Date of Filing 21.12.2021

                                                                                                             Date of Disposal: 30.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

CC.No.03/2022

THIS THURSDAY, THE 30^th DAY OF NOVEMBER 2023

Mr.V.Mathiamuthan, S/o.Venugopal,

No.18, Ramas Enclave,

Ramakrishna Nagar, 4^th Avenue,

Goindharaj Nagar 2^nd Street,

Porur, Chennai 600 116.                                                                       ......Complainant.

                                                                              //Vs//

1.M/s.Sri Ramachandra Medical Centre,

   Rep. by its Managing Director,

   No.1, Ramachandra Nagar,

   Porur, Chennai 600 116.

2.Dr.D.Gokul Raj,

    Orthopaedic Surgeon,

    Sri Ramachandra Medical Centre,

    No.1, Ramachandra Nagar,

    Porur, Chenna – 600 116.                                                             .…..Opposite Parties.

Counsel for the complainant                                : M/s.S.Anil Sandeep, Advocate.

Counsel for the opposite parties                         : Mr.A.R.Poovannan, Advocate.

This complaint coming before us on various dates and finally on 14.11.2023 in the presence of M/s.S.Anil Sandeep, counsel for the complainant and Mr.A.R.Poovannan, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to medical negligence along with a prayer to direct the opposite parties to pay a sum of Rs.1,10,00,000/- with 12% interest per annum and also to pay the cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

2. Complainant on 07.08.2019 at about 2pm was travelling in his car along with his driver in the Puzhal Maduravoyal By-Pass Road. All of sudden a Bolero Jeep came in the wrong side and collided with car, thereby he and his driver sustained severe injuries.  The public had called for the ambulance and he was taken to the 1^st opposite party for first aid.  After the first aid treatment, the complainant was admitted with the 1^st opposite party for further treatments. Medical tests were conducted to assess the wounds and injuries.  Reports revealed that he had sustained Left Proximal Femur fracture, Left acetabulum posterior column fracture and comminuted fractures at 1^st, 3^rd, 4^th, 5^th, 6^th, 7^th and 8^th rips and also lung injury.  The opposite parties advised the complainant to take imported plate unit, as according to them, it would provide better physical movements post surgery.  Though the advised imported plate unit was costlier, the complainant with the hope of getting better physical movements believing their advice consented for the imported unit for plate fixation. On 09.08.2019, the 2^nd opposite party along with team of doctors had conducted a surgery by implanting the Left Proximal Femur plating.  After the surgery the 2^nd opposite party informed the complainant that the surgery was very much successful.  The 2^nd opposite party thereafter informed that the surgery had been performed for the proximal femur fracture alone and one more surgery to be conducted for acetabulum fracture. The complainant was under shock because he was informed earlier about one surgery taking care of both the fractures and as such on 14.08.2019 the second surgery was conducted by the 2^nd opposite party and his team of doctors for the other fracture fixing 3.5 mm synthec screws for the implant.  The complainant was discharged on 19.08.2019 by having made to pay a sum of more than Rs.6,00,000/-to the opposite parties and on advice for routine check-ups. On 24.08.2019 the complainant developed high temperature and unbearable pain in the operated areas.  Within a day the complainant went and got admitted himself with the opposite parties.  Further he had also complained that he was having severe pain in the operated regions.  After the necessary investigations, the opposite parties revealed that implants of the surgeries need to be rectified and realigned and that it was necessary to re-do the surgeries once again by removing the implants and set right the same.  Further the complainant was asked to deposit money for conducting the 3^rd surgery. Complainant decided not to risk his life by undergoing another substandard surgery by the same set of doctors. Complainant was then treated for infection alone and when temperature had come down he had got discharged from the 1^st opposite party on 02.09.2019. Complainant approached New Hope Medical Centre for the second opinion regarding the further course of treatment.  After seeing the reports, they had advised him to go for an open surgery to remove the implants and re-do the procedures.  He was also informed that he had suffered a heart attack, which fact was suppressed by the opposite parties.  He was admitted there on 23.09.2019 for the surgery done on 24.09.2019 by removing the implants and re-fixing hip and femur joint with ceramic ball and socket.   He was also informed by the doctors that cheap quality implants of third grade materials had been used for his surgeries by the opposite parties and that the opposite parties had unnecessarily conducted two surgeries instead of one and that the implant fixation had not been done as per the recommended procedures.  These facts were categorically mentioned in the Discharge Summary dated 27.09.2019 issued by New Hope Medical Centre at Kilpauk Chennai. After the 3^rd surgery he was slowly limping back to normalcy.  He is now visiting the New Hope Medical Centre for periodic check-up with the doctors there, but however, the complaint was suffered grave mental agony with respect to pain and suffering due to the substandard surgeries performed on him with sub-standard implants and plates in addition with the time and money spent so far.  The incensed act of the opposite parties had driven the complainant to seek compensation.  Hence the complainant issued a legal notice on 11.10.2019 claiming a sum of Rs.1crore from the opposite parties but the opposite parties had replied to the notice on 02.11.2019 denying his claim.  The surgeries conducted by the opposite parties was much less than is expected under the reasonable medical standard, which has been put on record by the doctors of New Hope Medical Centre.  There was no reasonable justification whatsoever for the substandard implants used and substandard surgeries performed by the opposite parties as well as unnecessary conducting of two surgeries and it was also evident that two surgeries conducted only to extract more money from the complainant which clearly amounts to deficiency in service and unfair trade practice on the part of the opposite parties. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.1,10,00,000/- with 12% interest per annum and also to pay the cost of the proceedings to the complainant.

The crux of the defence put forth by the opposite parties:-

3. Disputing the complaint allegation it was contended that on 07.08.2019 the complainant was taken to the opposite party Hospital’s emergency department at 2.50pm and he was diagnosed to have sustained injuries to the chest and left lower limb.  The complainant was admitted in the opposite party Hospital for further treatment. Basic Blood investigation, X-Rays and USG Abdomen, CT scan of the Thorax and ECG tests were taken.  Based on the investigation findings, Orthopaedic and Cardio Thoracic surgery opinions taken, the reports indicated that the complainant sustained multiple injuries.  The complainant’s blood sugar was very high and uncontrolled. Complainant did not sustain any head injuries and hence was admitted under Dr.D.Gokul Raj, the 2^nd opposite party who was one of the Senior Consultants in Orthopaedic Surgery.  The patient was planned for Proximal Femoral Fracture fixation with proximal femoral plate and percutaneous screw fixation for the posterior column of acetabulum. Based on the option provided, the complainant chose to proceed with Titanium implants, which was considered to be a superior quality alloy and an excellent grade material with bio-compatibility.  The 2^nd opposite party surgeon also explained that the proximal femoral fracture with proximal femoral plate and percutaneious screw fixation for the posterior column of acetabulum would be conducted in two parts, owing to the severe diabetes and compromised heart functioning of the patient.  Principal complaint of the complainant appears to be the reason for doing two procedures instead of doing all the surgical interventions in one procedure.  In this regard, the complainant appears to be relying upon the statement in the discharge summary of the 2^nd hospital wherein a statement found that the patient was unnecessarily made to go through two procedures. Since the said hospital and the doctor who had signed the discharge summary was not made a party to the proceedings. In fact that stand of the said hospital was contrary to the established practice in that regard and could have caused great physical risk to the patient.  The 2^nd opposite party surgeon took the opinion of a General Physician, a Cardiothoracic surgeon, an Endocrinologist, a Cardiologist, a Pulmonologist and an Anaesthetist prior to surgery, and all of them opined that the complainant can be taken up for surgery under the Moderate Risk category.  The complainant surgical procedure was decided to be conducted in two parts as the complainant, in the considered opinion of the surgeon and attending doctors, may not be able to tolerate anaesthesia for a prolonged period and it would be safer to subject the patient to anaesthesia for shorter duration on two separate occasions, whereby the patient could be stabilized and prepared well in the time between both surgeries.  The safety of the patient could, thus be ensured and this would also ensure better overall outcomes.  The patient and his attenders were well aware of both the surgeries.  The 1^st surgery was completed successfully by the 2^nd opposite party Doctor and his team on 09.08.2019 for Left Proximal Femur Fracture for duration of almost two and a half hours.  It was already clearly explained to the complainant that the first surgery was only part of the complete process and second surgery would be required and the same was explained in detail again, after which the complainant consented to undergo the second surgery.  The second surgery was completed successfully on 14.08.2019. The patient had an inherent risk of a higher complications post-surgery recovery owing to the diabetic condition of the complainant. On 26.08.2019 the complainant visited the opposite party’s Hospital with complaints of fever with chills and rigors.  He was treated by the General Physician (Dr.A.Preetham Arthur) and was diagnosed to have urinary tract infection and uncontrolled diabetes. He was admitted in the opposite party Hospital and was subjected to the necessary investigations and appropriate medication.  His diabetic status was managed with insulin therapy, fever was managed with paracetamol and infection with Antibiotic medication.  The complainant showed significant improvement and hence discharged on 02.09.2019. Orthopaedic devices are often associated with increased risk for diabetic patients due to impaired wound healing capabilities. Adverse biological responses for immunocompromised patients at the implant-tissue interface could lead to significant bone resporption that may increase failure rates.  Research and experience indicate that it was likely that the physiological condition of the patient would modify the cellular and molecular processes that guide skeletal tissue repair around the implant after surgery.  New Hope Medical Centre referred to as the second hospital had recommended the exact same procedure i.e. total hit arthroplasty as recommended by the opposite party Hospital.  He was admitted there on 23.09.2019 and the surgery was evidently performed on 24.09.2019.  It appears that at this second hospital the complainant had been provided misleading information that leads to the present complaint.  The complainant failed to make the second hospital i.e. New Hope Medical Centre a party to the proceedings.  It was submitted that they had correctly chosed the line of treatment.  The subsequent implant failure that the complainant faced was caused by the physiological condition of the patient.  The implant failure itself was caused because of the condition of the patient and the risk factors he carried.  This was a clear indication that if two procedures had been done at the same time in a prolonged surgery, the risks would have been far greater with regard to the life of the patient and this was clearly an unacceptable position to put the patient in.  The subsequent events in fact show that correctness of the treatment protocol adopted by the opposite parties.  The patient would not have undergone a surgery in the first place if he had suffered from a heart attack.  None of the reports from the opposite party hospital indicates that the complainant had suffered from a heart attack and there was no proof to indicate the same. Due to the violent injury, diabetes and history of alcohol consumption the body’s ability to heal reduced and thus leads to vascular necrosis of femoral head which caused the implant failure. It was explained to the patient and attender prior to surgery since it was a known complication listed in the medical literature and the patient carried a risk in that regard due to his underlying conditions. Thus contending that the second opposite party Dr.Gokul Raj had taken a course of action that would have been the same as that of another surgeon of similar skill and expertise, they sought for the dismissal of the complaint. 

4. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A8 were submitted. On the side of opposite parties proof affidavit was filed and document marked as Ex.B1 was submitted.

Points for consideration:-

1) Whether the allegations as to Medical negligence resulting in deficiency in service in conducting unwanted surgeries without following the standard line of treatment on the part of the opposite parties has been successfully proved by the complainant by admissible evidence?

2) If so to what reliefs the complainant is entitled?

 Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. 1^st Discharge Summary issued by the opposite parties dated 19.08.2019 was marked as Ex.A1;
2. 2^nd Discharge Summary issued by the opposite parties dated 02.09.2019 was marked as Ex.A2;
3. Discharge Summary of New Hope Medical Centre dated 27.09.2019 was marked as Ex.A3;
4. Bills related to the opposite parties was marked as Ex.A4;
5. Bills related to New Hope Medical Centre  was marked as Ex.A5;
6. Legal notice issued by the complainant to the opposite parties dated 11.10.2019  was marked as Ex.A6;
7. Reply notice of the 1^st opposite party dated 02.11.2019 was marked as Ex.A7;
8. Aadhar card of the complainant was marked as Ex.A8;
9. Acknowledgement from the Eureka Forbes for receiving the machine was marked as Ex.A14;

On the side of opposite parties the following document was filed in proof of their defence;

10. Case sheet of the complainant was marked as Ex.B1;

            5. The argument by the learned counsel for the complainant in nutshell is that for the fracture sustained by the complaint he was made to undergo two surgeries unwantonly and made to spend 6 lakhs in opposite party hospital and further 2 lakhs in another hospital subsequently. Further he also alleged that the material used by opposite parties were substandard resulting in implant failure. Thus he sought for the complaint to be allowed.

6. On the other hand the learned counsel for the opposite parties argued that they are one of the largest Multi Speciality Hospitals equipped and capable of treating patients with all kinds of illnesses and criticalities. It is their argument that the implant was decided based on the nature of injury and in the present case Proximal Femur was stabilized with a “Medical Grade Titanium Proximal Femur Locking Plate with Titanium Screws and Medical grade 316 L Stainless Steel wire coil” from a reputed Orthopaedic Implants Manufacturer.  Material was used only as per the wishes of the patient.  It is their case that the implaint failure possibility was clearly explained to the patient due to his Diabetes status.  The risk of the surgery was also explained to the patient before the surgery was carried out.  The complainant and attender signed before both surgeries knowing that the surgeon was only going to operate on the Left Proximal Femur on 09.08.2019 and that the Left Acetabulam would be operated only on a later date (14.08.2019) after further preparing the patient. The review/opinion expressed by the Doctor of New Hope Hospital was highly disputed by the opposite party. He argued that the same has misleading factors creating doubt and unnecessary suspicions over the mind of the patient.  When the patients come-up for review he was treated for fever and Urinary Tract Infection which was caused due to uncontrolled diabetes. At the time of review the complainant was evaluated by Dr.D.Gokul Raj who opined that the implant had malfunctioned as expected earlier and he advised the patient for re-affixment but the patient did not cooperate.  As alleged the complainant did not underwent any heart attack as alleged by the complainant during the surgery.  The allegation on the quality of surgery and implant materials used by the opposite parties was denied and thus it is argued by the learned counsel that there was absolutely no negligence or deficiency in service on the part of opposite parties Hospital and Doctors.

7. We heard the oral arguments adduced by both the parties and perused the evidences produced by them and arrived at the following conclusions;

1. According to Ex.A2 the Discharge Summary issued by the opposite party dated 02.09.2019 it is found that the complainant had come to the opposite party for 2^nd time wherein it was found that left lower limb edema was present on the surgical site and that the patient suffered with Urinary track infection and on examination and urine routine showed glucose 4+, erythrocyte 2+, leukocyte 2+, pus cells 36, bacteria 3+, MP QBC was negative.  Urine culture showed klebsiella pneumonia susceptible to Polymyxin.  Blood culture also showed kelbsiella pneumonia susceptible to Polymyxin.  As the patient was clinically asymptomatic and afebrile to Inj Lactagard 14 doses were given.  Repeat urine cluture was sent and is awaited.  However it is seen that for the edema no treatment was given as under wound care related it is found Nil.  Thus it is proved that no treatment for the edema suffered by the complainant at the surgical site was provided by the opposite parties at the time of review;
2. Vide Discharge Summary of the New Hope Medical Centre dated 27.09.2019, the reason for admission was found as “49 years old male patient presented with history of RTA and sustained injury over left hip and chest on 07.08.2019, no history of head injury.  Patient went for Ramachandra Hospital and diagnosed as Left Proximal femur fracture, for which left proximal femur planting done on 09.08.2019 and left acetabulam posterior caloum fracture for which left acetabulum Percutaneous screw fixation done on 14.08.2019, unnecessarily they did two operations. Now patient came with complaints of pain over left hip and thigh, complaint of difficulty to stand and walk since 07.08.2019, admitted here for further management.” Thus it is made evident that the condition of the complainant found in the review i.e. on 02.09.2019 persisted even at the time of admission at New Hope Hospital making the alleged treatment said to have been given by opposite parties unbelievable;
3. Vide the Discharge Summary under Procedure Notes it is seen that under General Anaesthesia the wound was opened in layers and implant was removed.  Femoral head was debrided tearing was done.  Screw was found to pass in the acetabulum.  Further treatment provided was also stated as 50mm acetabulum cap non inserted and fixed with screw 3 in NOS.  Constrained was inserted.  Femoral stem was prepared. 12x210mm M.P.stem was inserted into the canal.  28mm small size head was fixed into the stem.  Head was delocated into the acetabulum clrity wound wash given.  Reconstructed with SS wire, would wash given, would closed in layers. Sterile dressing applied.” This treatment seems to have necessitated and done only due to the deviation from the standard life of treatment done by the opposite parties;
4. When specifically it was alleged by the complainant that he was informed at the time of admission by the opposite parties that only one surgery would be done, the opposite party alleging that they informed the complainant that 2 surgeries would be necessitated due to the health condition of the complainant did not provide any material evidence less consent obtained from the complainant that he consented for 2^nd surgery;
5. As per the arguments and version of the opposite parties implant malfunction was expected earlier and informed to the complainant for which another procedure was advised by Dr.Gokul Raj which was not accepted by the complainant.  However, no piece of evidence was submitted by the opposite parties to show that the implant failure was already explained to the complainant or his attenders;
6. The defence put forth by the opposite parties that the risk of implant failure due to the aspect of uncontrolled diabetes for the complainant resulting in infection and consequent fever was explained to the complainant and he was treated for the same was not proved successfully by any medical literature or any evidentiary proof.  No literature was produced that malfunction or implant failure occurs due to diabetes;
7. The defence of the opposite parties that they had used only quality material for the implant to the complainant was not substantiated by evidence which aspect assumes significance as complainant raised an allegation to the quality of the implant materials.  Merely stating that they had used quality implant could not be considered as satisfactory defence for the allegation raised by the complainant;
8. When the complainant had proved his allegations against the opposite parties with sufficient medical evidence i.e. Discharge Summary issued by the Doctor of New Hope Medical Centre who was also cross examined by the opposite party had discharged his onus of proof but the opposite party failed to disprove the same by any other medical evidence;
9. The 2^nd opposite party who actually treated the complainant and performed the surgery did not file any separate written version or proof affidavit to establish that the surgery performed by him was only according to the standard skill and procedure.  Both hospital and the Doctors/the treating surgeon cannot have the same defence in spite of application of the principle of vicarious liability. No documents was filed and no defence was put forth separately by the 2^nd opposite party leads o negative presumption against them and in favour of the complainant;
10. The Doctor who treated the complainant at New Hope Medical Centre was also cross examined by the opposite parties.  Even after cross examining him the opposite parties could not point out any discrepancies in his statement that two surgeries are unwanted for the injury suffered by the complainant;
11. The allegation that the 2^nd Hospital i.e. New Hope Medical Centre was not made as party to the proceedings raised by the opposite parties deserves to be dismissed as though not made as a party the Doctor concerned was cross examined by the opposite parties 1 & 2.  Therefore non joinder of necessary party did not cause any prejudice to the opposite parties and did not affect the case of the complainant;
12. As per the Discharge Summary issued by the New Hope Hospital dated 27.09.2019 it is clearly stated that unnecessarily two operations done to the complainant.  A professional will not blame another professional unnecessarily which aspect has to be taken up for consideration in deciding the complaint;
13. No Proper explanation given for the allegation of the complainant that the opposite parties failed to disclose the Cardiac arrest suffered by him by the opposite parties.  When it is admitted by the opposite parties themselves that due to the condition of the complainant they decided for moderate risk category surgery as complainant could not withstand anaesthesia for long, the allegation of complainant assumes significance;

8.  On the discussions made above, it is clear that the complaint allegations were not successfully refuted by the opposite party Hospital and the Doctor.  In the said scenario we have no other option but to hold that the opposite parties failed to perform their duty to their customer the standard skill and care which they ought to have performed resulting in damage i.e. 3^rd surgery to the complainant at an additional expenses of Rs.2,00,000/-.  Thus direct nexus between the dereliction of duty and damage caused to the complainant was well established which was not successfully disproved by the opposite parties.  We could safely apply the Principe of res ipsa loquitor that only due to the fault of the opposite parties the 3^rd surgery was performed to the complainant which was evidently necessitated resulting in medical negligence which could be termed as deficiency in service. Thus, this point is answered accordingly holding that the complaint allegations were proved by the complainant successfully by admissible evidence.

Point No.2:-

9. With respect to the relief to be granted to the complainant it is found that he had spent around Rs.6,00,000/- for both surgeries done by the opposite parties and an additional expenses of Rs.2,00,000/- in the 3^rd opposite party’s Hospital.  For the sufferings physically, mentally and the monitory loss suffered by the complainant we award a comprehensive compensation of Rs.10,00,000/-to be paid by the opposite parties jointly and severally to the complainant along with cost of the complaint. 

In the result, the complaint is partly allowed directing against the opposite parties 1 & 2 directing them jointly and severally  

a) To pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) towards compensation for mental agony and hardship caused to the complainant;

b) To pay a sum of Rs.10,000/-(Rupees ten thousand only) towards litigation expenses to the complainant.   

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30^th day of November 2023.

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MEMBER-I                                                                                                          PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

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MEMBER-I                                                                                                         PRESIDENT