By. Sri. K. Gheevarghese, President :-
The complaint filed under section 12 of the Consumer Protection Act 1986.
The sum up of the complaint is as follows:- The Complainant was in the ailment of lacking hearing and was treated by the 2nd Opposite Party from the hospital of 1st Opposite Party. On lab test the partial deafness known to be 40 DB in the right ear and 26.6 DB in the left ear. The 2nd Opposite Party conducted operation on 28.8.2007 to cure the defect in hearing subsequently instead of curing the ailment the partial deafness mounted to the higher degree. The complaint was later went for further expert opinion and treated from Baby Memorial Hospital Calicut. It was known to the Complainant later that the partial deafness of the Complainant turned to be worse on the treatment of the 2nd Opposite Party. Apart from that the operation of the 2nd Opposite Party lead to sum other physical complications. The right eye lid cannot be closed and there was a considerable defect in speech. The eye sight of the Complainant is considerably reduced. In short the Complainant was in such a position not to take in food as easily it was done earlier to the operation. The physiotherapy treatments could not do anything helpful for the recovery of the ailment followed by the complication of treatment. The Complainant had to spent Rs.9,267/- towards operation from the hospital of the Opposite Party. In addition to that for treatments and other expenses the complainant spent Rs.40,000/-. The physical complication of the Complainant was only because of the negligence in medical treatment of the 2nd Opposite Party from the 1st Opposite Party's hospital. There may be an order directing the Opposite Parties to refund the Complainant Rs.9,267/- the operation charge received by the 1st Opposite Party. The Complainant is also to be paid Rs.40,000/- the expenses for medicines and others which are spent on the complications resulted by the treatments. The Complainant is also to be compensated with Rs.5,00,000/- towards shortage in communicative capacity along with cost.
2. The Opposite Party filed version. The gist of the version filed by the 1st Opposite Party is as follows:- The Complainant approached the 2nd Opposite Party for the treatments of chronic supportive officious media (ESOM) that is long standing middle ear mucosal supportive disease and hard of hearing. The Complainant was consulted and treated by the 2nd Opposite Party with antibiotic applications and other treatments which could not cure the ailment. The 2nd Opposite Party advised the Complainant that to have a perfect recovery a surgical treatment is necessary. The Complainant approached the 2nd Opposite Party for surgical treatment and mastoid Tympanoplasty was done. The complications of the surgery was also informed to the Complainant in advance of the operation such as the surgery may perhaps lessen the hearing capacity, temporary weakening of facial nerve which may perhaps effects the facial expression and mussel movement and the condition required for which also instructed to the Complainant. The Complainant was ready to undergo surgery treatment to close the hole in the tympanic membrane. The surgery was effective and the mastoid tantrum is cleared. The 2nd Opposite Party has performed the surgical works, mastoid bandage applied, the Complainant recovered from anesthesia and no abnormality was noted on the next day the 2nd Opposite Party noticed the deviation of mouth angle to the left side. The right eye appeared to be difficult to close. In short it is symptom of temporary facial nerve palsy, medicines were given to the Complainant for the recovery of the facial nerve palsy. The symptoms of facial palsy was only due to facial canal oedema or blood and fluid fall in facial canal. The Complainant was discharged from the hospital after applying the mastoide bandage and the advises were given to the Complainant. The facial palsy was noticed on the next day. The Complainant was given medicines to bring up facial nerve function. The facial palsy shown by the patient was only due to temporary facial canal oedema. Blood and fluid when got in facial canal the weakening of the facial nerve is observed. The patient was later discharged removing the mastoid bandage and advised for the manage- ment of physical medicines to bring up the nerve function in Medical College Hospital Calicut. The Complainant was also undergoing electric stimulation and physiotherapy in Fathima Matha Mission Hospital, Kalpetta to rectify facial expression. The tympanic membrane is developed. The discharge of puss from the middle ear stopped. The disease in the middle ear is completely cured. There is no latches on the part of the 1st and 2nd Opposite Parties in the treatment of the complainant. The complaint is to be dismissed with cost. 3. The 2nd Opposite Party filed version in brief it is as follows. The Complainant consulted the 2nd Opposite Party for treatment of long standing middle ear newcastle supparative disease and defective hearing for the past 10 years. The tympanic membrane of the patient was perforated and discharged of puss continued because of infection in the middle ear. The closure of the perforation was the effective treatments for stopping the infection and tympanoplasty was done. The Complainant was not given cent percent assurance that the surgery was free from any complication. The healing of the Complainant was not assured of cent percent recovery. The complication of mastoid tympanoplasty was informed in advance before surgery to the patient and her husband. The chance of weakening of the 7th cranial nerve due to blood and fluid may also cause facial deviation. Strict directions were also given to the Complainant to keep up certain conditions for six months in the post operative period. The allegation of the Complainant that she cannot walk without the help of others, the closing of eye is difficult, talking is difficult are nothing but false. Slight deviation of the mouth angle due to the temporary facial palsy was noticed on the next day. This the known complication of mastoid tympanoplasty. The Complainant was advised medicines for relief. Electrical stimulation and physiotherapy was applied to her to improve the condition. The perforation of the tympanic membrane also healed. The infection of the middle ear stopped and no discharge was seen from the ear of the Complainant. The 2nd Opposite Party is a well experienced ENT Specialist, utmost care and caution was taken in the treatment of the Complainant. The shortage in hearing gradually recoverable. The claim of the Complainant for compensation is on wrong assessment. There is no negligence or deficiency in service on the part of the Opposite Party. The complaint is to be dismissed with cost. 4. The points in consideration are:- Whether any deficiency in service on the part of the Opposite Parties in the treatment of Complainant? Relief and cost.
5. Point No.1:- The evidence in this case consists of Exts.A1 to A6, B1 and oral testimony of Complainant and witnesses. The Complainant and Opposite Parties filed proof affidavits.
6. The case of the Complainant is that the surgery was done by the 2nd Opposite Party for the ailment of discharge from ear and reduced hearing. The surgery of the Complainant lead to complications such as facial palsy that is angle of mouth get deviated. Apart from that the capacity to close the eyelid is reduced. The Complainant was hospitalised to regain the hearing capacity and to remove the discharge from ear. The records produced by the Complainant shows that the Complainant was hospitalised and get treated from there including the surgery. Ext.A4 is the discharge card. The treatment given to the Complainant is termed as mastoid tympanoplasty. The question in consideration is that whether due care and caution is shown in the treatment to the Complainant which is expected from a person who engaged in field of medical science had shown in this case. OPW2 Dr. Prof. Muraleedharan Nambiar Professor ENT Department, Medical College Hospital, Calicut and is examined in this case for the purpose elucidating the evidence. PW3 is an Audiologist who treated the Complainant. On examination the Audiologist it is disposed that the Complainant is in the reduced hearing after treatments. The technology adopted by the audiologist cannot be considered as a confirmatory one according to the PW2. The reason for the reduction in the hearing cannot be ascertained by the audio test alone. According to the audiologist the confirmatory opinion on the complication of the surgery can be ascertained by the ENT surgery. Dr. Mohanraj is examined as OPW1 who advised the Complainant for tympanoplasty. The surgery done on the Complainant was to remove the discharge from the middle ear. The eardrum of the Complainant was perforated. According to this witness tympanoplasty is unavoidable and the perforation of the eardrum is closed. According to the witness in OPW2, the Professor ENT Department, Medical College Hospital, Calicut in mastoid tympanoplasty the mastoid burn is drilled opened to remove the disease in the burn. When a patient is having recurrent discharge and that are not subsiding in medication mastoid typanoplasty is done. This surgery cannot guarantee cent percent hearing improvement. The witness further adds that the complication of mastoid tympanoplasty subsists such as immobility of eardrum deviation of face that is facial palsy, total deafness and meningitis. The facial palsy can also be caused of same other reasons. If 7th cranial nerve is injured, blood or fluid if fall in to the 7th cranial nerve it would lead to facial palsy. According to this expert even in the condition of a successful surgery complication of surgery is possible. The witness further states that if a patient is to be recovered from more complicated physical condition such as infection of the brain, the reduction of the hearing capacity will not be given due importance. The Complainant had undergone physiotherapy and electrical stimulation. Whether any injury to the 7th cranial nerve is caused due to the negligence in the surgery can be stated by an expertised in physical medicines. According to the available knowledge from the face of the records, the complication observed in the patient is the known complication of the surgery. As long as the doctor acts in a manner which is acceptable to the medical profession and he treats the patient with due care and skill, the doctor will not be guilty of negligence. From the face of the documents and testimony of the witness expert the treatment of the 2nd Opposite Party does not fall short of the standard of a reasonably skilled medical man. We are in the opinion that the complications sustained by the Complainant are such that are possible in mastoid tympanoplasty. The treatment of the 2nd Opposite Party from the hospital of the 1st Opposite Party does not consists of any negligence beyond the known complications persists in such cases. There is no deficiency on the side of the Opposite Parties.
7. Point No.2:- The detail discussion of point No.2 is not required in the absence of any negligence on the side of the Opposite Parties.
In the result, the complaint is dismissed no order as to cost.
Pronounced in open Forum on this the day of 29th January 2010. PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
A P P E N D I X Witnesses for the Complainant: PW1. Seemanthini. A. N. Complainant. PW2. Girija Manoj. Speech Language Pathologist and Audiologist.
PW3. Rasidha Harish. Audiologist, Baby Memorial Hospital. Witnesses for the Opposite Parties: OPW1. Dr. Mohan Raj. Doctor. OPW2. Dr. Prof. Muraleedharan Namboothiri. Professor, ENT, Department, M.C.H, Calicut.
Exhibits for the Complainant: A1 series (13 numbers) Bills. A2 series (5 numbers) Bills. A3 series Prescription and Bill. A4. Discharge Card. A5. Audiogram. dt:21.10.2006. A6. Audiological Evaluation dt:30.04.2008.
Exhibits for the Opposite Parties: B1. Case Sheet. | 
