Karnataka

Bidar

CC/41/2015

Baswaraj Swamy S/o Omkar Swamy - Complainant(s)

Versus

The New Apex Hospital Superintendent - Opp.Party(s)

P M DESHPANDE

08 Aug 2017

ORDER

  ::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                  C.C.No. 41/2015

 

                                                                                       Date of filing : 15/05/2015

 

                                                                                 Date of disposal : 08.08.2017

 

 

P R E S E N T:-             (1) Shri. Jagannath Prasad Udgata,

                                                                              B.A., LL.B.,

                                                                                                   President.

    

                                        (2) Shri. Shankrappa (Halipurgi),

                                                                               B.A.LL.B.,

                                                                                           Member.

                                   

                                   

COMPLAINANT/S:         Baswaraj Swamy, S/o Omkar Swamy,

                                              Age: major, Occ: Privte work,

                                              R/o village Chikhli, Tq.Aurad,

                                              Dist. Bidar.  

             

               

                                       (By Shri. P.M.Deshpande, Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-               1.  The New Apex Hospital,

                                                Superintendent, New housing Colony,

                                                   Ganesh Maidan,Bidar-585401.

 

                                           2.   Dr. Vijay Bilgunde,

                                                    Orthopedic Surgeon,

                                                    c/o New Apex Hospital,

     New Housing colony,

     Bidar.

                                                

   

                                              ( By Shri. Sanjay Kumar S. Patil, Advocate)

 

 

 

 

     

 

                                               

::   J U D G M E N T  : :

 

By Shri. Jagannath Prasad Udgata, President.

 

 

                       This is a complaint filed by the above named complainant U/sec. 12 of C.P.Act, against O.Ps alleging deficiency in service by the O.P.s.  The subject of the case is as under.

 

2.           Complainant is a native of village Chikli (J) Tq.Aurad,Dist.Bidar.  The complainant avers that on 19/11/2013 he fell down from motor cycle and was injured with fracture of right hip joint. The complainant had gone to the hospital of O.P.No.1, where the X-ray, scanning test and other tests were conducted in the hospital and he was admitted as in-patient.  On 22/11/2013, the O.P.2 has operated on the right leg of the complainant and fixed the plates, and he remained in the hospital up to 24/11/2013 and further as per advise of O.P.no.2 the complainant had taken all post operative treatments.  The O.P.no.2 hospital had charged Rs.50,000/- from the complainant further confirmed to the complainant that, he will be able to walk and he can use his right leg as a normal person within a period of three months from the date of operation.  But, despite three months and even continuing treatment with the O.P.no.2 the complainant was trapped under victimization and losing of health and normality.  Thereafter the complainant again approached to the O.P. hospital and it was said that one more operation is required, and O.P.no.2 advised the same would restore the normalcy.  But even after conducting this operation by O.P.no2 found that the complainants health  was not restored, nor improved and the treatment and medical services of the O.P.No.2 was found to be medical negligency and the complainant’s condition became worsened.

 

3.                The complainant had gone to Panacea Meridian hospital, at Beeramguda Kaman Ramchandrapuram Hyderabad and he had shown all the detailed papers of tests conducted, prescriptions, reports, medical record of O.P.  hospital and doctor, and the complainant handed over all the hospital records to Dr. Ravindra Patil, Orthopedic Surgeon of Panacea Meridian Hospital on 13/05/2014.  Panacea Meridan Hospital Doctor has taken all the X-ray test, reports of medical examination, record and physically  examined the complainant with clinical test etc. It was found that the complainant had acetabulum fracture with central protrusion of femoral head, with head destruction and posterior plating in situ and it was also found and noticed that there is a central defect of acetabulum with non union such of right hip joint bones and the plates fixed in the right leg of the complainant were of improper.  Wrong treatment of the O.P. hospital  and doctor and due to medical negligency of O.P. Doctor the complainant could not come back to normality and remained with severe pain, complications etc.  The re-operation of the complainant took place at Hyderabad and it was  said to be a must and for all of this, the expenses incurred was Rs. 1,62,000/- towards treatment and medicine charges, staying in-patient, and all other additional expenses of Rs.s1,00,000/- resulted.  So totally the expenses came to Rs. 2,62,000/- and in this regard the complainant approached to the O.P.no.1 and 2 for compensation payment of Rs.3,00,000/- but the O.Ps have not given any response, as promised earlier,  Due to deficiency in service on the part of the O.P.s hospital the complainant approached this Forum for compensation.

 

4.                On receipt of Court’s notice the O.Ps through their  advocate filed written version claiming therein, the complaint is misconceived both in law and facts and it is not maintainable.  In reply to para no.2 of the complaint the O.Ps deny the contention of the complainant that, the complaint on dated 19/11/2013 fell down from motor cycle and he was injured with facture of right hip joint, then the complainant has been to the O.P. hospital, where the X-ray scaning test and other tests were conducted in the hospital and admitted as in-patient.  Further on dated 22/11/2013 it is laso denied that, the O.P.no.w2 had operated the right leg of the complainant and fixed the plates, and remained in the hospital up to 24/11/2013 and denied that as per O.P.2s’ advise was continuously under treatment by O.P.no.2 with all post operative treatment  etc.

The O.Ps denied the para no.3 of the complaint regarding the O.Ps charges at  Rs.50,000/- to the complaint.   Further denied that it was said by O.P.n2 that the complainant will be able to walk and he can use his right leg as a normal person within the period of 3 months from the date of operation.  The O.Ps have not admitted the contention of the complainant in Para no.4 about his treatment and medical expenses etc and the complainant be put to strict roof of the same.   The O.Ps. specifically denied the contention of the complainant that, further the complainant had gone to Panacea Meridian hospital at Beeramguda Kaman Ramchandrapuram Hyderabad and he had shown all the detailed papers of test conducted,  prescription, reports,  medical record of O.Ps’ hospital doctor and further denied as not known that, the complainant handed over all the O.Ps’ hospital records to Dr. Ravindra Patil  Orthopedic Surgeon of Panacea Meridian Hospital on 13/05/2014, or the Panacea Hospital Doctor has taken all the X-ray test examination of medical examination, record and on physical examination of complainant had aceabulum fracture with central protrusion of femoral head, with head destruction and posterior plating in situ and it was also found and noticed that there is a central defect of acetabulum with non-union such of right hip joint bones and the plates fixed in the right leg of the complainant  was improper.   Further it is denied that, the O.Ps had given wrong treatment.  The O.Ps have not admitted and deny the contention of the complainant in Para no.5 about re-operation of the complainant took place at Hyderabad and for all of this the expenses incurred for Rs. 1,62,000/- towards treatment and medicine charges, staying as in-patient, and all other additional expense of Rs. 1,00,000/- resulted.  Further denied that, the totally the expenses came to Rs. 2,62,000/- and in this regard the complainant approached to the O.Ps No.1 and 2 for making compensation payment of Rs. 3,00,000/- and they further denied O.P.s never promised to complainant and not made any ‘unfair trade practice with bad services and further.  The O.Ps claim to be trained and senior Doctor and having good knowledge in the medical field.  The contention of complainant in Para no. 5 is denied and O.P.s claim that the allegations are false.

 

 

5.               Further O.Ps claims that the complainant i.e. any accident patient like Basawaraj was under shock on admission due to heavy impact form motor cycle accident leading to fracture.  He was initially reviewed by anaesthist Dr. Sangamesh and Physician Dr. Prabhushetty.  This itself shows the grievousness of the injury sustained by the complainant, and the operation was done after taking the high risk consent and also explained the consequence and the outcome on 22/11/2013.  So there is no way respondents are responsible for the consequence.  That further, it is specifically denied that there O.P.no.2 has not given the assurance of walking ability within a 3 months from the date of operation.  But the fact is that the complainant has not followed up for the treatment regularly as advised by the O.Ps.  Further as per complainants’ allegation the medical examination by Dr. Ravindra Patil found complainant had.

1- Acetabular fracture with central protrusion of femoral head:

Explanation: this in itself shows that Baswaraj has put weight and flexed [bending] on the operated lower limb leading to protrusion of femoral head.

2.- Posterior plate in situ.

Explanation: Plate in situ shows plate is intact and properly held

3.- Non-union of hip joint ( in 3 months union wont take place to say non union, it should require minimum 9 months for any union of severed bones) Non union is the complication of all ( any) fracture healing and depends on patient’ age, fracture complexity following instruction given by Doctor.

Explanation: early weight putting, bending, nature of injury in itself is the cause for non-union.

In all Basawaraj has not followed the advice of doctor like not to put weight on the lower limb, sitting cross legged, rotation at hip, bending the hip joint and regular follow up till the union of the bone.

Also Dr. Ravindra patil views that this is a complex fracture with Bicolumnar ace-tabular fracture and has developed the symptoms due to the early weight bearing and the nature of the fracture itself and no where Dr. Ravindra patil has mentioned that, the surgery done by  respondent is wrong and negligent.  Hence no medical negligence was caused to the complainant.

1. The author CAMPBELL’S OPERATIVE ORTHOPEDICS TWELTH EDITION states that:

Ace tabular roof fracture with post columns ext

Page 2789 explains the need of fixation with reconstruction plate and the same has been done

Page 2785 explains fracture through the wight-bearing dome treated with ORIF REGARDLESS OF HOW THEY MAY REDUCE IN TRACTION, THESE FRATURE HAVE A TENDENCY TO DISPLACE, AND LEADING TO INFERIOR RESULTS.

Page 2896 explains both column fractures have worse results.  And Posterior wall fractures result in post traumatic arthritis in 17% and a  more recent meta-analysis found 27% osteoarthritis.

 

6.          The O.Ps avered that at no point of time the O.Ps committed deficiency in service.  Looking at all the angle, the complainant has not made out any ground to prove the deficiency in service by the O.Ps.  He has not come up with the cause that how deficiency in service committed by the O.Ps.  In view of the above said facts and circumstances that the complainant himself is responsible that he has put weight and flexed [ bending] on the operated lower limb leading to protrusion of femoral head and the complainant filed the case only in order to harass the O.Ps. and it is only manipulation of facts by ex-patient to get money and harassment causing mental disturbances to the O.Ps.  Therefore the complaint may be dismissed with costs.

 

 

 

7.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

 

 

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

2. What order ?

 

 

 

8.          Our answers to the points stated above are as follows:-

 

1.  In the negative.
2. As per the final order, for the following:

 

 

 

 

 

 

:: REASONS ::

 

9.               Both parties are in agreement that, the complainant had sustained Right Bicolumnar Acetabulum fracture (Hip joint fracture) falling from a motor cycle on 19.11.2013 and got himself admitted in the O.P.No.1 hospital as inpatient.  After routine investigations, he was operated upon by the O.P.No2 on 22.11.2013, was retained in the hospital up to 24/11/2013 and thereafter was discharged.  At the time of discharge vide Ex.P3, he was advised bed rest for twenty months, active toe movements, non weight bearing till further advice, Not to squat and many other restrictions and was advised to come on 29.11.2014 for further analysis of the case.  He was also prescribed a series of drugs as is born out of Ex.P.3.  It is in the pleadings of the O.P. No.2 that, due to Acetabular roof fracture with part of Columnar Ext. He was Subjected to Acetabular Reconstruction ORIF.  From the X-ray plates submitted by the complainant it is seen that, two plates were implanted with screws, which the O.P.No.2 claims to be of standard procedure, was done to stabilize trauma, which could have been followed by a hip joint reconstruction procedure at a later stage.  The O.P.s further claim that, the surgery was conducted on 22.11.2013 after obtaining high risk consent and the consequences explained.  The O.P.No.2 further denies to have given any assurance that, the complainants’ walking capacity would be restored within three months.  Over and above, the O.P.s claim that, appropriate procedure was followed and no medical negligence had ever occurred.

 

10.                  Per contra, the complainnat alleges, even after paying a sum of Rs.50,000/- (for which no proof produced), his health condition was not restored, where fore he got himself admitted in Panacea Meridian Hospital, Hyderabad and handed over all the past medical records to the treating orthopadician Dr. Ravindra Reddy, and after due medical investigation, it was revealed to him that, he had acetabulum fracture with central protrusion of femoral head, with head destruction and posterior plating in situ and it was also found that, there was a central defect of acetabulum with non union of such of right hip joints and the plates fixed in the right leg of the complainant was improper.  The complainant claims because of improper surgery by O.P.No.2, he was made to suffer.

     

11.                     We have analysed the original X-ray plates vide Ex.P.13 and the implants contained in the packet.  We have also analyzed the later X-ray plates of Panacea Hospital, Hyderabad vide Ex.P.9 to Ex.P.11, and also an ultra sonography projection.  In the original X-ray plates vide Ex.P.13, the fixation of the implants are evident, which proves the appropriate line of treatment of the initial trauma management.  We then fixed our gazes on the contents of the discharge summary of Panacea Hospital.  Hyderabad vide Ex.P.16, in which the etiology/history has been described as noted herewith.  “Mr. Basawaraj had an acetabulum fracture in September 2013 for which surgery was done elsewhere.  He presented with complaints of severe pain in right hip with shortening and deformity and in ability to bear weight on right lower limb.  Examination revealed a shortened right lower limb by 2C.M.S. with severe pain on all movement of hip.  X-ray revealed acetabulum fracture with central protusion of femoral head destruction and posterior plating in situ.  CT with 3D reconstruction Confirmed Central defect of acetabulum with non union of posterior acetabulum”.

 

12.                   This observation confirms that, the procedure adopted by O.P.No.2 for stabilization of the trauma initially was intact.  But the central protusion of femoral head with head destruction apparently would be attributed to the non refrainment of the patient to indulge into weight bearing activities.  However, the specialist Dr. Ravindra Reddy has no where expressed that, the earlier procedure adopted by the opponents was in-appropriate or substandard.  Thereafter, said Panacea Hospital, Hyderabad had adopted the hip joint reconstruction procedure by cementing and other methods which are evident from their X-ray plates produced by the complainant.

 

13.                   In the course of trial, continuous submissions were made delaying the proceedings regarding amicable settlements.  The fact remains, the complainant has never appeared in the Court.  We are told, he is a Registered Medical practitioner by profession.  May not be an expert in human anatomy or physiology but undoubtedly more knowledgeable than a common man.  Excepting a bald allegation of medical negligence, he has led no proof before us to the effect that, there was a departure from standard medical practice by the opponents at any point of time.  Nothing was preventing him to examine Dr. Ravindra Reddy of Panacea Hospital, Hyderabad as an expert, but he had miserably failed to do so.

 

14.                   The concept of Burden of proof was unto him, as per the  
                     decisions of higher foras as described below:

           1.          Nizam’s Institure of Medical Science v/s Prasanth S.   
                     Dhavanka.

2009(2) CPJ 61: 2009 (3) CPR81:2009(6) S.C.C.1.
 Initial burden on the complainant- once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on the hospital or to the attending doctors.

             2.        The Hon’ble Apex Court as well in the case below has   
                         ruled:-

C.P. Sreekumar (Dr) v/s S.Ramanujam 2009(2) C.P.J.48: 2009(3) CPR 257: 2009(7) S.C.C.130.

“Obligatory on the part of the complainant to provide the   
 facta probanda as well as facta probantia.”

3.    Usashi Mukherice v/s Coal India Ltd. 2009(4)CPJ 56: 2010(1) CLT 136 (N.C)

“The onus to prove medical negligence lies largely on the claimant- the onus can be discharged by leading cogent evidence- a mere averment in a complaint which in denied by the other side, cannot be said to be evidence by which case of complainant can said to be proved- It is the                 obligation of the complainant to provide the facta probanda as well as facta probantia”.

4. S.C. Lahri v/s Pawan Kumar. 2008(1) CPR 364 (NC).

“Bypass heart surgery- Necessity of multiple heart surgery not denied in the case- Being a Doctor himself, appellant- complainant was competent to make proper choices of Hospitals and Doctor before undergoing surgery- It is not the case of the complainant that, the surgery was negligently performed or any complications arose during the performance of the surgery at administration of anaesthesia- It is the case of the complainant that, the surgery was not successful- Not disputed that, the treating surgeon had told the patient that, it is a high risk surgery and that, the consent was given by the complainant himself Judgement of the State commission dismissing the complaint upheld.

5. National Insurance Company Ltd. v/s Aabha Rani Srivastav and another.  2010(2) CPJ 219 : 2010(2) C.P.R. 263 (U.P).

Burden of proof- It is on the complainant – Unless this burden is successfully discharged a doctor cannot be held to be as negligent”.

Keeping all the above decisions of higher foras as parlance, we have no hesitation to hold that, the complainant has not proved his case with cogent evidence, the complaint is devoid of merit and answering point o.1 in the negative, we proceed to pass the following:-

 

 

:: ORDER ::

 

1. The complaint stands dismissed.  There would be no order as to costs or otherwise.

  

  

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 08^th day of August-2017)

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                            

 

 

 

Documents produced by the complainant

1. Ex.P.1- Medical bill of Saishiva Medical and General Stores 

             Date:25.11.2013.

2. Ex.P.2- Requisition slip (un signed).
3. Ex.P.3- Discharge summary of New Apex Hospital.
4. Ex.P.4- Biochemistry report date: 23.11.2013..     
5. Ex.P.5- Haematology report.
6. Ex.P.6- Report of Sonography of abdomen and Pelvis.
7. Ex.P.7- Sonography images.
8. Ex.P.8- Biochemistry report date: 24.11.2013.
9. Ex.P.9.to P.11—X-ray plates of Pancea Hospital, Hyderabad.
10. Ex.P.12- Sonography images date: 07.05.2014.

11.Ex.P.13- Investigation bill date: 07.05.2014.

12. Ex.P.14-5(Five) X-ray plates showing position of implants, 
                    removed implants in plastic cover.

13. Ex.P.15- Cardiology report date: 07.05.2014.

14. Ex.P.16- Discharge Summary of Panacea Hospital, Hyderabad,

                     together with post surgery X-ray image and clinical
                     investigation report in single foil.

15. Ex.P.17- Office copy of legal notice with two courier receipts.

 

 

Documents produced by the Opponent/s

 

• Nil -

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.