SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of Consumer Protection Act 1986 for getting an order directing opposite parties to pay Rs.2,00,000/- to him towards medical expenses incurred to him, Rs.50,000/- towards loss of earnings during the period of treatment, Rs.50,000/- towards travelling expenses and Rs.2,00,000/- as compensation alleging medical negligence on the part of 2nd OP.
The facts of the case, in brief, are that the complainant is a toddy tapper. On 25/3/2013 while he was working on the coconut tree accidently a piece of coconut wood is pierced on his left arm and caused injury his friends took him to 1st Op hospital, and the 2nd OP conducted operation to the left arm of the complainant and stitched his wound and discharged him on the next day. Due to the severe pain, ten days after discharge, the complainant approached 2nd OP and he said that it is the usual outcome of the operation. The complainant could not move his arm due to severe pain he approached orthopedic surgeon in the 1st OP hospital, Naveen C Balan, he advised the complainant to take X-ray and scanning of left arm. Both the x-ray and scan report it is found that a foreign body is inside his arm. Thereafter Dr.Naveen C Balan advised a further surgery to the complainant after blocking the vein of left arm. Then the petitioner went to Tejasvini Hospital and Dr.Ajithkumar conducted surgery on the left arm of the complainant and taken out 5cm length piece of coconut wood from his left arm. Because of the medical negligence on the part of 2nd OP, complainant sustained severe pain and long hospitalization, permanent disability, loss of income, loss of employment, loss of money and mental pain and sufferings. Therefore a notice was issued to OPs but none of them responded. Hence this complaint.
After receiving notice, both OPs entered appearance through counsel and filed separate version.
1st OP admitted that the complainant was treated in their hospital following the injuries sustained by him in an accident. But the allegations that there was negligence on the part of 2nd OP doctor in treating the complainant and because of the negligence, complainant suffered severe pain and long hospitalization, permanent disability, loss of income, loss of employment, loss of money and mental pain and sufferings etc are absolutely incorrect and hence denied. 2nd OP and the other staff of the hospital exercised due care and diligence in treating the complainant. The doctors of 1st OP are exercising maximum care and expertise in treating the patients and they are giving no room for any complaint from elsewhere. 1st OP could understand that in treating the complainant also the concerned doctor exercised utmost care and diligence and there was no negligence or defective service on the part of the doctor. It is submitted that there was no willful latches or negligence from the part of 2nd OP or any other staff of the 1st OP. Hence the OPs are not liable to compensate the complainant.
Contention of 2nd OP is that the complainant came to the out patient dept. in the 1st OP hospital on 25/3/2013 and consulted the 2nd OP with an abrasion over posterior aspect of left arm. The 2nd OP examined the patient and conducted wound exploration but no foreign body could be found out. The complainant was informed about the exploration findings and explained the need for USG examination to rule out the suspicion of impacted foreign body as per history of sustaining injury and the need for further exploration as well as incision and drainage if required. X-ray examination would not be fruitful or detecting vegetative foreign body like wooden piece and hence it was not advised. Since sinologist was not available at that time it was decided in discussion with the complainant to conduct USH examination if symptoms persist. Hence under all aseptic care and precautions he thoroughly washed the wound and minimal debridement was done and sutured the wound and prescribed medicines. The complainant was also advised for review. Further contended that the complainant reported with oedema of the left forearm after two days and the 2nd OP advised admission for detailed evaluation after USG examination but the complainant was not wiling for the same. 2nd OP was advised medicines and asked to report with USG but he did not turn up with USG report instead he reported for follow up review after 5 days and on examination oedema reduced and wound appeared healthy. He was symptomatically better except for mild pain on lifting upper limb. Later on 9/4/13 sutures were removed and on all these occasions the complainant was not following the advice for USG examination to rule out the possibility of impacted foreign body. As per clinical indications of healthy wound and settling of oedema, there was no reasonable circumstance to conduct another wound explorations surgical intervention without USG examination. The complainant did not come up to consult 2nd OP with USG report of left arm in spite of specific instruction and hence the 2nd OP was precluded from proceeding with exploration based on USG report suggestive of impacted site of foreign body, depth from skin surface etc. 2nd OP further submitted that the complainant underwent USG examination at the 1st OP hospital on 17/4/2013 but he did not turn up to consult the 2nd OP with the report. Further in utter disregard to the treatment advice of Dr.Naveen C Balan attached to the 1st OP hospital for admission for removal of foreign body and drainage of pus, the complainant rushed to another hospital and underwent the same treatment.2nd OP denied all the allegations of the complainant against him It is submitted that the 2nd OP had exercised reasonable skill and care and treated the complainant in strict regard to accepted medical practice and he is having qualification of MBBS,MS(General Surgery) and working as General surgeon with a experience of 2 ½ years. There was no negligence or deficiency in service and the complainant is not entitled to get any relief. Hence prayed for the dismissal of the complaint .
At the evidence stage complainant has filed his chief affidavit and was examined as PW1. Exts.A1 to A17 were marked . Dr.Naveen C.Balan Orthopedic Surgeon working at 1st OP hospital to him the complainant was consulted on 15/4/2013 ,has been examined as a witness on the side of complainant. Both witness were subjected to cross examination for the OPs. On the side of OPs 2nd OP has filed chief affidavit and was examined as DW1. The case record of the patient at TejasviniHospital, Mangalore , from where he availed subsequent treatment has been summoned and marked as Ext.X1.
After that the learned counsels of complainant and OPs made oral arguments and also filed their written argument notes with judgment of higher commissions.
Learned counsel for the complainant submitted that the injury caused on his left arm was examined by 2nd OP as a General Surgeon at 1st OP hospital and conducted operation and stitched his wound and discharged him on the next day and advised to come after 10 days for suture removal. But 4th day after operation on 29/3/2013, he went to 2nd OP due to Eedema upto elbow and pain(Ext.A2) Then 2nd OP prescribed tablets for 3 days and directs him visit if pain persists. Because of the dosage of antibiotic tables given by 2nd OP to the complainant edema reduced complainant visited 2nd OP on 4/4/2013. On that day 2nd OP perused the wound and stated healthy and prescribed tablets for 5 days. After 5 days complainant visited 2nd OP for review, he removed the sutures and some of them are left and direct the complainant come for review on 15/4/2013 and tablets are prescribed. After the removal of sutures the complainant feels pain and reduced flexion of his left arm. So on 15/4/13, the complainant visited the orthopedic surgeon of 1st OP, Dr.Naveen C Balan, after examining the said doctor prescribed 2 days medicines and advised that , if the complaint persists, USG of L arm should be taken and direction given to him to visit him on 17/4/2013 . Thereafter the complaint persists, the complainant taken USG of his left arm and visited Ortho surgeon. After examining the complainant and USG report doctor says that a wooden piece length and width about 8x3 cm is lying in the left arm of the complainant at a depth of 1.4 cm. It is seen in the triceps f mussels. Dr.Naveen C Balan advised him to attend an operation for removal of foreign body by creating drainage of pus and manipulation of the elbow and block a nerve. The complainant lost his faith in treatment of 1st OP hospital, because he had under gone 23 days treatment there under 2nd OP. So he approached the Tejasvini Hospital Mangalore and admitted there on 22/4/2013 and the operation of his left arm conducted there on 23/4/2013. The doctors of said hospital removed foreign body of wooden pieces 2 heads of 5x1 cm and a small 1cm wooden piece removed from his left arm. Complainant further alleged that 2nd OP conducted operation to the complainant’s left arm without proper care caution and committed gross negligence at the time of operation done on 25/3/2013. He operated the left arm of the complainant without locating the foreign body. He advised x-ray, but he has not advised USG report . If he advised USG report he can find the vegetative foreign body and he can remove it. Due to the negligence of 2nd OP, complainant suffered 23 days continues pain, loss 30% loss of flexion of his left arm and he lost 25 days employment and huge amount as hospital expenses and travelling expenses.
Learned counsel for OPs on the other hand stated that there was no medical negligence on the part of the OPs. Further submitted that 2nd OP examined the patient and conducted wound exploration but no foreign body could be found out. The complainant was informed about the exploration findings and explained the need for USG examination to rule out the suspicion of impacted foreign body as per history of sustaining injury and the need for further exploration as well as incision and drainage if required. Hence under all aseptic care and precautions he thoroughly washed the wound and minimal debridement was done and sutured the wound and prescribed medicines. The complainant reported with oedema of the left forearm after two days and the 2nd OP advised admission for detailed evaluation after USG examination but the complainant was not wiling for the same. It is evident from Ext.A2 document. 2nd OP was advised medicines and asked to report with USG but he did not turn up with USG report instead he reported for follow up review after 5 days and on examination oedema reduced and wound appeared healthy, It is evident from Ext.A3 document. He was symptomatically better except for mild pain on lifting upper limb. Later on 9/4/13 sutures were removed and on all these occasions the complainant was not following the advice for USG examination to rule out the possibility of impacted foreign body. As per clinical indications of healthy wound and setting of oedema, there was no reasonable circumstance to conduct another wound explorations surgical intervention without USG examination. The complainant did not come up to consult 2nd OP with USG report of left arm in spite of specific instruction. OP further submitted that the sequence of events of treatment of the complainant at first OP shows that the complainant had willfully acted against proper medical advice solely for raising an illegal claim against 2nd OP. Further against the treatment advice of Dr.Naveen C Balan attached to the 1st OP hospital for admission for removal of foreign body and drainage of pus as per Ext.A4 , the complainant rushed to another hospital and underwent the same treatment. It is submitted that the 2nd OP had exercised reasonable skill and care and treated the complainant in strict regard to accepted medical practice and there was no negligence or deficiency in service.
We have considered the contentions of the learned counsels for both parties and have carefully gone through the evidence on record. The fact that complainant visited the 2nd OP at 1st OP hospital for 3 times and Dr.Naveen C Balan, Ortho Pediatrician on 4th times for follow up with a history of Eedema upto elbow pain and unable to flex(L) elbow. It is also seen that all the time 2nd OP as well as Dr.Naveen.C.Balan prescribed antibiotic tablets and pain killers. It is also a fact that only in Ext.A4 prescription given by Dr.Naveen C.Balan on 15/4/2013 prescribed to take USG(L)arm. Though 2nd OP vehemently contended that from the initial date of his treatment he had advised the patient to take USG for detecting presence of foreign body in the wound, in any one of his prescription does not show such an advise given to patient. Dr.Naveen.C.Balan(PW2) deposed that in page(2) എന്ർറെ നിർദ്ദേശപ്രകാരമുള്ള scan report ആണ് എന്നെ ഇപ്പോൾ കാണിച്ചത് (Ext.A5) ആ scan report പ്രകാരം ഒരു foreign body ഉള്ളതായി മനസ്സിലാക്കിയിരുന്നു. Further PW2 doctor deposed that in page 2 last ’ USG scanning Medical practitioner ന്ർറെ അടിസ്ഥാനത്തിൽ മാത്രമേ ചെയ്യുകയുള്ളൂ. കൃത്യമായി prescription മുഖേനയല്ലാതെ, വാക്കാൽ USG ചെയ്യാൻ പറഞ്ഞുവിടുന്ന രീതി Thaiparamba Co-op Hospital (OP) ഇല്ല. അങ്ങനെ ചെയ്തുകൊടുക്കുകയുമില്ല “ There is no reason to disbelieve his above statement. From the said evidence, the 2nd OP’s version that he explained the need for USG examination and asked to report with USG report but he did not turn up with USG report at the time of follow up cannot be believed as a real fact. PW1 during examination denied the said question of OP’s counsel. In page 3 last scan(USG) ചെയ്യാൻ doctor എന്നോട് ആവശ്യപ്പെട്ടു എന്ന് പറയുന്നത് ശരിയല്ല . Further OP’s contention is that he had not conducted operation on the injury, instead of that he had done only wound exploration. The said fact also denied by the complainant. Here from the available records, Ext.X1 the original case record of the patient at Tejasvini Hospital Mangalore produced before the commission as per the direction. On perusal of Ext.X1, it is seen that in page No.3” patient sustained injury to (L) arm on 25/3/2013 at his work place with a wooden object. Following this patient presented to a local hospital with c/o ‘operated’ upon 25/3/2013. The sutures were remove d on 9/4/2013, but ‘2 sutures were left behind’. Patient now has pain and restricted flexion of left arm. Patient has come with c/o pain in the left arm adjacent to the site of operation for foreign body . An ultrasound done on the arm revealed a foreign body in site and the pt. is now admitted for foreign body removal. Further in page 9 procedure portion shows that ‘blood stained whitish discharge drained, us swab taken, drained and 5cmx1 an wooden piece removed with pus drained.
Thus the case history and operation notes produced by Tejasvini Hospital where the 2nd surgery took place and taken a piece of wood 5cmx1cm from the injury.
From the above facts the version of 2nd OP that he had not done surgical procedure and as per the clinical indications wound became healthy and setting of Oedema, no reasonable circumstance to conduct another wood explorations and surgical intervention also cannot be believed. 2nd OP claimed that in each follow up he advised to take USG examination, the said statement itself presume that there was something wrong in the clinical features of wound. Moreover Ext.A4 prescription of Oorthopedician dtd.15/4/2013 clearly noted that? Hematoma(L) arm, Unable to flex(L) elbow. Hence from Exts.A4&Ext.X1 the 2nd OP’ version that he had exercised reasonable skill and care and treated the complainant in strict regard to accepted medical practice and there was no negligence or deficiency in service on his part cannot be taken into account. From Ext.X1 it is clearly revealed that even in removing suture, two sutures were left behind.
Though the patient was not willing for admission as claimed by 2nd OP(Ext.A2) dtd.29/3/2013) it is seen that the patient again approached 2nd OP after two times on 3/4/2013 and again on 9/4/2013. We can see that in each time 2nd OP changed the medicines prescribed. That also means there was no relief felt to the patient from the treatment of 2nd OP. That may be the reason he approached the orthopedician Dr.Naveen C.Balan on the next follow up date. Further on his advise he had taken USG examination and revealed that there was foreign body present inside wood. We can see that the patient had taken USG examination immediately on the advise given by Dr.Naveen C.Balan, which shows the nature of the patient ie, if the 2nd OP advised to take USG examination, the patient would have done it.
Further 2nd OP contended that the patient went to another hospital against the advise of PW2 for further management. For that complainant submitted that he had lost the faith in the treatment received from 1st OP hospital, because he had undergone 23 days treatment there under 2nd OP. So he approached the Tejasvini Hospital at Mangalore for further treatment. From the sequence of treatment availed by complainant, the report of USG examination and advise of PW2 Orthopedician that need for removal of foreign body + drainage of pus+ manipulation of elbow under general anaesthesia, we cannot blame the complainant in approaching a higher centre for further management. We can reveal from Ext.X1 case record of higher centre Tejasvini Hospital that he was admitted on 22/4/2013 and discharged on 24/4/2013 after removal of foreign body without any complication. Hence though PW2 deposed that 2nd OP had rendered proper treatment to the patient, the evidence and medical records shows that there was medical negligence and deficiency in service on the part of 2nd OP in providing treatment to the complainant. Since 2nd OP was a doctor working at 1st OP hospital, there is vicarious liability on 1st OP hospital also. So both OPs are held liable to compensate the complainant for the mental and physical agony happened to the complainant. Ext.X1 shows that ‘No deformity’ present on the patient. Here the learned counsel of OPs submitted a judgement of Hon’ble SCDRC, Trivandrum, Dr.Jyothi Vivek & Ors vs. Pradeep & Ors in which the Hon’ble State commission, held that as a matter of fact the patient was also not co-operative, he did not turn as advised and was changing doctors and hospital, there is no negligence on the part of OPs.
Here the circumstance is different. Exts.A1 to A4 shows that he had came to 2nd OP for 3 days for follow up and on the 4th time the Orthopaedic surgeon of the same hospital advised to take USG examination and he obeyed the advise and then found foreign body inside the wound. Moreover the patient had availed treatment of 2nd OP doctor from 25/3/2013 to 9/4/2013 but he had not given written instruction to take USG examination to rule out the foreign body in side the wound. Further he had availed treatment from 1st OP hospital till 21/4/2013. Since he availed such period of treatment, there was tenderness +ROM restricted at the elbow join with restricted flexion and pain on flexion. Unable to flex elbow completely. Then he changed of doctors and hospital.
Hence from the above facts, there cannot be found that there was no medical negligence and no deficiency in service on the part of OPs in this instant case. So the judgment produced from the OP’s side cannot be taken into account.
We therefore hold that there is medical negligence and deficiency in service on the part of OPs. Here the medical bills produced by complainant Ext.A13 series shows that he had spent Rs.6526/- at Tejasvini Hospital for treatment. There is no evidence produced to show that he was getting Rs.21579/- per month as monthly income prior to the incident.
Considering the pain and suffering mental physical agony, treatment expense and travelling expense, we are inclined to allow Rs.1,50,000/- as compensation.
In the result, complaint is allowed in part. Opposite parties 1&2 are directed to pay Rs.1,50,000/- towards compensation to the complainant together with Rs.15,000/- towards cost of the proceedings within one month from the date of receipt of this order. Opposite parties 1&2 are jointly and severally liable to pay the awarded amount . Failing which , Rs.150,000/- carries 9% interest from the date of order till realization . Complainant is at liberty to file execution application against opposite parties 1&2 for realization of the awarded amount as per the provision of Consumer Protection Act 2019.
Exts:
A1 to A4 –OP cards dtd.25/3/13,29/3/13,3/4/13,15/4/13
A5-Ultrasonogram
A6-discharge summary
A7-lawyer notice
A8&A9-Postal receipt
A10&A11- Ad card
A12- Medical certificate
A13 series-Medical bills(5 in Nos.)
A114- Review
A15&A16 -Reply notice
A17-wage rate table
X1- Case sheet from Tejasvini Hospital Mangalore
PW1-E.P.Prakashan- Complainant
PW2- Dr.Naveen.C.Balan-witness of PW1
DW1-Dr.Sathish-V.S- 2nd OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
