This Complaint coming up before us for hearing on                 21-11-2012 in the presence of Sri K. Seshagiri Rao, advocate for complainant and of Sri G. Punna Reddy, advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking compensation of Rs.3, 00,000/- complaining deficiency of service in treating him besides costs.

2.  In brief the averments of the complaint are:

        The complainant on 15-12-09 approached the opposite party for treatment of injuries sustained in accident.   Dr. G. Nagaraju of the opposite party treated the complainant from 15-12-09 to 20-12-09.   The opposite party collected Rs.10, 000/- towards treatment and made the complainant to incur Rs.35, 000/- towards medicines and other charges though the complainant came under the purview of ‘Arogyasri’ Medical Scheme.  The opposite party at the time of joining reported that grafting was conducted to the leg.   After removal of bandage, the complainant questioned about not performing grafting for which the opposite party stated that grafting was not necessary.  After removal of bandage it was found that the wound area was with swelling.  Inspite of that the opposite party discharged the complainant.   After discharge the complainant used to visit the opposite party once in three days for dressing.   The complainant got fever on 20-01-10 and experienced abnormal pain in wound area.  The complainant approached Dr. Biram Sambasiva Rao, Vijayawada and he found that the wound area was formed with pus.  Dr. Sambasiva Rao removed the pus, cleaned it, due to that a huge damage up to one inch depth was caused to leg.  Dr. Sambasiva Rao suggested grafting.   The complainant on 27-01-10 met General Manager of the opposite party and informed his grievance who in turn assured the complainant with proper treatment.   With the said assurance the complainant again joined in the hospital of opposite party on 30-01-10.  The opposite party collected ‘Arogyasri card’ which was rejected earlier and claimed amount under the scheme.  The doctors of the opposite party conducted grafting.  At the time of grafting the doctors of opposite party left a surgical staple inside the leg which can be found in x-ray.   Even after grafting the complainant suffered from same condition.   The complainant again approached the General Manager of the opposite party who in turn assured that he will incur all necessary expenditure if the complainant got treated outside the hospital.   The complainant joined in M/s Sanjeevi hospital at Visakhapatnam and they conducted grafting and found surgical staple.   Thus the opposite party treated the complainant negligently and committed deficiency of service.   The complainant sustained heavy monitory loss, mental pain and loss of earning. The complainant is not able to move freely even till today and not able to move the foot in normal course. The complainant estimated the loss/damage at Rs.3, 00,000/-.  The doctors failed to suggest or conduct physiotherapy.   The complainant on 27-03-10 got issued a notice demanding the opposite party to pay Rs.3, 00,000/- as compensation.  The opposite party though received notice kept quite.   The complaint therefore be allowed.

3.  The contention of the opposite party in nutshell is hereunder:

        The complainant got admitted into the Manipal hospital on early morning of 15-12-09 with a complaint injury to the leg due to accident and that Dr. K. Naga Raju, M.S. Mch consultant plastic surgeon attended on the patient and on examination he found that there was avulsion of 12x6 cm skin flap, personal nerve, muscles and fracture fibula and after explaining that bone need not be repaired, debrided the avulsed muscles and fat skin flap, re inset was given and suturing was done and after 5 days complainant was examined in-patient of the hospital by opening the dressing, the flap sutured was looking normal and no other complaints, the complainant was got discharged and that the above treatment was just debridement and flap suturing, which was not coming under the arogyasri Government Health Scheme, hence the complainant was admitted under the paid category and the same was explained to the complainant and also obtained his consent on the necessary papers. The complainant came for the follow up dressing after one week and there was necrosis of the flap which was sutured before with blackening noticed at the tip and that after cleaning the wound, dressing was done and advised the complainant and that the tip of the flap was (distal 25%) has sloughed out, which need to be removed and grafting to be done.   The complainant asked time for re-admission, for reasons known to opposite party and after 15 days the complainant visited with complaint that he visited another doctor and removed the collection and cleaned the wound and that there is a gap of the wound, needs to cover.   The complainant was examined by the Doctor in the out patient unit and found that there was a loss of 6x4 cm tip of the flap with exposed part of the fibula and other muscles and he was advised to admit in the hospital immediately and the complainant on 30-01-10 and on that date as there was a loss of skin with exposed bone he was admitted under Arogyasri Government free health scheme with a code=”debridement and flap cover for the exposed bone due to skin loss and after getting approval from the concerned authorities, surgery was performed under the health scheme on 01-02-10 after thorough investigation into the matter, pursuant to which approval was accorded.  All the above process was done as per the norms and as per the procedure followed by the professional for the treatment of the above said injury.

Dr. G. Nagaraju had followed the procedures as per given medical standards and the clip was inserted due to excessive bleeding from the complainant and with no other alternative remedy and for stopping bleeding the clip was placed on the complainant.  It is one of the methods followed by the surgeons for vascular surgery being part of a procedure during surgery and post surgery and in order to avoid post surgery bleeding, the clip placed in the leg of complainant was retained intentionally to avoid bleeding and it is one of the methods prescribed for the above surgery.    The complainant took treatment in different hospitals before surgery was conducted in the hospital of the opposite party.   The doctors who treated the complainant at other hospitals are necessary parties.   The complaint is therefore bad for non joinder of necessary parties.   The complainant was hale and healthy when he was discharged from the hospital of the opposite party.   The complainant out of his will got treated at other hospitals without being referred by the doctor who treated.   The doctors of opposite party gave discharge summary to the complainant and explained him the follow up treatment.   The complainant failed to take follow up treatment in the hospital of opposite party and it amounted to complainant’s negligence.  The opposite party treated the complainant properly by taking due care and caution and followed the standard prescribed procedures.   The opposite party did not commit any deficiency of service.   The complaint therefore be dismissed.       

4.   Exs.A-1 to A-10 and Exs.B-1 and B-2 were marked on behalf of the complainant and opposite party respectively.   Exs.X-1 and X-2 were also marked.    

5.  Now the points that arose for consideration in this complaint are:

1. Whether the opposite party committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.    Admitted facts in this case are these:

          a).   The complainant got admitted in the hospital of the opposite             party on 15-12-09 and took treatment as in-patient till                         20-12-09 (Ex.A-1).

        b).  No grafting was done during that period.

c).  The opposite party collected charges (Ex.A-2) from the                               complainant for the treatment covered by Ex.A-1.

        d). The complainant again took treatment in the hospital of the                        opposite party from 30-01-10 till 08-02-10 (Ex.A-1).

        e). The opposite party treated the complainant under ‘Arogyasri                card’ for the treatment given by it from 30-01-10 till                            08-02-10.

        f). The complainant sent notice to the opposite party who in turn                      received it (Exs.A-8 and A-9).

        g). This Forum sought expert opinion from the Government                               General Hospital, Guntur (Exs.X-1 and X-2).

7.  POINT No.1:-  Medical negligence cannot be inferred.  It is well settled in law that initial burden lies on the complainant to prove medical negligence/deficiency of service primafacie and there after the burden shifts to the opposite party to prove absence of negligence/deficiency of service.

8.    The complainant in his written arguments raised the deficiency of service on behalf of the opposite party as mentioned hereunder:

        a. Non application of Arogyasri in the 1^st instance.

        b. Non grafting of wound in 1^st instance.

        c. Applicability of Arogyasri scheme.

d. Leaving surgical staple inside the leg.

e. Non suturing of the perennial nerve.

        In order to discharge their burden both parties relied on Exs.X-1 and X-2 and the evidence of experts (Pws 2 and 3). 

9.     The above five can be dealt under two heads:

        1. Medical negligence :(b, d and e) Pw3 is                                          Dr. M. Markandeyulu, Professor and Head of the Department of Plastic Surgery, Government General Hospital, Guntur.  PW3 in chief examination itself stated that grafting was not done at the 1^st instance, the necessity of doing grafting to the wound was the subjective satisfaction of operating surgeon, at the initial stage the operating surgeon might have though of survival of skin flap was possible, it might take seven or ten days to decide whether remaining tissues alive or dead, if the tissues are found alive, no grafting is necessary, if tissues are found dead grafting is necessary.   Pw3 in his cross examination stated that it was not necessary in this case to stay as in-patient for more than 5 days.  In this case the complainant took treatment as in-patient from 15-12-09 to 20-12-09.  Regarding surgical staple Pw3 stated that he could not say whether use of surgical pin as found in Ex.A-10 was necessary or not, it being the option of operating surgeon, the surgical pin found in Ex.A-10 did not cause any harm to the injured as it did not move in any direction.   Pw2 is professor of orthopedics, in Government General Hospital,  Guntur.   PW2 in chief examination stated that surgical staple was in a place where it cannot cause any injury to nerve or vessel any other important structure, the stainless staple found in the body of the complainant as in Ex.A-10 can cause harm if it compresses or damage the nerve or vessel, but the staple used in Ex.A-10 was not nearer to the important structures, at present the said staple did not migrate due to formation of fibrosis.   Regarding non suturing of peroneal nerve PW- 3 stated that the peroneal nerve was not sutured at the time of initial treatment and the reason for not suturing the peroneal nerve did not find place in discharge summary.  PW2 stated that it was mentioned in discharge summary that peroneal nerve was cut and not sutured in OT notes and hence it is unlikely to cause any pain or discomfort to the patient, any loss of movements of foot were due to nerve injury sustained at the time of injury which may recover after repair of the nerve.   As against the said expert evidence the complainant neither examined the doctor who treated him subsequently and removed the surgical staple nor placed any material to show that non-suturing of peroneal nerve and leaving surgical staple inside the leg and non-grafting of wound in the 1^st instance caused him misery and discomfort.    Under those circumstances, we opine that the opposite party did not commit any deficiency of service in treating the patient.      

10.   On the other hand, the expert committee (Exs.X-1 and X-2) opined that there was no evidence of gross negligence in the treatment of the above patient, except minor lapses and delays that might have occurred for which either party may be responsible.   The complainant in his complaint and affidavit mentioned that after discharge he used to visit the opposite party once in three days for dressing.   On the other hand, the opposite party in its version and affidavit mentioned that the complainant came for the following dressing after one week and there was necrosis of the flap which was sutured before with blackening noticed at the tip and that after cleaning the wound dressing was done and advised the complainant and that the tip of the flap (distal 25%) has sloughed out, which need to be removed and grafting to be done.   The above treatment done one week after discharge of the complainant did not find place either in Ex.A-1 or A-2.  The complainant approached Dr. Beeram Sambasiva Rao at Vijayawada on 21-01-10 before getting himself admitted in the hospital of opposite party for the second time on 30-01-10. The complainant did not file any evidence to show the treatment which he took from Dr. Beeram Sambasiva Rao.   The opposite party in our considered opinion did not mention the subsequent treatment given by it and thereby did not act prudently and ethically and thereby committed negligence i.e., not mentioning the treatment given by it after the 1^st surgery either in                          Ex.A-1 or A-2.    

        2. Administrative negligence: (a & c)    The opposite party provided treatment covered by Ex.A-2 to the complainant under Arogyasri scheme.   It is the contention of the opposite party that the treatment given to the complainant during 15-07-09 to 20-07-09 (Ex.A-1) did not come under the purview of Arogyasri scheme.   It is within the special knowledge of the opposite party which treatment was covered by Arogyasri scheme.   The opposite party did not place any material to show that the treatment given to the complainant covered by Ex.A-1 did not come under the purview of Arogyasri scheme to discharge its burden.  We therefore draw an adverse inference against the opposite party and opine that the treatment covered by Ex.A-1 was also covered by Arogyasri scheme.   As the opposite party collected Rs.29, 194/- (as seen from Ex.A-2) from the complainant it is bound to return that amount.  We therefore answer this point in favour of the complainant.

11. POINT No.2:-   The complainant claimed Rs.3, 00,000/- as compensation from the opposite party for the suffering on account of negligence of the opposite party.   In view of our findings on point No.1 directing the opposite party to pay Rs.10, 000/- (for not mentioning the entire treatment particulars given to the complainant in Ex.A-1 or A-2) will meet ends of justice.   We therefore answer this point accordingly.

12.  POINT No.3:-   In view of above findings, in the result the complaint  is partly allowed as indicated below:   

1. The opposite party is directed to pay Rs.29, 194/- (Rupees twenty nine thousand, one hundred and ninety four only) to the complainant together with interest @9% p.a., from the date of complaint till realization.
2. The opposite party is directed to pay Rs.10, 000/- (Rupees ten thousand only) as compensation to the complainant.
3. The opposite party is directed to pay Rs.1, 000/- (Rupees one thousand only) towards costs to the complainant.
4. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.

        Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 29^th day of November, 2012.

          MEMBER                                                             PRESIDENT

APPENDIX OF EVIDENCE

Witness Examined

PW 1   -     Chief Affidavit of PW1 / Complainant

PW 2   -     Dr.V.V.Narayana Rao

PW 3   -     Dr.M.Markandeyulu       

DOCUMENTS MARKED

For Complainant  :

For Opposite Party  :

By the Forum:

                                                                                                                  PRESIDENT