SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint under section 12 of Consumer Protection Act 1986, against OPs alleging medical negligence and deficiency in service.
The averments made in the complaint are that he was a senior citizen aged 67 years at the time of filing this complaint. In the year 1987 he had met with a motor accident and sustained injuries on his left leg. The said injuries were healed long back and was working in so many units without any difficulties. He have been doing business also in Veerajpet. On 05/09/2014 pain was developed on his left leg and was shown to Dr. K M Muraleedharan, Mattannur (Orthopedic surgeon). He advised to admit in a hospital at Mattanur but he was not in a position to afford huge room rent and medical expenses there and therefore he was compelled to go to Kannur Medical College Hospital Anjarakkandy (Respondent No.1). On 09/09/2014 he was admitted in the said hospital and the treatment under Dr. Muraleedharan started. Within few days he was recovered from the pain on the leg and was about to discharge from the hospital. On 18/09/2014 a team of 4 Doctors attached to the respondent No.1 above attended and examined his left leg and observed that leg was half an inch shorter than the other leg and was having a bend also. They advised him to treat that leg by inserting a ring. They also advised complainant to have a surgery on the left leg. But he was reluctant to undergo surgery since he was not having enough money and other facilities to afford the surgery as advised by them. At last he was compelled by the respondent No.2 to undergo surgery thinking that his leg could be normalized in length. Accordingly Dr. Sreenivas (Respondent No.2) conducted surgery on left leg on 23/09/2014. After surgery he was constrained to remain in the hospital for 32 days and an amount of Rs. 90000/- (Rupees ninety thousand only) was already spent towards the doctor’s fees, medicine and other requirements during that period. At the time of discharge from the hospital the respondents had advised him to go to the hospital twice in a weak. He had strictly complied and followed all the advise and instructions given by the respondents. For every review, he had to spend Rs.1200/- each. Even though the post surgery treatments given by the respondent No. 2 was in progress, pain on the left leg aggravated to a maximum. As the pain became unbearable he was compelled again to admit in the hospital and the treatment again continued. During that period the respondent No.2 performed some more surgeries on the left leg by drilling the bone. Moreover the bone below the knee also was cut and that resulted in shortening the leg for 3 inches. The said surgeries were done by the doctor by ignoring his reluctance in performing the surgery again. He had not given any consent to the respondents for conducting the surgery again and again. At last it was happened and resulted in shortening the left leg for four inches. It is submitted that as the shape and size of his left leg has been changed to a great extent and deformities has developed on the leg he cannot walk properly by putting the foot on the floor. Moreover the mobility of the left foot also has been seriously affected by the wrong advise and unwanted surgery conducted in the responded No.2 who is working under respondent No.1 above. OP2 had told him that by wearing shoes with belt he could walk by using a crutches. At last he was constrained to seek medical advice and further treatment from the hospital and Yenepoya Medical College Hospital, Mangalore. The doctor concerned there told him that the left leg has been shortened due to the wrong medical advise and unwanted surgery conducted by the respondents. The said doctor also told that the position and the size of the left leg could not be restored and the deformities could not be cured satisfactorily without amputating the leg. More over if it is attempted to be done, a huge amount would have to be spent. It is submitted that his life has been spoiled due to the medical negligence on the part of the respondents. After surgery he has not gone for any work till this time. If the above mentioned surgery which was not necessitated was not performed he could have gone for any work and earn money for his livelihood. He has already spent more than Rs.5 lakhs in the respondents hospital and for the doctor aggrieved by this he had caused to issue a lawyer notice against the respondents claiming compensation for medical negligence and deficiency of service. In response to the said notice, the respondents have sent reply containing false and untenable pleadings by blaming him as a chronic smoker. He is not a chronic smoker and the allegation that the respondents have strictly warned to stop smoking etc. are not correct. The other allegation that he was walking by using walking aid is a concoted story developed for the purpose of the case by the respondents. Till the period of surgery from the respondent’s hospital he has never used any walking aid. Due to the deficiency of service and medical negligence he has suffered a lot which cannot be compensated by money only. Even his life has been spoiled due to the wrongful act on the part of the respondents. Both the respondents are liable jointly and severally for the loss sustained. Therefore filed this complaint claiming compensation from the respondents to the tune of Rs. 18 lakhs along with the cost of this proceedings.
The OPs denied the material averments made in the complaint relating to their medical negligence. They alleged that on 10/09/2014, the complainant was admitted in Kannur Medical College as per the reference of Dr. Muraleedharan. He was admitted in the unit 1 of Orthopedics department with alleged history of motor vehicle accident in 1987. At the time of his admission he was suffering from pus-discharging, wound on left leg which was diagnosed as infected non-union left tibia that required surgical management. As per the version of the complainant, he has already undergone several surgeries from various places but the ailment could not have been cured. In the reported state surgical management was highly essential so as to avoid further development of infection which may culminate to sepsis or gangrene leading to amputation of limbs. Hence immediately after admission, thoroughly assessing the existed situation of the complainant, it was informed to the complainant as well as the bystanders that , prolonged treatment coupled with repeated surgical intervention correction etc. are required to heal the wound as well as partial recovery. Within hours of admission it is noticed that the complainant is a chronic smoker which is detrimental in the progress of treatment. Hence the doctors have strictly warned the complainant not to smoke and also informed the bystanders to assure that the complainant would not be smoking. The severe pain was due to the severe infection on the left leg from which there was discharging of pus. Apart from the pus discharge, the complainant was having different and multiple scars, shortening of legs with pain. The complainant was walking by using walking aid for several years. The demand of complainant is the restoration of damaged leg into original position and to regain the ability to walk without walking aid. On verification, the doctors found that he can comparatively be brought back to the normalcy by ‘Ilizarov’ procedure. Due to the long span from accident and complex nature of the disease it was impossible to have 100% recovery. It was informed to the complainant and bystanders. The investigation is conducted to elect the most apt procedure for healing of the wound as well as to make the damaged leg as normal, up to possible extent. As stated above, ‘Ilizarov’ procedure was the normal adoptable procedure. Surgeries as well as rectification is the part of the same. It was properly communicated to the complainant and his relatives and only after getting the convinced consent of them, the mode of treatment was finalized. It was done in good faith in tune with the settled practice and procedure. The surgery was conducted on 22/09/2014 after consultation with physician and anesthesianist by a set of qualified orthopedic surgeons including 2nd respondent. The surgery was successful and after surgery the intravenous antibiotics were administered to heal the wound. As the procedure was Ilizarov technique, it involves implantation of pins and rings on legs and gradual adjusting like tightening, loosening of retch nuts as per the requirements. During the operation, the wound site was thoroughly cleaned; debrided, dead bones removed and ends were approximated by Ilizaraov fixation. It is the standard protocol for the infected non-union of tibia and deformed leg. After the procedure, wounds were healing well, sutures were removed and patient was discharged on 14/10/2014, with proper instruction for follow up regularly in OPD for pin track and wound dressing. Patient was walking with crutches. 32 days of hospitalization is required in the above situation and especially to abate the infection as well as to assure the union of bones. The contention of the complainant that the complainant has spent nearly an amount of Rs.90000/- (Rupees ninety thousand only) is incorrect. Except the charges for implantation and consumables, respondent has not charged even a single pie from the complainant. On 25/10/2014, when the complainant came to OPD presented with infestation of ants on left leg. On verification, it was found that ants entered the operative wound and pin tracks irritating the surrounding skin. Healing wound again got damaged exposing the bone. It was happened due to the carelessness of the complainant. Immediately he was admitted, the wound was cleaned and washed. Advance treatment of open wound care vacuum assisted closure (VAC) was put. It was found that the removal of the dead bones is required as a part of treatment. Hence subsequent debridement was done on 19/11/2014, after obtaining the consent of the complainant. Drilling, cutting and removal of infected bone was absolutely; necessary for the wound closure. The contention that so many surgeries without the consent of the complainant were performed on the left leg resulted in the shortening of the left leg is absolutely incorrect and it is denied by Ops. The lengthening of the shortened limb after removing infected and dead bone was tried as per standard protocol on 15/12/2014. “Mobility of the left foot has also been seriously affected by the wrong advice and the surgery conducted by respondent No.2” is incorrect and denied by OP2. There was deformed leg at the time of his admission. Muscle wasting and the scars partially masked by the severe deformity. Moreover there was pus discharging wound also with severe bone infection. After the surgery the shape of the leg is changed comfortable and favorably due to the correction of deformity and partial healing of severe bone infection. Ilizarov was removed on 05/05/2015 and POP cast applied later followed by proper foot wear (shoes with belt). After using the foot wear, the treatment has not ended but he did not turned up for follow up though he was offered all the medical care. All steps were followed systematically and performed by qualified orthopedic surgeons properly with appropriate decision during surgery. Never an unwanted or wrong surgery was advised or performed. The complainant came to the hospital with walking aid which he has been using for more than 24 years. On termination of treatment, from hospital he was advised to walk by using proper foot wear. There is absolutely no deficiency of service from the side of the respondent. On the other hand the complainant was provided with most sophisticated treatment in the most competitive rate and which has given a good result and improved the ailments of the complainant for certain possible extent. Hence there is no question of giving compensation to the complainant. So prayed for the dismissal of the complaint.
Both parties adduced evidence including affidavit and medical records. From the side of complainant along with affidavit 12 documents including medical records and medical bills were produced. Complainant was examined as Pw1 and Exts.A1 to Exts.A12 were marked. Disability certificate submitted by the Medical Board of District Hospital Kannur was marked as Ext.X1. On the side of the OP, OP2 doctor filed chief affidavit and was examined as Dw1, on the side of the OP the case sheet 3 in numbers of OP1 hospital pertaining to the treatment of complainant were marked as Ext.B1 series. One of the members in the Medical Board Dr. Mahesh was examined as Dw2.
After that we have heard Learned counsels for the parties. We have perused the relevant Medical records as well as the medical literature produced by the learned counsels for the OPs. The fact that complainant (C P Ismail) met with an accident on 1987 is not in dispute. As such sustained injuries on his left leg.
At the time of arguments before us, the Learned counsel for the complainant stated that on 05/09/2014 the complainant felt pain on his left leg and visited Dr Muraleedharan and after that he was admitted in the OP hospital on 09/09/2014 and was under treatment of Dr. Muraleedharan. Within few days (about 8 days) patient was recovered from pain and was about to discharge from the OP1 hospital. Then a team of doctors in that hospital including OP2 observed that his leg was half an inch shorter than the other leg and was having a bent also and OP2 compelled the complainant to undergo a surgery which would normalized length and conducted the surgery on his left leg on 23/09/2014. But pain on the left leg aggravated to a maximum hence he was compelled again to admit on the hospital. The learned counsel stated that then OP No.2 was done some more surgeries on the leg by drilling the bone and also the bone below the knee also was cut which resulted on shortening the leg for 3 inches. It is also stated that all those surgeries were done without getting consent of the complainant or his relatives and also stated that as a result of conducting many surgeries on his leg, the shape and size of the complainants leg has been changed to a great extend deformities has developed on the leg, he cannot walk properly by putting the foot on the floor. The learned counsel argued that by the wrong advice and unwanted surgery like ‘Ilizarov’ Procedure adopted by the OP2 doctor on the aged person like complainant have 65 years, adversely resulted the mobility of the left foot of him. So he had not gone for any work. It is also stated that for the treatment he had to spent more than of 5 lakh in the OP hospital.
The learned counsel for the OP stated that there had been no negligence on the part of the OP in performing surgery up on the complainant. In fact problem arose only because he did not follow the medical advice and was due to carelessness of the complainant. That is why ants entered into the operative wound and pin tracks irritating the surround skin. So the healing wound again got damaged exposing the bone. Reoffering to the medical literature that the best method of treatment in such case was adopted by OP2 doctor. The learned counsel stated that at the time complainants admission on 10/09/2014 he was suffering from pus discharging, wound on left leg which was diagnosed as non-union of left tibia that required surgical management. It is also stated that from the history of patient, it was revealed that he has already undergone several surgeries from various places but the ailment could not have been cured. Apart from pus discharge, the complainant have different and multiple scars, shortening of legs with pain due to severe infection on the left leg. It is also stated that complainant was walking by using walking aid for several years. The learned counsel argued that after thoroughly assessing the existing condition of the complainant and considering the demand of complainant to restore the damaged leg to original position, OP2 doctor opted to conduct ‘Ilizarov’ proceedure. It is stated that before conducting ‘Ilizarov’ procedure consent statement was received from the patient. According to OP ‘Ilizarov’ fixation is the standard protocol for the infected non-union tibia and deformed leg. It is further claimed that after the procedure, wounds cover healing well, sutures were removed and the patient were discharged on 14/10/2014 with proper instruction for follow up regularly OPD for pin track and wound dressing. The patient was walking with crutches. According to OP2 further surgeries had to be performed because of the carelessness and negligence on the part of the complainant. Due to the carelessness of the complainant ants entered the operative wound and pin tracks irritating the surrounding skin and so the healing wound again get damaged exposing the bone. In reply to the arguments of the OP regarding ‘Ilizarov’ procedure, reason for further surgery etc, the learned counsel of the complainant stated that with the knowledge that this ‘Ilizarov’ procedure was impossible to have 100% recovery, then why OP2 conducted the said surgery in the aged person like complainant and so ‘Ilizarov’ surgery could not be conducted. According to the complainant due to the said surgery and the subsequent surgeries shape and size of his leg has been changed to a great extent and deformities has developed on the leg. So he could not walk properly by putting the foot on the floor. In the light of these facts the issue raised whether the change in shape and size and deformities in the left leg of the complainant was the result of gross-negligence committed by the OP2 doctor and as such he could not walk properly and could not do any work?
The inpatient record of complainant of OP1 hospital shows that on 09/09/2014 Dr. M K Muraleedharan (complainant has no complaint about the treatment given by Dr. Muraleedharan) recorded that infected Non-union (L) tibia (1st page of Ext.B1). 3rd page reveals that patient was admitted on 10/09/2014 with a complaints of “pus oozing from surgery site - Many years, pain over the wound 8 days. It can be noted that on 05/09/2014 pus culture and sensitivity report shows Heavy growth of staphylo coceus aureus. (Ext. A8). The said doctor given an advice that “the patient needs partial fibulectomy and illizarov fixation and Referred to MCH Calicut to See Dr.Jeejesh”. These medical records show that at the 1st consultation time to Dr. Muraleedharan itself, the patient suffered with complaints of pus oozing from the surgical site many years pain over the wound 8 days. Further the pus culture reveals that Heavy growth of Staphylococens aurens. The said doctor also suggested Illizarov fixation. The diagnosis seen in the Discharge summary dated 17/09/2014(page3) Infected Non union L tibia. Further in page 9 – Final Diagnosis on 10/09/2014 was “Infected Non-union (L) tibia and deformity”. In page 11, said doctor recorded about History of illness ie “Past surgeries 25 year back and now presented with h/o pus oozing from (L) leg for past many years on and off. He was treated at Mangolore following RTA several times. Patient was treated with injections and dressing outside many times advised surgery in Mangalore Yenapoya College”. Doctor collected this information from the complainant himself, which reveals that pus oozing from (L) leg for past many years on and of and taken injections and done dressings out side many times. Also reveals that in Yenopoya college also advised surgery. Complainant in his cross-examination deposed that he has no complaint about Dr. Muraleedharan. Hence from the above facts the averment of complainant that his injuries sustainted on his left leg on 1987 were healed long back and on 05/09/2014 only pain was developed on his left leg and Dr. Muraleedharan treated him, within few days he was recovered from the pain on the leg and was about to discharge from the hospital cannot be believed. The doctor intended to send the patient for surgical treatment like partial fibulectomy and illizarov fixation.
On perusal of Ext. A5 Discharge summary of Yenepoya Medical college Hospital shows the admission date as 01/08/2009 and date of discharge as 15/08/2009. Final diagnosis as Infected Non-union left tibia with discharging sinus. There the complainant gave history of Discharging sinus and pain in left leg 20 years. He had a RTA 22 years back sustained fracture of (L) leg. H/o loss of consciousness for 4 days. Later he developed pain and discharging sinus and he underwent 2 operations (bone graffing). Discharging sinus still persisting. Inspection reveals ‘Deformity and discharging Sinus anterior aspect in middle 1/3rd of left leg surrounding skin is dry, scaly and surgical scars and multiple scars. Movement on Angle 0-5 digree. This medical record of complainant himself further shows that the patient was walking with elbow crutches. It appears that the averment of complainant that the wrong advise and unwanted surgery conducted by OP2 resulted the shape and size of left leg has been changed to a great extent and deformities has developed on the leg, he cannot walk properly by putting the foot on the floor, more over the mobility of the left foot also has been seriously effected also cannot be accepted. The next point to be noted in Ext. A5 Medical record that at the discharge time complainant was adviced external fixation or LRS but the patient was not willing. This statement reveals that the treating doctor of that hospital also suggested illizarov procedure but the complainant had not followed the Medical advice.
The next question whether 2nd OP adoted ILlizarove Surgery on the complainant can be blamed? From the Medical record available before us revealed that when OP2 examined the complainant the patient suffered complaints of pain, deformity, shortening of left leg, pus discharging from (L) leg more for the past few months. The Leterature produced by the Learned counsel of OP about “:The Benefits and Risks of The Ilizarov Technique For Limb Reconsturction” as follows. “The patient with fractures which failed to heal (non-union) or healed incorrectly (mal-union) had little treatment available to them, and patients who required surgical removal of infected bone (osteomyelotis) or cancerous bone often had no choice but to have anamputation of the affected limb. The treatment of such orthopardic conditions was revolutionized by Dr. Gavrill Ilizarov’s method of surgery. Advantages of the Ilizarov method explaines that “The Ilizarov method carries many advantages over other methods for limb reconstruction. One of the main advantages of distraction osteogenesis is that it is effective in mature as well as young bone, which means treatment using this principle is not Limited to children but works equally as well inadult. Application of the Ilizarov method explains as follows. TheIlizarov technique can be used to correct deformities to bone. It can give the appearance that the limb is shorter, causing the patient to limp. Further other applications of the Illizarov method include. Osteomyelitis and infected non-nuious. In a patient with osteomyelitis, removed of the infected bone and tissue is a necessary surgical procedure. It large section os bone have to be removed, either a bone graft or a bone transport procedure is necessary, if the patient is to avoid the need for amputation of the limb. This method can be adopted for the correction of bone deformity.
Complications of the use of the Ilizarove bone transport method include recurrence of infection, often due to inadequate debridement of the infected bone, failure of the bone segment to join to the docking site, or delayed consolidation of the bone, pin track infections, cellutiitis and oedema.
Commonly Ilizarov method offers an alternative to amputation.
In the present case it is to be noticed from Medical records that from 1987 onwards the infected non-union left tibia with discharge Sinus with deformity was present. Ext. A5 Discharge summery and Ext. B1 1st part show that pus oozing from (L) leg for past many years on and off. Though complainant was treated with injections and dressing outside, many times adviced surgery in Mangalore Yenepoya Medical college, his left leg deformity and pus oozing persists when he was examined by OP2. The medical literature produced by the OP goes to show that the Illizarov method adopted by OP2 doctor in such a condition is an alternative treatment to amputation. Hence we cannot blame OP2 by adopting Illizarov procedure on the complainant.
According to OP2 the subsequent surgeries were done due to infestation of ants on left leg. This was happened due to the carelessness of complainant. Testimony of Pw1 also revealed the fact of infestation of ants on left let. Ext.A8 (j) dated 10/10/2014 shows that pus investigation culture result. No growth in culture. Ext.A8(k) dated 25/10/2014 pus culture result as heavy growth of bacteria. Medical records show that advanced treatment of open wound care vacuum assisted closure (VAC) was put. Also done removal of dead bones. So Drilling cutting and removal of infected bone was made for the wound closure. The Medical records reveal that each time consent of patient was obtained. OP2 stated that the lengethening of the shortened limp after removing infected and dead bone was tried as per standard protocol on 15/12/2014 and never an unwanted or wrong surgery was performed. Medical records further show that on 05/05/2015 Ilizarov was removed and POP cast applied later followed by proper footwear.
Ext.A12 the Discharge Summary of Yenepoya Medical College Hospital shows C/o pain and discharging sinus on left leg since 6 months. The doctor opinioned that surgical Management for the complaint is not beneficiary, patient is being discharged advising symptomatic treatment.
Ext. X1 Medical Board, District Hospital, Kannur found that the patient had angulation of left leg and infection for which he had undergone multiple surgeries, Ilizarov fixation. Recent X-ray tibia united. The patient has permanent physical disability of 27% present to whole body shortening 3 inches in the left leg.
One of the doctor in the medical Board was examined as Dw2. Dw2 deposed that I cannot say that the disability stated in Ext.X1 is caused due to medical negligence and also stated that there was no infection and tibia was united.
There is no material evidence adduced by the complainant to prove that he had treated any other hospital after the treatment of OP2 doctor. In Ext. A12 no surgical treatment done adviced symptomatic treatment. Ext.A7 series show that the amount spent by complainant for implantation and medicines only. Further in case records the category of patient was “trust”. Here the complaint has not examined any expert doctors to prove that the Ops had committed medical negligence.
The learned counsel of complainant produced a decision of Hon’ble Supreme Court Kishan Rao V Nikhil Super speciality Hospital and another in which. It is held by Hon’ble Supreme Court that only in appropriate cases examination of expert may be made and in case where negligence is evident, the principle of res-Ipso Ioquitur operates.
Here the question arised is whether there is any medical negligence or deficiency in service in treating the complainant. The principle governing the liability of a medical professional has been discussed by the Hon’ble Supreme Court in case “Jacob Mathew Vs. state of Punjab(2005) 6SCC1. The relevant observations which have a bearing for the decision of the case read as
“Negligence is a breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinary regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. A simple lack of care, an error of judgments or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow to that practice or procedure which the accused followed.
Further it was held that a doctor is not liable to be held negligent simply on the ground that the complainant did not fully recover from the fracture suffered by him. Simply because the complainant had not favorably. Responded to the treatment given by the OP doctor, he cannot be held liable for medical negligence by applying the doctrine of res IPsa loquitur.
In the instant case there is nothing on medical record to show that the OP doctor had done anything wrong in treating the complainant. Here, in Ext.A5, and Dr. Muraleedharan at the time of admission in the OP1 hospital adviced the complainant to do Ilizareov procedure. OP2 doctor also had done that procedure to the patient. There is no medical evidence to show that the Ilizarov procedure and subsequent operations done by OP doctor were unwanted surgeries. In Ext.A5 complainant gave history of his treatment that within that day he had under gone 2 operations (bone grafting). Ext.X1 shows that tibia of his left leg was united one of the allegation of complainant is that as a result of number of surgeries conducted by OP2, his length of left leg became 3 inches shortened than right leg. Further normally Illizarove surgery and subsequent carticotomy surgery would shortened length because as per medical record the dead cell were cut and removed from the infected areas.
From the above facts and circumstance it is evident that OP doctor had performed surgical procedures with an intention to avoid the amputation of the left leg of the complainant and the complainant failed to substantiate the allegation that there is medical negligence or deficiency in service on the part of OP2 on treating him.
In the result complaint fails and hence it is dismissed. No order as to cost.
Exhibits
A1 - Lawyer notice dated 11/03/2016
A2 - Lawyer notice dated 11/03/2016
A3 - Lawyer notice dated 11/03/2016
A4 - Lawyer notice dated 11/03/2016
A5 - Lawyer notice dated 11/03/2016
A6 - Lawyer notice dated 11/03/2016
A7 - Lawyer notice dated 11/03/2016
A8 - Lawyer notice dated 11/03/2016
A9(Series) - Out patient records (4 in numbers)
A10 - Prescription Tejaswini Hospital dated 11/04/2016
A11 - X-ray
A12 - Discharged Summery of Yenapoya Medical College dated 25/01/2016
X1 - Medical Board Certificate (marked subject proof)
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Senior Superintendent
