Thereby the complaint in O.P. 449/01 was filed alleging medical negligence and deficiency in service on the part of the opposite parties 1 to 3.
10. The materials available on record would show that the complainant availed services of the opposite parties on consideration and that the complainant is a consumer as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and the opposite parties are to be treated as service providers. If that be so, the complaint in O.P. 449/01 is to be held as maintainable under the provisions of the Consumer Protection act, 1986.
11. The opposite parties have got case that the complaint in O.P. 449/01 as framed is not maintainable because of the fact that the complainant filed motor accident claim petition for compensation. It is admitted by the complainant that a claim petition under the Motor Vehicles Act is pending before the Motor Accidents Claims Tribunal. It is to be noted that the claim petition under Motor Vehicles Act is filed against the offending vehicle or the insurer of the vehicles involved in the Road Traffic Accident. The said claim is based on the negligence of the driver of the vehicles involved in the accident. The aforesaid claim is not for getting compensation for medical negligence or deficiency in service of the opposite parties in treating the complainant for the fracture sustained in the accident. On the other hand, the complaint in O.P. 449/01 is filed against the opposite parties for the alleged medical negligence and deficiency in service in treating the complaint for the fracture sustained in the Road Traffic Accident. It is further to be noted that the claim in the complaint in O.P. 449/01 can not be entertained by the claims Tribunal constituted under Motor Vehicles Act. The said claims Tribunal has no jurisdiction to entertain issue involved in the complaint in O.P. 449/01. Thus in all respects the complaint in O.P. 449/01 is maintainable under the provisions of C.P. Act, 1986. This issue is answered accordingly.
12. Points 2 & 3 : Admittedly the complainant was admitted in Sanjo Hospital, Perumbavoor, on 6/7/00 with fracture to her right hand. It was fracture humerus shaft with supra condyla fracture with inter condyla extension. It is for the said fractures the complainant had undergone surgery by open reduction and internal fixation by fixing implant. It was performed on 7.7.00 in Sanjo Hospital, Perumbavoor. the definite case of the complainant and opposite parties 1 and 2 is that the said surgery was performed by the 3rd opposite party, Dr. Vincent, Orthopediac Surgeon in Sanjo Hospital, Perumbavoor. On the other hand, the 3rd opposite party would contend that the said surgery was performed by Dr. M.C. John. But, there is nothing on record to accept the said case of 3rd opposite party that the first surgery on 7.7.00and the complainant was not done by the 3rd opposite party but it was done by Dr. M. C. John. The complainant as Pw1 categorically deposed that the said surgery was performed by the opposite party Dr. Vincent and there was negligence on the part of the 3rd opposite party in performing the surgery by fixing implant. It is the case of the complainant that the implant was improperly fixed by the 3rd opposite party and the irregular or improper fixation of implant happened due to the negligence of the 3rd opposite party in performing the surgery.
13. Dw1, the Public Relations Officer of Sanjo hospital, Perumbavoor has categorically deposed that the implant fixation surgery was performed by the 3rd opposite party Dr. Vincent. It is to be noted that the Dw1 was examined on behalf of the opposite parties 1 and 2. It is further to be noted that Dw1 was not cross examined by the counsel for the 3rd opposite party. It is also to be noted that the opposite parties 1 and 2 being the responsible officers of the Sanjo hospital, Perumbavoor have categorically admitted in their written version that the surgery on the complainant was performed by the 3rd opposite party, Dr. Vincent, Orthopeadic surgeon. Even though, the 3rd opposite party as Dw2 has deposed that the first surgery was performed by Dr. M.C. John, Nothing is forth coming from the side of the 3rd opposite party to establish his case that the first surgery was performed by Dr. M.C. John. No reasonable explanation is given by the 3rd opposite party for the admission made by the opposite parties 1 and 2 that the said surgery was performed by the 3rd opposite party. It is also to be noted that Dw2 has not stated anything about the oral testimony of Dw1 regarding the surgery performed by the 3rd opposite party Dr.Vincent. It is further to be noted the original of the inpatient record of the complainant maintained at Sanjo hospital, Perumbavoor has not produced in the case. The available facts, circumstances and evidence on record would establish the fact that the first surgery on the complainant was performed by the 3rd opposite party Dr. Vincent, Orthopeadic surgeon , Sanjo Hospital, Perumbavoor. We have no hesitation to hold that the 3rd opposite party Dr. Vincent is answerable for the alleged negligence in performing the surgery on the complainant on 7.7.2000.
14. It is the admitted case of the opposite parties that the surgery for the fracture failed due to the failure of the implant and thereby the second surgery was performed on the complainant on 20.11.00. The definite case of the opposite parties 1 to 3 is that the said failure occurred due to the implant failure the opposite parties have also contended that there was no negligence on the part of the treating doctor in performing the surgery by open reduction and internal fixation for the fracture sustained by the complainant. On the other hand the definite case of the complainant is that the said failure occurred due to the improper fixation of the implant and that it was due to the negligence on the part of the 3rd opposite party, the orthopedic surgeon, who performed the surgery on the complainant.
15. The definite case of the respondents/opposite parties is that the implant failure is a common complication and that for the implant failure, the treating doctor can not be found fault with. In other words, it is the case of the opposite parties that the implant failure was not due to the negligence of the treating doctor or the hospital authorities. It is It is pertinent to note at this juncture that the opposite parties admitted the implant failure and it resulted in making the complaint to concede for a second surgery. It is rather admitted that the complainant had to undergo a second surgery on account of the implant failure. Then, it is for the opposite parties to give a valid and acceptable reason for the implant failure. It is the honoured duty of the opposite parties to establish their contention that implant failure is an accepted and known complication and internal fixation of fractures.
16. The opposite parties have not adduced any acceptable evidence to substantiate their case that implant failure is a common complication in open reduction and internal fixation of fractures. No expert has been examined on the side of the opposite parties to substantiate the aforesaid case that the implant failure is common complication in open reduction and internal fixation of fractures.
17. Dw2, the 3rd opposite party has deposed that the second surgery was necessitated because of the implant failure, it is also deposed by Dw2 that implant failure is a common complication in open reduction and internal fixation of fractures. But Dw2 could not cite any authority to support his case of common application of implant failure. Dw1 the P.R.O. of Sanjo Hospital is not an expert to depose about the alleged complication of implant failure. Infact, there is no evidence on the side of the opposite parties to substanciated their contention or defense that the implant failure is a common complication in open redemption and internal fixation of fractures. If that be so the said defense taken by the opposite parties can not be accepted.
18. On the side of the complainant Pw2 Dr. A. Sankaran was examined. The evidence of Pw2 would show that he is an experienced orthopedic surgeon . He had occasions to examine the complainant for the purpose of assessing the disability. Ext. A1 disability certificate was issued by Pw2. He also deposed about issuance of A1 certificate of disability and that the said certificate was issued for production of the same before Motor Accident Claims Tribunal (MACT). In A1 certificate, it is reported that there occurred irregular internal fixation of lower humerus. The evidence of Pw2 would show that on examination of the complainant he could notice irregular fixation of implant. Pw2 has categorically deposed that implant failure can be happened due to irregular fixation. It is further deposed that on account of failure of the first surgery, the patient had to under go another surgery. It is further deposed by Pw2 that implant failure is not a common complication and that implant failure happens very seldom. It is also deposed that he had never experienced such implant failure. Thus, the evidence of Pw2 is sufficient to negative the case of the opposite parties that the implant failure is common complication in open reduction and internal fixation of fractures. In other words, the testimony of Pw2, the expert doctor examined on the side of the complainant would establish the fact that the implant failure occurred due to irregular fixation of the implant.
19. The 3rd opposite party(Dw2) has got a case that implant failure may occur due to infection due to poor quality of the implant or improper technique etc. But the opposite parties have no such case in their written version. It is to be noted that the 3rd opposite party the treating doctor never raised
such a contention that the implant failure occurred due to infection at the fracture site. There is not even a whisper in the written version regarding infection or poor quality of the metal used for the implants. Ext. B1 In-patient record is also silent about such infection at the fracture side. There is also no case in B1 that the implant failure happened on account of the poor quality of the implant or due to improper technique. It is pertinent to note at this juncture that B1 Treatment Record (In patient Record) is silent about the reason for the implant failure. It is only recorded in B1 as “implant failure”. It can be concluded that the implant failure happened only due to irregular fixation of the implant and the said implant failure occurred only due to the negligence of the doctor who performed the surgery by open reduction and internal fixation of fractures.
20. During cross examination of the complainant (Pw1) and that of Pw2, Dr. A. Sankaran it was suggested that the implant failure occurred due to the negligence of the complainant. It was also suggested that the complainant failed to follow the instructions given to her at the time of her discharge from the hospital and due to the said negligence, there occurred the implant failure. The aforesaid case of the opposite parties can be treated as a contention raised for the sake of contention. It is an important point to be noted that there is no such contention taken by the opposite parties in their written versions,. There is no whisper in the versions filed by the opposite parties that the implant failure occurred due to the negligence of the complainant. So, the aforesaid suggestions put to Pws 1 and 2 can be considered as an after thought for the purpose of avoiding liability of the opposite parties. Thus, the materials available on record would make it abundantly clear that there was negligence on the part of the 3rd opposite party(3rd respondent) Dr. Vincent, the orthopedic surgeon in performing surgery on the complainant on 7.7.2000.
21. The 3rd opposite party as Dw2 had deposed that the implant failure was detected on seeing the X- ray on 9.8.00 itself. It can be seen that the 3rd opposite party was fully aware of the implant failure on 9.8.00. But the 3rd opposite party or the other hospital staff failed to record that important fact regarding the implant failure in B1 treatment record. Dw2 categorically deposed that there occurred omission to record the implant failure in the treatment record on 9.8.00. A perusal of B1 treatment record would show that the implant failure was recorded in B1 Treatment Record only on 11.8.00. These circumstances would give indication that the opposite parties were also negligent in maintaining the treatment record properly.
22. A close scrutiny of the versions filed by the opposite parties would show that they have no consistent case with respect to the treatment given to the complainant. The opposite parties 1 and 2 would contented that the treatment and the surgeries were performed by the 3rd opposite party. At the same time the version filed by 3rd opposite party would show that the first surgery was not done by him, but it was done by the Dr. M.C. John and that the 3rd opposite party had only done the second surgery. There was also inconsistency in the stand taken by the opposite parties 1 and 2 with respect to the issuance of treatment certificate to the complainant. The opposite parties 1 and 2 had taken a stand that it is the duty of the 3rd opposite party treating doctor to issue the treatment certificate and they directed the complainant to approach the treating doctor. But, he treating doctor took a stand that it is for the hospital to issue the treatment certificate and thereby the complainant was directed to approach the hospital authorities to get the Treatment Certificate. It can be seen that the opposite parties made the complainant to run “ Pillar to Post”. They adopted “hide and seek” Policy. In that respect also the opposite parties were deficient in rendering service to the complainant/patient. Thus, in all respects it can very safely be concluded that there was deficiency in service. The Forum below can not be justified in holding that there was no negligence or deficiency in service on the part of the opposite parties. In fact, the Forum below failed to appraise and appreciate the facts, circumstances and evidence on record in the correct perspective. So, this State Commission have no hesitation to set aside the impugned order passed by the Forum below.
23. The forgoing discussions and the findings thereon would make it clear that there was negligence and deficiency in service on the part of the opposite parties 1 to 3. They have to be made liable to pay compensation to the complainant for the negligence and deficiency in service on their part. There can be no doubt about fact that the complainant had to suffer mental agony, pain , inconveniences, discomforts and financial loss on account of the negligence and deficiency in service on the part of the opposite parties. We are of the view that the opposite parties are to be made jointly and severally liable to pay compensation to the appellant/complainant. These points are answered accordingly.
24. The Forum below dismissed the complaint in O.P. 449/01 by of the impugned order dated 5.01.2004. This State Commission have set aside the impugned order passed by the Forum below and found the opposite parties therein negligent and deficient in rendering services to the complainant. It is also come out in evidence that the complainant has also filed a claim petition before the concerned MACT claiming compensation. No document is forthcoming from the side of the complainant with respect to the details of the said claim petition filed under the provisions of the M.V. Act. There is also nothing on record to show the present stage of that claim petition. Whether the said claim petition has been allowed, if so what is the quantum of compensation awarded in that claim petition. These are all relevant aspects. While considering the quantum of compensation in the present case. It is for the CDRF, Ernakulam to determine the reasonable compensation due to the complainant in O.P. 449/01. The Forum below is directed to determine the compensation due to the complainant in O.P. 449/01 by taking all the relevant aspects of the case. This is a case to be remitted back to the Forum below to pass an order on merits by taking in to consideration, the findings made by this Commission in this judgment.
In the result, the above appeal is allowed. The impugned order dated 5.1.04 passed by the CDRF, Ernakulam in O.P. No. 449/01 is set aside and the matter remanded to the Forum below for disposal of the same on merits in the light of the order passed in this appeal. The parties are directed to suffer their respective costs and they have to appear before the Forum below on 24.8.2011.
M.V. VISWANATHAN ; JUDICIAL MEMBER
ST
