SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, for getting an order directing opposite party to pay an amount of Rs.2,50,000/- for the treatment expense and Rs.4,50,000/- towards compensation and Rs.1,500/- towards cost of the proceedings of this case.
Brief facts of the case of the complainant are that the 1st OP is the manager of the Saba Hospital Payyannur and the 2nd OPO is Ortho Surgeon of the Saba Hospital who is working under OP No.1. Due to slip and fall the complainant sustained both forearm fracture on left hand on 14/07/2013. The complainant was rushed ot OP Hospital and on 15/07/2013 ORIFF done. The complainant was discharged on the 10 the post OP day following suture removal. She came for follow up at 1 month following surgery and noticed discharging sinus, with continuous, serous, discharge present throughout the day for which she was treated with medication, but sinus did not heal. She also complaints of left hand deformity immediately following surgery, with complaints of inability to straiten little and ring finger. She also complaints of tingling numbness sensation over the left hand since 4 months. Therefore the complainant was hospitalized with OP and surgery was done (wound debridement). But no healing occurred. Solely because of the negligence of OP NO.2 in conducting surgery and allied treatment form 14/07/2013 to 28/11/2013 for a long period of four and half months without due care, observation and diagnosis and treatment of the complaint sustained much agony, pain strain, tension both mentally and physically. The complainant spent a huge amount of Rs.1,50,000/-. The complainant is a lady of 65 years repeatedly complained the uneventful treatment and unforgettable pain neither OP advised for further neither advanced medical examination nor prescribed the same. The complainant approached the KMC Hospital, Mangalore on 29/11/2013 with the unhealed injury. He admitted there as an IP up to 06/12/2013 and discharged with an advise of active finger movement since the little finger and ring finger was not able to strengthen occurred to due to the negligent treatment by OP and spent there more than Rs.1,00,000/-. Even after the discharge from KMC Hospital, Mangalore, the complainant is still suffering disability and disfiguration of the left hand. If the OPs have exercised with proper care and caution the unfortunate incident would not have been happened. The complainant sent a legal notice to the OPs on 27/05/2014 demanding Rs.10,00,000/- into for the treatment spent for higher consultation compensation for pain, disability suffering and disfiguration of left hand. But the OPs have neither complied with the demand nor sent a reply for the same. Hence the complainant filed this complaint. Complainant on the basis of these averments sought compensation from the OPs, as referred above.
After receiving notice, OP No.2 doctor filed his written version. OP No.1 hospital filed memo stating to adopt the contention of OP No.2, contention of OPs are that complainant came to the 1st OP hospital on 14/07/2013 with an open fracture caused to left forearm following a fall and admitted to the hospital on the same day. The 2nd OP had examined the patient and advised open reduction and internal fixation of fracture and explained the pros and cons and complications that can occur with surgical fixation of fracture. The complainant and bystanders agreed for fracture fixation and the same was posted to 15/07/2013. After fully conversant with surgical procedure and risk factors involved there in, the complainant and bystander voluntarily consented for surgery. Under all aseptic care and sterile precautions the 2nd OP conducted open reduction and internal fixation of both bone forearm under auxiliary block. Intra operatively radial shaft fracture was fixed with 7 hole LCP and ulna exposed over subcutaneous border, wound debrided and fracture fixed with 7 hole DCP plate and screws and an above elbow slab was applied. Post operatively check x-ray showed satisfactory alignment and the patient was started on antibiotics. On 22/07/2013 wound inspection showed the wound clean and healthy and the complainant was discharged with an advice for review. After 10 days the complainant reviewed the 2nd OP and suture removal was done, POP slab was removed after 6 weeks and X-ray showed normal union of fracture. On October 2013 the complainant came to the hospital with signs of superficial wound and serous collection and was started on oral antibiotics and wound healed. On November 2013 the complainant again reported with wound and pus collection. The patient was taken to Operation Theater and wound cleaning was done and infected screw was removed. Pus was taken and given for culture and sensitivity and the complainant was advised admission for starting IV antibiotics. But the complainant refused admission and left the hospital. The 2nd OP had attended and treated the complainant with due diligence and care as per accepted medical practice and protocol. The complainant developed wound infection about three months after surgical fixation and it was late onset of infection due to causes unconnected to surgery or post surgical care and induced by factors beyond the control of the 2nd OP. The discharge summary issued form KMC hospital reveals almost healed surgical scar except discharging sinus 1x1 cm. seen over mid ½ of scar over ulnar aspect with sprouting granulation tissue without any swelling. There was no abnormal mobility of bonycrepitus. Wound debridement was the only procedure done at KMC hospital as part of treatment for wound infection. The complainant also admits that she is a dairy farmer and it is obvious that she exposed to circumstance prone to cause wound infection by the nature of her work. The allegation of negligence against the OPs in conducting surgery and follow up treatment is highly ill motivated and hence denied. There is no negligence or deficiency in service as alleged by the complainant. The complainant is not entitled to get any relief as prayed for in the complaint. Therefore, prayed for the dismissal of the complaint.
OPs, on the basis of these averments, sought the complaint to be dismissed.
During pendency of this case, it is reported that OP No.2 orthopedic surgeon expired, filed memo with death certificate. He has been deleted from the party array and the case is proceeded against OP No.1.
During evidence, the complainant examined as Pw1 and got Ext.A1 to A9 series marked on evidence. The disability certificate of the complainant issued by Pariyaram Medical College is marked as Ext.X1 and the case record from KMC Hospital Mangalore with X-rays is marked as Ext.X2 series. Dr. B Seetha Rama Rao, the HOD of ortho Medical department of KMC, from whom, the complaint availed further treatment after OP hospital, is examined as expert doctor Pw2. Manager of OP1 hospital (Chief Medical officer of OP No.1) is examined as Dw1. Case record of OP1 hospital is marked as Ext.B1.
On the basis of the pleading of the parties, the only point that arises for consideration is whether OP2 had made wrong diagnosis and had given wrong treatment for the fracture of the left forearm sustained by the complainant Mr. Janaki (aged 65 in 2014)
The complainant has averred in the complaint that the diagnosis made and the treatment given by OP No.2 for the fractured forearm of the complainant was wrong and the pain, strain, tension both mentally and physically persist from 14/07/2013 to 28/11/2013 and there was deformity in the left forearm of the complainant.
Complainant has specifically stated thus: due to deformity in the left forearm she is not able to work with the left hand. She is a dairy farmer and the same is the sole of her livelihood. As she was not able to work with the left hand, she had to sell her cows and thus ended her livelihood. All these resulted due to the negligent treatment in hospital run by the 1st OP and the negligence of the 2nd OP in conducting surgery and allied treatment. Complainant alleged that she was discharged from the hospital at tenth post OP day following suture removed. She came follow up for one month during the period which she notice discharging sinus with continuous serous, non foul smelling which treated with medication in the hospital. But the sinus did not heal.
OPs contended that under all aseptic care and sterile precautions, OP No.2 conducted open reduction and internal fixation of both bone forearms under auxiliary block. Post operatively check X-ray showed satisfactory alignment and the patient started on antibiotics. On 22/07/2013 wound inspection showed the wound clean and healthy and the complainant was discharged with an advice for review. After 10 days the complainant reviewed the 2nd OP and suture removal was done, POP slab was removed after 6 weeks and X-ray showed normal union of fracture. On October 2013 the complainant came to the hospital with signs of superficial wound and serous collection and was started on oral antibiotics and wound healed. Further he did not find any deformity. On November 2013 the complainant again reported with wound and pus collection. The patient was taken to Operation Theater and wound cleaning was done and infected screw was removed. Pus was taken and given for culture and sensitivity and the complainant was advised admission for starting IV antibiotics. But the complainant refused admission and left the hospital. The 2nd OP had attended and treated the complainant with due diligence and care as per accepted medical practice and protocol. The complainant developed wound infection about three months after surgical fixation and it was late onset of infection due to causes unconnected to surgery or post surgical care and induced by factors beyond the control of the 2nd OP.
OP contended that complainant is a dairy farmer and she exposed to circumstances prone to cause wound infection by the nature of her work.
OPs submitted that from discharge summary of KMC hospital, reveals almost healed surgical scar except discharging sinus without any swelling. Further submitted that there was no abnormal mobility of bony crept us. Wound debridement was the only procedure done at KMC hospital as part of treatment for wound infection.
Ext. X2 is the treatment record of KMC Hospital, Mangalore. It is seen from Ext.X2 that on the admission day at KMC Hospital on 29/11/2013 ie. after 4 months from the surgery done by OP No.2 and after 3 months from follow up to OP No.2, the clinical condition of the complainant as recorded is that C/o discharging sinus form (L) forearm since 3 months, H/o both bone forearm fracture 3 months back, operated and since then developed discharging sinus which is non healing, 5X1 Cm. scar healed by primary intentia, tenderness over the distal 2/3rd of arm, Active discharge present. X—ray shows plate inside with fracture uniting. Further reveal that the patient was admitted. Wound debridement done on 30/11/2013. No swelling /Gaping, the treatment given till 06/12/2013 with oral medicine and Antibiotic injections.
Further Ext.X2 @ dated 29/04/2014 shows that the complainant was again admitted on 18/04/2014. Final diagnosis in Ext.X2 (b) that left both bone forearm fracture with 8 months old left both bone forearm fracture with implant in Situ. Pain and swelling over left forearm since Monday. H/Present illness: Patient was apparently normal today morning had slip and fall at home, following which she developed pain and swelling. Pain was severe in intensity sudden in on –set, radiate to hand and aggravates on movement and relieves on rest. Pain was associated with swelling acute in onset, gradually progression. Patient complaints of swelling over lower lip after the fall associated with pain acute in onset. History of fall 8 months back for which she was diagnosed with both bone forearm fracture operate d with ORIF plating. For discharging sinus wound debridement was done on 30/11/2013. Physical examination of left forearm diffuse swelling over mid forearm, no pen wound or sinus, Deformity seen over mid shaft and distal forearm, tenderness over mid forearm, abnormal mobility and crepitus present over mid forearm, ROM elbow wrist could not be elicited because of pain, no sensation Medical one and a half finger.
X-ray (Pre OP) shows left both bone forearm with old left both bone forearm fracture with implant in Situ
Course of treatment on 19/04/2014 :- Implant removal and ORIF with plating (LCP)done under General anesthesia.
The doctor who treated the patient on 19/04/2014 was Dr. Seetha Ram Rao, who has been examined as Pw2. He also deposed in accordance with Ext. X2,X2(a) and Ext.X2(b).
From Ext. X2, X2@ and X2(b) the contention of OPs that, the complication and deformity as alleged by complainant was caused due to 2nd fall of the complainant on 18/04/2014 is proved. Now only question is the discharging sinus from the wound was happened due to any negligence on the part of OPs?
In the version OPs stated that after the surgery on 15/07/2013, the patient was discharged after 10 days. On 22/07/2013 wound inspection showed the wound clean and healthy. After 10 days the complainant reviewed the OP2 and suture removal was done, POP slab was removed after 6 weeks and X-ray showed normal union of fracture. Further on October 2013 the complainant came to the hospital with signs of superficial wound and serous and was started on oral antibiotics and wound healed. On November 2013 the complainant again reported with wound and pus collection. Wound was cleaned and advised the patient for admission for starting IV antibiotics. But the patient refused admission and left the OP hospital.
From Ext.B1, it can also be seen that till the discharge date 22/07/2013, the patient had no complication or extra pain and discharging sinus at the wound site.
On analyzing the evidence of Dr. B Seetha Rama Rao the treated doctor at KMC from 19/04/2014, 2nd fracture happened to the complainant, we can reveal that the facts that the history of the illness at the admission time on 29/11/2013 at KMC hospital (Ext.A6) was a statement given by the patient. It is a fact that there was infection at the wound site. Pw2 doctor stated that the patient should be very careful until the wound is properly healed. Further the healing of the wound depends on the medication and dressing. Further the learned counsel of OP put forwarded questions to Pw2 as “if there was no proper care from the patient there may be chance of infection? A) Yes. Further the implant fixed in the hand was intact? Yes. Infection is one of the potential complications associating the fracture? Yes. Further sinus developed after one month of 1st surgery? Yes. Normally infection would have developed from 24 hours to 48 hours after surgery? Yes. However sinus will take 1 month to appear. There is no evidence to show that this patient had taken any treatment after discharge from OP’s hospital? No evidence. If infection left untreated it may lead worsen and warrant serious management? Yes. If the patient take the treatment immediately it could have been cured easily? Yes. You cannot say that the reason for infection definitely due to the failure of the accepting precautions from the previous hospital? I cannot Auto claim machines are used in all hospital’s to sterilize the instrument? Yes. The deformity caused to the nerve may be due to infection or due to surgery? Yes. These are the 2 main reasons. Do you have any opportunity to assess the deformity? I have noted the improvement in Ext.X2 documents.
The complainant had not averred in the complaint that the infection was caused due to non-sterilized equipments used at the operation theatre. Further for checking infection it is highly necessary to follow auto claving of instrument (A) Yes. During cross-examination Pw2 deposed the Auto claving machines are used in all hospitals to sterilize the instrument. During Re-examination it is stated by Pw2 that earlier steel plate it was inserted by the local hospital was removed by me and a new steel plate was inserted due to bone infection during follow up.
From Ext.X2 (a) and (b) it is clear that the earlier steel plate was removed by Pw2 on 19/04/2014 when the complainant approached him with 2nd fracture caused due to fall on 18/04/2014. It is also clear that admission diagnosis on 18/04/2014 left back bone forearm fracture with 8 month old left bone forearm fracture with implant inside. Implant removed and ORIF with plating. The fracture diagnosed in Ext. X2 (a) reveals that a 2nd fracture occurred to the complainant on the same site of previous fracture and surgery was done on the patient removed the implant fixed by OP NO.1 by OP hospital on 19/04/2013. X-ray taken pre-OP also reveals the said fact.
These circumstances and from evidence of Pw2 would clearly go to show that the deformity as stated in Ext.X1, in the left forearm or to fingers in left arm of the complainant, was due to the negligence of the complainant by 2nd fall on 18/04/2014. Further there is no conclusive evidence to arrive a conclusion that the infection was caused due to the negligence from side of OPs 1 and 2. Pw2 deposed that if the infection left untreated it may lead worsen and warrant serious management. If the patient takes the treatment immediately it could have been cured easily.
Having regard to these facts and in the circumstance of the case, we are of the opinion that the complainant failed to prove that there was any negligence on the part of the OPs either in the surgery or in the treatment given to the complainant to her fractured left forearm bones.
Having regard to these facts and in the circumstances of the case, we find absolutely no merit in the complaint.
In the result, therefore, this complaint fails and it is dismissed. No order as to cost.
Exts.
A1- Discharge card issued Saba hospital dated 25/07/2013
A2- Lab report dated 14/07/2013
A3-Lab report dated 15/07/2013
A4- ECG report dated 14/07/2013
A5- Prescription list dated 29/07/2013
A6- Discharge Summary issued by KMC hospital Mangalore dated 06/12/2013
A7- Copy of lawyer notice
A8,8(a)- Postal receipt dated 27/05/2014
A9- A9(a)- Acknowledgement cards
X1- Disability certificate issued by Pariyaram Medical college
X2-Case records from KMC Hospital, Mangalore with X-rays.
B1-Case record
Pw1-Complainant
Pw2-Dr. B Seetha Rama Rao
Dw1- OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
