Tamil Nadu
North Chennai
CC/14/2017
M.Prabhu Raj - Complainant(s)
Versus
The Chief Executive Proprietor,F.O.R.Ortho hospital - Opp.Party(s)
M/s.Akbar Row
26 Sep 2018
ORDER
Complaint presented on: 13.01.2017
Order pronounced on: 26.09.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL : PRESIDENT
THIRU. D.BABU VARADHARAJAN B.Sc.,B.L., : MEMBER - I
WEDNESDAY THE 26th DAY OF SEPTEMBER 2018
C.C.NO.14/2017
Mr.M.Prabhu Raj,
S/o. R.P.Mohan,
Door No.8/25, Haridoss 2nd Street,
Peravallur, Chennai – 600 082.
….. Complainant
..Vs..
1.The Chief Executive/Proprietor,
F.O.R.Ortho Hospital,
Fracture Orthopedics & Joint Replacement,
Orthopedic Speciality Hospital,
No.6 & 7, Palaniappa Nagar, Sri Ranga Garden,
200 Ft.Road, Kolathur, Chennai – 600 099.
(Senthil Nagar Bus Stop).
2.Dr.Elangovan, M.S.(Ortho),
F.O.R.Ortho Hospital,
Fracture Orthopedics & Joint Replacement,
Orthopedic Speciality Hospital,
No.6 & 7, Palaniappa Nagar, Sri Ranga Garden,
200 Ft.Road, Kolathur, Chennai – 600 099.
(Senthil Nagar Bus Stop).
3.Dr.Natarajan, Surgeon,
F.O.R.Ortho Hospital,
Fracture Orthopedics & Joint Replacement,
Orthopedic Speciality Hospital,
No.6 & 7, Palaniappa Nagar, Sri Ranga Garden,
200 Ft.Road, Kolathur, Chennai – 600 099.
(Senthil Nagar Bus Stop).
4.Dr.Prasad, Assistant Surgeon,
F.O.R.Ortho Hospital,
Fracture Orthopedics & Joint Replacement,
Orthopedic Speciality Hospital,
No.6 & 7, Palaniappa Nagar, Sri Ranga Garden,
200 Ft.Road, Kolathur, Chennai – 600 099.
(Senthil Nagar Bus Stop).
5.Dr.Vengal Rao, 2nd Assistant Surgeon,
F.O.R.Ortho Hospital,
Fracture Orthopedics & Joint Replacement,
Orthopedic Speciality Hospital,
No.6 & 7, Palaniappa Nagar, Sri Ranga Garden,
200 Ft.Road, Kolathur, Chennai – 600 099.
(Senthil Nagar Bus Stop).
….Opposite Parties
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Date of complaint : 14.02.2017
Counsel for Complainant : M/s.Akbar Row, Md.Noorulla &
N.Md.Jalal
Counsel for 1 to 3 opposite parties :M/s.Dr.B.Cheran, M.Nagarethinam
Counsel for 4 & 5 opposite parties : Ex – parte (22.03.2017)
O R D E R
BY PRESIDENT TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL
This complaint is filed by the complainant to direct the opposite parties to pay a sum of Rs.2,57,713/- with 18% per annum from 23.6.2013 for the bills and for the deficiency in service, to pay compensation of Rs.5,00,000/- for the hardship and mental agony caused to him, to pay a sum of Rs.2,00,000/- for loss of earning with cost of the complaint u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
The complainant is an auto driver. On 23.06.2013, at 9.00 A.M., after dropping the passengers from Egmore to Madavaram, had fallen down from a wall thereby fracturing his left leg. The passengers took him and admitted in F.O.R.Ortho Hospital at Kolathur at 11.00 A.M. The 1st & 2nd opposite parties had diagnosed him with Grade 3 B Compound BB Fracture (Lt) Leg, Lower 4th and advised him to undergo Surgery. Initial amount of Rs.80,000/- was paid as advance. On the instruction of the 1st & 2nd opposite parties , Surgery was conducted by 3rd, 4th & 5th opposite parties on 23.06.13 and he was under Medical care of opposite parties upto 26.06.13. The total amount charged for Fees, Surgery and for the stay was Rs.1,25,371/-. The complainant paid the balance amount of Rs.45,371/-. And then attended the check-up regularly as advised by opposite parties. During the post-operative period the complainant felt severe pain in the operated area. The opposite parties requested him to re-admit in the hospital and he was admitted on 17.07.2013 at 9.00 A.M and was discharged on 18.07.13 and the total Hospital Bill for the re-visit was Rs.62,279/-. But the pain was not subsided. Medical bills from the Hospital was paid by the complainant to an amount of Rs.65,063/-. The pain in the operated Leg increased day by day. His Left Leg got swollen during the month of July 2015 and pus flown from it. He was admitted in Government Stanley Medical College Hospital as inpatient. Again he underwent surgery on 31.07.2015 and they removed Bone pieces and it was sent to Department of Pathology. Histopathology report was received on 06.08.2015 along with Discharge Summary. He came to know from the doctor’s at Stanley Medical College Hospital that pieces of bones were left inside in the operated part during the surgery on 23.06.13 by opposite parties , hence he was subjected to another surgery for its removal. He was there as inpatient from 17.07.2015 to 18.08.2015. Then the wound got healed and no pain on his left leg and resumed his work after six months. These all happened due to the negligence of opposite parties for non-removal of residual bone pieces and defective surgery done by opposite parties . Legal notice were issued to opposite parties and they have sent false replies. Therefore this complaint is filed to direct the opposite parties to pay a sum of Rs,2,57,713/- with 18% per annum from 23.6.2013 for the bills and for the deficiency in service, to pay compensation of Rs.5,00,000/- for the hardship and Mental agony caused to him, to pay 2,00,000/- for loss of earning, and costs.
2. WRITTEN VERSION OF THE 1st OPPOSITE PARTY IN BRIEF:
The Complainant has no complaint about the facilities or service rendered by 1st opposite party. The 1st opposite party cannot decide the line of treatment, but carries out the instructions of the second opposite party. There is no cause of action. The opposite party has not committed any omission or commission. The alleged damage is not due to this opposite party and hence complaint is to be dismissed.
3. WRITTEN VERSION OF THE 2nd OPPOSITE PARTY IN BRIEF:
This opposite party had exercised good care and professional skill in managing the case. The complaint is barred by Limitation. The Surgery was performed on 23.06.2013 and the complaint should have been filed within 2years but filed on 13.01.2017. The cause of action is not described. Hence the complaint is to be dismissed. As soon the complainant is admitted for surgery, he was explained in detail about the types of treatment, regarding surgery and the payments etc., Informed consent was obtained. His vitals were stable. Necessary investigations were done. The patient is diabetic for four years but not under treatment. First procedure of giving adequate traction, the exposed distal end of Tibia was pushed and splint given. As a second procedure, External fixator was done in the theatre. The surgery was done by 3,4 & 5th opposite parties , under the supervision of 2nd opposite party . Intra operative and post operative periods were smooth. There was no pus on wound dressing. The patient was discharged in a normal condition. Case sheet is filed. The patient was reviewed regularly. The patient came for skin grafting and the patient did not have any complaints. Again the fitness and other formalities were done before skin grafting. After surgery patient was discharged in a healthy condition. All reports are handed over. The external fixator was removed after ensuring the fracture was united. Adequate antibiotics were given. There was no pain, pus during the reviews and the patient was having no complaints. It is an absolute lie that the Stanley hospital doctors have reported as the piece of bones are left inside. The complainant is under the wrong impression. Second time admission is not for the pain , it is a pre-planned surgery for skin grafting. Infection is inevitable in open wounds because of debridement, wound irrigation and wash and antibiotic cover, the infection was dormant. Because of uncontrolled diabetic, the wound got reactivated. Because of the infection, the bone cells become necrotic and dead bones formed were removed by Stanely doctors. Once the dead bone is removed, the infection gets cured. So this opposite party has not left any bones inside after surgery. The petition is to be dismissed.
4. WRITTEN VERSION OF THE 3rd OPPOSITE PARTY IN BRIEF:
This opposite party adopts the written version of the second opposite party. The second opposite party is the chief Ortho surgeon and the 3rd opposite party is an Ortho Surgeon working in the 1st opposite party Hospital. This opposite party is not directly responsible and he had only carried out the instructions of the second opposite party. He is not liable to pay any compensation. There is no cause of action. This opposite party has not committed any omission or commission. The alleged loss and damage is not due to any Negligence, deficiency or action of this opposite party. Therefore this complaint is to be dismissed.
5. POINTS FOR CONSIDERATION:
1. Is thecomplaint filed within limitation?
2. If so, is there any deficiency in service on the part of the opposite parties
3. Whether the complainant is entitled to any other relief? If so to what extent?
06. POINT NO :1 & 2
After the admission of the complainant in the 1st opposite party’s Hospital, the opposite parties have diagnosed the complainant with ‘Grade-3 B Compound BB fracture (Lt) Leg, Lower 4th and suggested for Surgery, consent given and the payment made towards the Hospital by the complainant are all admitted facts. Advance payments and Medicine purchase bills and discharge summary with Bills are submitted by the complainant as Ex.A1 to A6. The first opposite party is the chief executive/Proprietor of F.O.R Ortho Hospital and the 2nd opposite party is Ortho Surgeon and the 3rd opposite party is Surgeon in the 1st opposite party Hospital. 4th & 5th opposite parties are also Assistant surgeons working in the 1st opposite party Hospital. Dr. Mohan Rao Dialectologist, Dr.Balachandran Anesthetist, and opposite parties 2 to 5 have attended the complainant. The opposite parties 2 to 5 have performed the surgery to the complainant.
07. So far as the Limitation point is concerned, on the side of opposite parties it is pointed out the surgery was performed on 23.06.2013 and the complaint should have been filed on or before 22.06.2015 but filed only on 13.01.2017 without any condone delay petition. The contention of the complainant is that he came to know the defect when he underwent the surgery in Government Stanley Hospital on 31.07.2015 and it is a continuous process on the same cause of action, therefore the cause of action is continued till that date, i.e. within two years of the knowledge of the complainant. Therefore the complaint is filed in time & the point:1 is answered accordingly.
08. The complainant states that he was admitted in the 1st opposite party’s Hospital on 23.06.2013 and got himself operated for his reported and diagnosed fracture on 23.06.2013. After Surgery he was in the Hospital under the Medical care of opposite parties till his discharge on 26.6.2013. The complainant assures that he attended the Hospital for check-up as outpatient regularly as per the advice of the opposite parties. Now the allegation of the complainant is that during the post-operative period he felt severe pain regularly in the operated area, and he informed about the same to opposite parties and opposite parties have requested the complainant to re-admit in the Hospital again, accordingly he was admitted on 17.7.2013 and was discharged on 18.7.2013 after treatment. Even after the treatment the pain had not subsided. The complainant attended the opposite parties as outpatient till October 2014 but the opposite parties had failed to diagnose the flaw in the post operative surgery when he attended the hospital from 20.07.13 till October 2014. The pain increased day by day his operated leg got swollen during July 2015, and Pus formed. Then he got admitted in Stanley Hospital and underwent surgery and he came to know from the Doctors of the same Hospital that the pieces of bones were left inside the operated part during surgery done on 23.6.2013 and the surgery in the Stanley Hospital was done for removal of left out bones in the earlier operated area. Therefore there is a gross Negligence on the part of the opposite parties. After the surgery performed in Stanley Hospital for removal of residual pieces of left out bones during the first surgery he felt better and painless. According to him, the Medical reports and Histopathology report also reveals the same.
09. Photographs of the complainant showing the treated left leg is Ex.A12. Legal notices issued by the complainant and acknowledgement and the reply by opposite parties are exhibited as Ex.A9 to A11. Discharge summary and Histo pathology report of Stanley Hospital is Ex.A7 & A8. The copies of the case sheets and the copies of the photographs are Exhibited on the side of the opposite parties as Ex.B1 and Ex.B2 series.
10. The 1st opposite party is the chief executive/proprietor of the F.O.R.Hospital and 2nd opposite party Ortho Doctor would submit that they have exercised due care and professional skill and 3rd opposite party had done the surgery under the guidance of 2nd opposite party and there is no breach of duty or of Negligence on their part.
11. On 23.6.2013 the patient was admitted in the Hospital as per the admission record in Ex.B1. series. In the case sheet dated 23.06.2013, it is recorded as ‘Known case of Diabetes Mellitus, not under Medication” and the medicines have been followed for Diabetes and Insulin is also given as per the pharmacy bills submitted by the complainant. The above said recordings in the case sheet was protested by the complainant pointing out another case sheet dated 17.07.2013 in Ex.B1 series, wherein it is noted as ‘Known Diabetic under treatment for the past four years’. He admits that he is diabetic but not admitting that he was not under medication, for which he has not filed any earlier medical bills. However, there is a conclusion that the complainant is a diabetic patient and the medicines have also been prescribed for him by opposite parties for diabetics. It is evident from the medical bills filed by the complainant. From the pictures in Ex.B2 series, & X-ray, it is noticed that there is a fracture in the Bone and it protrudes out from its original position, coming out externally and the skin is cut, and no skin is found over the fracture. It is established in Ex.B1 series of documents, that the consent of the complainant was obtained after narrating the diagnosis, the proposed treatment, possible outcomes and the risks involved like Skin grafting, Infection, and Amputation etc., These are all not denied by the complainant.
12. From the Bills paid for fees filed by the complainant, it is noticed that Anesthetist and Diabetologist by name Dr.Balachandran and Dr.Mohan Rao have attended the complainant .Fitness was obtained. It is argued on the side of the opposite parties that as a first procedure, on adequate traction, the exposed distal end of Tibia was pushed in and splint was given. As a second procedure ortho fix application- Modular External fixator was done in the operation theatre. A team of opposite parties with the assistance of Anesthetist have performed the Surgery under the guidance of 2nd opposite party admittedly. Drug chart, IV Fluids chart were maintained as per the records produced by the opposite parties . The skin flaps viability was doubtful and the next plan was that of skin grafting with the help of the Plastic Surgeon. The consent was obtained as per the records in Ex.B1 series. Admittedly the intra operative and post- operative went smoothly, since there was no complaints by the complainant. It is also incorporated in the discharge summary in Ex.B1 series as the patient was discharged in a stable condition. Then the complainant was discharged on 26.6.2013 and the complainant was asked to come by next week for review and regular reviews were done and it is evidenced from the bills produced by the complainant in Ex.A5 series. The complainant went for skin grafting on 17.7.2013. As per the opposite parties the complainant was again subjected to all test fitness from Anesthetist and consent of the patient was obtained. The consent form is in Ex.B1series. Even though the records are submitted, the complainant in his complaint had alleged that he had the severe pain in the operated area every day during the post-operative period. Therefore he visited the 1st opposite party Hospital, the opposite parties have requested him to re-admit in the Hospital. It was actually a pre-planned admission for skin grafting by plastic surgeon in the second stage as suggested by the opposite parties earlier in advance. It is quite correct to accept the contention of the opposite parties that the skin grafting has to be done for the closure of the wound after healing .The consent was again obtained from the complainant as per the records in Ex.B1 series. The second time admission ended in Skin grafting proves that the second time admission is not for any other surgery or correction surgery after pain as alleged by the complainant and the allegations of the complainant is not proved as true.
13. The complainant further contends that he was attending the opposite party’s Hospital after the discharge for the second time i.e. from 7.6.2014 to October 2014 as an outpatient, which was denied by the opposite parties 1to 3. According to the complainant, during the above said period the opposite parties were failed to diagnose and failed recoup and identify the alleged flaw in the post-operative treatment from 20.07.13 till October 2014. It is inferred from the Medical bills in Ex.A6 in page no.57, the last date of the bill is 07.06.2014. From then onwards there is no document find place to prove that the complainant had attended the 1st opposite party’s Hospital. Again the contention of the complaint is not proved as correct.
14. Further, allegations of the complainant are as follows:- That his operated leg got swollen during 2015, Pus flown from it and he rushed to Stanley Hospital and admitted on 15.07.15 and underwent surgery after due diagnosis and the complainant came to know from the doctors from the Stanley Hospital that the bone pieces left out (during the earlier surgery) were removed and the pieces were sent to Department of Pathology and Histopathology report was received and the same is filed along with Discharge summary. Therefore he is under the strong impression that the opposite parties have negligently done the surgery, which resulted in the next stage of undergoing surgery at Stanley Hospital and he lost his earnings till that time and underwent sufferings and Mental agony. The exchanges of notices and acknowledgement are Ex.A9 to Ex.A11.
15. Ex.A7 is the Discharge Summary of Stanley Hospital and Ex.A8 is the Histopathology report of the complainant. The Diagnosis, and the treatment reads as follows: “Chronic Osteomyelitis of L Tibia”, “CURETTAGE/OPERATIVE”. The learned council for the 1 to 3 opposite parties have submitted the Medical explanation regarding the terms used in the Discharge summary and in Histopathology report with authenticated Book explanations. A simple meaning of “CHRONIC OSTEOMYELITIS” is called an infection. In terms of Medical Literature, it represents an “Infection &inflammatory process caused by Pathogens, resulting in Bone destruction and Sequestrum” formation. The bone cell which is not getting blood supply becomes dead and get separated, and is called Sequestrum. The citied study reveals that it may present as a recurrent or intermittent disease. Open fracture is always contaminated and therefore they are prone to infection. And it is also enlightened that the bacteria can remain dormant for years, giving rise to acute flares and purulent discharges. The fractured bone externally seen piercing through the skin and the skin over the fracture site missing is called ‘open wound’. Admittedly the complainant is suffering from Diabetes Mellitus and the wound was an open wound at first. The learned counsel for the opposite parties has submitted few Articles from journals and cited some studies regarding the “Ankle Fractures in Patients with Diabetes Mellitus.” These studies on Ankle fracture in patients with Diabetes mellitus reveals, they are fraught with high complication rates for operative and non-operative treatment, most of the patients had wound healing complications, some have below knee amputation. Only few patients are healed without complications. Admittedly the complainant is a Diabetic patient. The last Medical Bill from the 1st opposite party Hospital is dated 07.06.2014, and there is no bills either from the 1st opposite party Hospital or from any other hospital is produced in this case by the complainant. No other document is produced to prove his contention of attending the opposite party’s Hospital till October 2014. The complainant’s admission in the Stanley Hospital was on 15.07.2015, i.e more than a year after the treatment completed in the 1st opposite party’s Hospital. Diabetes has been to be a risk factor for many post operative complications and also the complainant is not under the continuous treatment of the opposite parties, it cannot be presumed that the infection happened due to opposite partie’s negligence. Moreover the discharge summary of the 1st opposite party’s Hospital reveals that the patient was alright at the time of discharge. Therefore this forum is of conclusion that the diagnosis mentioned in the Discharge summary of the Stanley Hospital is not due to the earlier Surgery done by opposite parties.
16. As per the Stanley Hospital report in Discharge Summary, “Curettage” treatment was given to the complainant. In common parlance, it is called “scrapping of tissues”. Further Microscopic description reveals that “Bony spicules and multiple fragments of fibro-collagenous tissue” were found. As explained by the learned counsel for opposite parties, “Bony spicules” means the “formation of a new bone with the development of bone matrix”. From this itself, it is clear that the bone is not the residual bone. It is a new bone. If it is a new Bone, how does it form then? Due to infection, inflammatory exudates are formed, creating pressure inside the bone. Because of this, the blood supply to that area is lost. The bone cells which is not getting the blood supply becomes dead. These dead bones gets separated from the regular bones and it is said to be called as ‘sequestrum’ and the host bone responds by generating “new bone formation” overlying this dead bone. As already stated, due to loss of blood supply to the bones, antibiotics would not have been fruitful, even if the complainant would have taken, but as per evidence on record that this complainant had not taken any treatment for a year, earlier to his admission to Stanly Hospital.
17. In view of the aforesaid situation as discussed earlier, Pus would have formed because infection & inflammation, it normally reaches the weakest portion as “sinus”, as the operated area is the weakest part of the complainant. “Cavity contained granulation tissues” is recorded in the discharge summary of Stanley Hospital in ExA7. This is called the newly formed tissues. Therefore Bony spicules are not the leftover bones and the allegation of the complainant that during surgery, the pieces of bone are left as such cannot be accepted. These explanations were incorporated in brief in the written versions filed by opposite parties 1 to 3. Having seen the same, the complainant has not come forward either to cross-examine the doctor, or filed any expert opinion to controvert the contentions of the opposite parties.
18. There is no reply advanced on the side of the complainant to defend the points submitted on the side of the opposite parties based on cited Medical explanations. In conclusion, even though the 4th & 5th opposite parties have been set ex-parte, they are the team doctors who have done the Surgery under the guidance and instructions of 2nd opposite party and there is no specific allegation against them. Allegations put forth against the other opposite parties have not been proved by the complainant. The Notice given by the complainant is properly replied by the opposite parties. Therefore as per discussions held, the complainant has not proved his case against opposite parties & the opposite parties have not done any negligent act and there is no deficiency found on their part & point No;2 is answered accordingly.
19. POINT NO:3
In view of the discussions held as above, the complaint is filed within the Limitation period but the complainant has not proved the alleged negligence or deficiency on the part of the opposite parties and the complainant is not entitled to any other relief and 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 26th day of September 2018.
MEMBER – I PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 23.06.2013 Advance paid to opposite parties
Ex.A2 dated 26.06.2013 Copy of Discharge Summary with details of bill
Ex.A3 dated 17.07.2013 Copy of Advance paid to opposite parties
Ex.A4 dated 18.07.2013 Copy of Discharge Summary with details of bill
Ex.A5 dated 2013 – 2014 Copy of Medicines purchase bills and other items
Bills
Ex.A6 dated 2013-2014 Copy of Medicines purchase bills and other items
Bills
Ex.A7 dated 18.08.2015 Discharges Summary Report of Govt. Stanley
College Hospital, Dept. of Orthopedic Surgery,
Chennai
Ex.A8 dated 06.08.2015 Histopathology Report of Govt. Stanley College
Hospital
Ex.A9 dated 10.02.2016 Legal Notice issued to opposite parties
Ex.A10 dated Feb.2016 Acknowledgements for Legal Notices
Ex.A11 dated 26.02.2016 Reply to Legal Notice received from opposite
parties
Ex.A12 dated NIL Photographs of the complainant showing the
treated fractured left leg and its external damage
Ex.A13 dated 17.07.2015 Original X-ray taken in Govt.Stanley Hospital
LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :
Ex.B1 dated 23.06.2013 Copy of the case sheet
Ex.B2 dated NIL Copy of x-ray& Fracture leg photo copies
MEMBER – I PRESIDENT
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