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Nadiya (Minor) Represented by Guardian v. Proprietor Fathima Hospital, Calicut & Ors.
2001 (1) CPR 559
Consumer Protection Act, 1986 - Section 2 and 14 – Medical negligence – Burden of proof is on complainant - Complainant got herself operated by opposite party No.2 in the hospital of opposite party No.1 for improving her height – Ring fixator was fixed on the legs – Left leg remained shorter `by 1-1/2 inch – Defence pleas that said condition was because of failure of complainant to adhere to instructions and deformity occurred due to complication adoloscent idiopathic scolosis of the dorso lumbar spine – Defence pleaded was not supported by any material – Burden on complainant to establish negligence has to be judged on facts of each case – Opposite party did not file even his affidavit - Complainant`s case that there was negligence and deficiency of service has to be accepted – Complainant had spent an amount of Rs.1,94,122/- in the opposite party hospital and Rs.2,00,000/-in other hospital which she consulted subsequently – She was 17 years old girl and must have undergone physical pain and agony as becoming afflicted with deformity - Compensation of 5 lakhs awarded to be paid in three months failing amount to carry interest at 14%. (Paras 6 to 12)
Result: Complaint allowed.
Counsel for the parties:
For the Complainant : Mr.K.G.Pavithran, Advocate.
For the Opposite Parties : Mr.M.Ramesh Chandran, Mr.K.Bhaskaran Nair, Advocates.
ORDER
L.Manoharan, President Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
2. The allegations in brief is that the complainant aged 17 years an a student of VIII standard had a height of 136 cms. Which for her age since was felt to be less, attracted by the advertisement Exbt P19 approached the first opposite party hospital in July 1996 where the second opposite party assured her increase in the height by 10 cms in six months by surgery and the charge for the same was fixed at Rs.32,000/-. In view of the same, she got herself admitted on 24-7-1996 in the first opposite party hospital and her right leg below the knee was operated on 25-7-1996 and the left leg below the knee was operated on 1-8-1996. A Ring fixator was fixed on the legs; the one on the right leg was adjusted from 2-8-1996, and one on the other was adjusted from 10-8-1996, the same had to be adjusted every six hours. The staff of the hospitals were not trained for the said purpose and the father of the complainant was instructed to attend, the same as per the instructions of the doctor, and he was attending the same. The fact that the nurse and staff were not equipped to attend the same itself would amount to negligence. On 16-9-1996 she was discharged with the instruction that every 15 days X-Ray has to be taken and has to be consulted. At the time of discharge the length of the two legs were not the same and hence she could not walk. By September 1996, pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the Ring fixator adjustment must be continued. By the same the feet as well as the leg below the knees got curved. Later when she met him in the same month he instructed her to stop the adjustment of the Ring fixator on the left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the Ring fixator for the right leg also and in April 1997 the Ring fixators were removed and plaster was applied. But the left leg was short by 1-1/2 inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotheraphy was being continued. On 17-9-1997 operation was conducted on the left foot and on 1-11-1997 skin grafting was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue of the physiotheraphy. A physiotheraphist was engaged to attend the physiotheraphy at her home and the same was intimated to the second opposite party. Since, the length of the left leg is shorter, she leans on the left there was also deformity for the foot. After the operation on 25-7-1996 she was bed ridden till March 1998. A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs.2,43,000/- for the operation and hospital expenses. Apart from the same, she has to incur other expenses for future treatment also, therefore the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct, but admits that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against this opposite party. The nurses attached to the hospital are well qualified and well trained. The allegations of negligence is denied.
4. In the version by the second opposite party he contended that he has taken a professional indemnity policy for doctors and medical practitioners from the New India Assurance Company Limited having their Head Office at M.G.Road, Bombay. The policy No. is 46721200 01833. Therefore the said Insurance Company also is a necessary party to the proceedings. The fact that the complainant approached the hospital for surgery for increasing her height is not disputed. She has the adoloscentidiopathic scolosis of the dorso lumber spine. The cause of her present position is the said condition, the same could not be noticed initially and the said condition is not caused by surgery. The present condition of the complainant cannot be attributed to the surgery performed by him, the father and daughter were informed as to the complications inherent in the said operation. They were also informed as to the nature of co-operation required from the patient for the success of the surgery. The cortiocotomy surgery with external fixator on the complainant`s right leg was done on 25-7-1996. The method of adjusting Ring fixator was explained, the staffs are qualified to adjust the Ring fixator. There are trained nurses in the hospital. After due surgery the complainant was discharged on 16-8-1996 with an advice to take X-ray and report back once in 15 days. In September, 1996 it was found that the complainant was not adhering to the instruction as to the stretching exercise, during that period though the bone was lengthening the muscles did not adequately stretch on account of the failure on the part of the complainant to attend the exercise as instructed. The X-ray showed, there was lenthening of both bones of the right leg. But there was contractures, of the calf muscles, that was only due to inadequate stretching of the right calf muscles while bones continued to be lengthening, She and her father were told to do vigorous stretching exercise of the calf muscles. She was told as to the cause for her deformities of the feet, and if further lengthening of both the legs was not stopped, she would need corrective surgery. But she was adamant and wanted the lengthening process to continue and was prepared for the soft tissue correction surgery later. Later it was decided to further lengthening of the left leg to achieve equality in the length of both legs. The length of both the legs of the complainant was found equal on clinical examination as well as radiologically examination. It is incorrect to say that her left leg was shorter by 1-1/2 inch by the end of November 1997 she could walk. On 11-5-1998, the opposite party explained to the complainant, that the length of her both legs is equal, even then she was not convinced. On a detailed examination on 8-1-1998, it was found that she was developing a deformity of the `spine called Adoloscent Idopathic Scolosis of Dorso Lumber Spine which caused lifting up of the left side of the pelvis and alongwith it the whole left lower leg. Therefore, while standing, the level of the pelvis, instead of being horizontal became oblique with the left lower limb going up which produced an apparent and not true shortening of the left lower limb. He denied the allegation, there was deficiency of service. He also disputed the quantum of compensation claimed. He wanted dismissal of the complaint.
5. Complainant filed affidavit and offered for cross examination, she was examined as PWI, Complainant produced Exbts P1 to P20. On behalf of the opposite parties no affidavit was filed and none was examined. The points that would arise for consideration are:
1. Is the complaint maintainable? And whether the negligence and deficiency of service alleged is true?2. What, if any, is the compensation of which the complainant is entitled to?
3. Relief and costs?
Point No.1
6. It is settled position that in a complaint which alleges negligence on the part of a Medical Practitioner the burden of proof is on the complainant. The fact that the complainant got herself admitted on 24-7-1996 for improving her height is not in dispute, surgery was conducted by the second opposite party on 25-7-1996 on the lower part of the left leg and conducted surgery on 1-8-1996 on the lower part of the right leg also is not in dispute. Ring fixator was fixed on the legs, was adjusted from 101996 every six hours is also not in dispute. Whereas the complainant would allege that at her discharge on 16-8-1996 with the instruction that X-ray should be taken and must report back after 15 days, both legs were not of the same length, the second opposite party would not admit the same. The affidavit and the evidence of PWI would show that she was required to continue to the adjustment of the ring fixator, later at stages she was asked to stop the adjustment. What she would swear is, because of the defect in the operation and treatment, her left leg remained shorter by 1-1/2 inch that the right leg and hence she leans on the left. But the second opposite party would contend that the said condition was because of the failure of the complainant to adhere to the instructions, and also would maintain that the same was due to the complication. `Adoloscent Idiopathic Scolosis of the Dorso Lumbar Spine.
7. Now the question for consideration is whether the materials placed by the complainant alongwith her evidence would discharge her burden as to the alleged negligence. The probative value of the evidence tendered by the complainant by affidavit, as PWI and the documents produced, Exbt P1 to Exbt P20 has to be considered in the context of the attending circumstances and the nature of the contentions raised. One important aspect to be kept in view is, complainant was 17 years at the time when she got admitted in first opposite party hospital. Her height was 136 cms. Admittedly she consulted not for treatment of any illness or ailment. According to the complainant she did not suffer from any ailment and she approached the opposite parties for improving her height attracted by Exbt P19 advertisement. Exbt P19 advertisement in the newspaper declares that a dwarf could become Amitabh Bachan of tomorrow. `It states that by the Illizorove method the height can be increased by one inch with in a period of 25 days and it mentions the second opposite party as the surgeon. This advertisement is not denied. The second opposite party would plead ignorance of such an advertisement; the first opposite party does not deny it. What is important is, the occasion for the complainant to solicit the services of the opposite parties was the said advertisement. She underwent the said cosmetic surgery. One of the aspects to be seen in this connection is whether there was informed consent for the said operation. The second aspect would be whether there was actual negligence in conducting the surgery resulting in injury to the complainant. As regards the question whether there was informed consent, the very allegation in para 3 of the complaint would support a conclusion that the second opposite party informed the complainant and her father as to the benefits of such surgery and that the achievements. PWI admitted in the cross examination that on 24-7-1998 she signed a paper giving consent to the operation. When the said testimony of the complainant is understood in the context of para 3 of the complaint it is probable that necessary consent was given.
8. Then the question for consideration whether there was negligence in conducting the said operation. In appreciating the case of the complainant in this regard certain factors have to be kept in view; particularly her condition when she consulted the opposite parties and her condition after the surgery. As she was a healthy girl of 17 having no complication and there being no dispute that she came walking and it was only a cosmetic surgery just to improve her height, at that stage there is no case that she had any ailment. Exbt P1 discharge summary from 24-7-1996 to 16-8-1996 does not mention any particular ailment. Thus, from the evidence the complainant was an young girl of 17, healthy had no complaint when she approached the first opposite party surgeon except that she felt her height has to be improved. She underwent cosmetic surgery with Rings fixator.
9. Having regard to the said details it would be necessary to see her present condition in the matter of judging as to whether she has discharged the burden of proof. As has noticed, she was healthy and the surgery which she underwent was not for any complaint or on account of her suffering from any illness or malfunctioning of system. But at trial she required to be helped to reach the witness box and she had to be permitted to sit while giving evidence. In the affidavit filed by the complainant it is averred that for correcting the deformity after the surgery she had to consult Dr.Gopalkrishnan of Appolo Hospital Madras in December 1998 and she was admitted on 12-2-1998 in Appolo Hospital and had to undergo surgery on 3-12-1998. The said fact is averred in para 36 of the affidavit. Exbt P9 is the discharge summary of the Appolo Hospital which is proved by the affidavit of the complainant, the diagnosis mentioned therein, left tibial varus, intorsion deformity and left foot equino varus deformity. On the date of discharge her condition is stated to be NWS left side with walker. Exbt P9 shows that she has to have a walker on the left side, in the affidavit also she says, the deformity of the left leg reduced and movement was restored. Though she was cross examined by first and second opposite parties there is no effective cross examination by first and second opposite parties there is no effective cross examination on the aforesaid aspects, averred in the affidavit. Thus, what is to be noted is a healthy girl after the surgery needs the aid of a walker as she had to lean on the left.
10. Another aspect to be noted in this connection is, the nature of the defence taken by the opposite party particularly the second opposite party particularly the second opposite party. As has noted where as the complainant would maintain that she followed the instructions and performed the exercise as was instructed and ultimatley physiotherapist too was engaged till said deformity on the performance of the surgery persists. One defence of the opposite party is, she did not comply with the instructions; at the same time he seeks to maintain that it is due to adoloscent idiopathic scolosis of the dorso lumber spine. Exbt P9 does not mention such a complication in Exbt p# the outpatient record has an entry on 8-1-1998 DL Spine scross of lumber region to the left. Now it is necessary to note, whereas the complainant maintained her left leg is short by 1-1/2 inches, the second opposite party would deny the same and seeks to maintain that both the legs have same length. Incidently, Exbt P8 photograph with the negative proved by affidavit shows the features of the leg, it shows the deformity. In paragraph 15 of the second opposite party`s version it is contended, on 11-5-1998, the opposite party showed the complainant that on Rongerograms both legs were of equal length. But she was not convinced, the second opposite party contends on detailed examination, the opposite party found on 8-1-1998 that she was developing a deformity of the spine called `Adoloscent Idopathic Scolosis of Dorso Lumber Spine which in ordinary words is a curvature of the spine caused lifting up of the left side of the pelvis and alongwith it the whole left lower leg. So, while standing, the level of Pelvis, instead of being normal horizontal became oblique with the left lower limb also went up. This produced, an apparent and not true shortening of the left lower limb. This pleading would go against his case that the deformity came into existence because of the negligence of the complainant in not adhering to the instructions. The effect of the same is also described in Para 3 of the version he says as regards the said condition Cause of this is not known ad occurs between 10 years and skeletial maturity. If that is the position, as has noticed his case that the complication arose because of failure to adhere to the instructions cannot be supported. Thus in the very case of the opposite party there is inconsistency. It is significant, the second opposite party admits when the complainant stands the left limb would not touch the ground because it would be lifted. The cause he says is, a complication which as noticed to not disclosed till 8-1-1998. The complainant as PWI denied the said suggestion saying that she has no such disease or complication.
11. The burden on a complainant to establish negligence has to be judged on the facts of each case. In this case the complainant filed an affidavit detailing her case as well as offered for cross examinations, that she had to go to Appolo hospital is not challenged in the cross examination. None of the opposite parties has tendered any evidence either oral or documentary except producing the case file. It is true that the complainant moved I.A. 779/2000 for the issue of a commission for examining Dr.Gopalkrishnan, the said application was allowed, but the complainant filed another application later saying that for the reasons averred in the affidavit the order appointing the commissioner has to be recalled. The reason averred in the affidavit is when the doctor was requested to give evidence he said due to certain subsequent events he is not in a position to give evidence in a case against a doctor. Of course the averment by the petitioner by itself need not render the examination impossible as in such circumstance he could have taken steps for the issue of summons to the doctor for his examination before this Commission as a witness. The question is whether the failure to examine the said doctor, in the facts and circumstances of this case would adversely affect the case of the complainant has to be judged in the context of the nature of the case pleaded by the opposite party, the affidavit and evidence of PWI along with the materials already produced. As has already noted, the condition of the complainant when she consulted the 2nd opposite party, she was healthy without any complainant, her position after the surgery at discharge from first opposite party hospital alongwith the said evidence would show the burden is shifted to the opposite parties to substantiate their case that the lifting of the left limb was due to a complication which developed later. At least the second opposite party could have filed an affidavit and offered for cross examination. No reason whatever is assigned as to why any one of them did not file affidavit. In such circumstances, with due regard to the nature of the case pleaded by the second opposite party, and the evidence tendered by the complainant, unless the opposite parties substantiates, that deformity is the result of the condition pleaded by them, the case of the complainant in this regard has to be accepted. In this connection, it has to be noted, though it was contended that when the second opposite party wanted to stop the process at a particular stage the complainant insisted to continue the process for getting the desired height. This is not even put to PWI when she was examined. These are matters what could have been proved by filing affidavit and offering for cross examination, that is not done. Since the exhibits are proved by affidavit and there being no challenge as regard the same as complainant is entitled to rely on them. Exbt P1 series discharge summaries, P2 series P4 series, P5 series bills and Exbt P6 series prescriptions alongwith Exbt P3 series. Case records of the complainant 1st opposite party hospital support and corroborate the evidence of PWI and her affidavit as to her treatment and details of 1st opposite party hospital. Exbt9 discharge summary alongwith P10 series, P11 series, P12 series, P13 series and P16 series bills of the Appolo Hospital prove that she had to undergo surgery and treatment there. When such is the situation it has to be found that the case pleaded by the opposite party that because of Adoloscent idiopathic scolosis of the dorso lumbar spine the present deformity developed is not substantiated. Then the case of the complainant that there is negligence and deficiency of service should be accepted. This point therefore found in favour of the complainant.
Points No. 2 and 3
The complainant has produced Exbts P2 series P4 series and P5 series bills evidencing payment to the first opposite party hospital. These bills take in an amount of Rs.1,94,122/- This is bare expenses in the first opposite party hospital towards medicine etc. The claim in the complaint is towards medical expenses Rs.2,43,000/- and for future treatment mental agony etc. the further claim is Rs.15 lakhs. Thus the total claim is Rs.17,43,000/- The bills and medical expense and the other charges of the hospital alone cannot be the expenditure, there could be other incidental expenses also. In measuring the compensation the actual expenses which she had to meet the subsequent charges at the Appollo hospital have to be kept in view. Apart from the same, naturally she should have undergone physical pain as well agony; an young girl becoming afflicted with such deformity will certainly be agonised and desperate. The expenditure at the Appollo hospital is sought to be established by Exbt P10 series P11 series P12 series P13 series bills which come to more than Rs.2,00,000/- (Rs.Two Lakhs). Apart from the same, she had to meet other expenditure also as seen from by Exbt P6 series P14 series P17 series etc. Having regard to the aforesaid expenditure towards the hospital expenses, we consider that towards mental agony and medical expenses the complainant is eligible for a total compensation of Rs.5,00,000/- (Rs.Five Lakhs).
12. Now the liability to pay the said amount has also to be gone into particularly in the context of the submission by the learned counsel for the first opposite party that if at all there is any liability that should be only for the second opposite party, doctor. This is a tortious liability; admittedly, at the relevant period the second opposite party, doctor was employed in the first opposite party hospital. Therefore, the first opposite party is vicariously liable for the tortious acts of his employee during the course of his employment. But one important aspect to be noted is, the second opposite party in para 2 of the version stated that he has taken a professional indemnity policy for doctors and medical practitioner during the relevant period from the New India Assurance Company Limited and that the said party has to be impleaded. Accordingly, the complainant moved a petition for impleading the said party. New India Assurance Company Limited and was impleaded as the 3rd opposite party as per order on I.A. 983/99. The 3rd opposite party though was served remained absent and was set as parte. Therefore so far as the liability of the second opposite party has to be indemnify to the extent of the insured amount. The second opposite party does not state for what amount he took the policy or the extent of the insurance cover. The 3rd opposite party is the ex-parte, the 3rd opposite party can not be absolved from the liability to the extent of the policy amount, the 3rd opposite party will be liable to indemnify the second opposite party to the extent of the amount covered by the policy. In the circumstances the complainant shall be entitled to her costs which we fix at Rs.2,000/- Points found accordingly.
13. In the result opposite parties 1 and 2 are directed to pay Rs.5,00,000/- (Rs.Five Lakhs) to the complainant the 3rd opposite party is liable to indemnify the second opposite party to the extent of the amount covered by the policy. The said amount shall be paid as above within three months of the receipt of the copy of this order failing which the said amount will bear interest at 14% from the date of the expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs Rs.2,000/-.
Complaint allowed.
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NADIYA v. PROPRIETOR, FATIMA HOSPITAL
II (2001) CPJ 93
Consumer Protection Act, 1986 - Sections 2 (1)(g), 14(1) (d) – Medical Negligence – Deficiency in Service - Negligence committed in Surgery - Compensation – Complaint approached opposite party`s Hospital for surgery for increasing the height - Cortiocotomy surgery with external fixator done – Left leg remained shorter by 1 ½ inch than the right leg – A healthy girl after the surgery needs the aid of walker as she had to lean on the left – Burden shifted to opposite parties to substantiate the case that the lifting of the left limb due to a complication which developed later – Contention, complication arose because of failure to adhere to instructions cannot be supported - Case pleaded by opposite parties for present deformity not substantiated negligence / deficiency in service established – Complainant entitled to get compensation. (Paras 7, 8 & 10)
(ii) Insurance – Professional indemnity policy taken for doctors and medical practitioner – Insurance Company liable to indemnify the opposite party to the extent of insured amount. (Para 12)
Result : Complaint allowed
Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
2. The allegation in brief are that the complainant aged 15 years and a student of VIII Standard had a height of 136 cm. which for her age since was felt to be less, attracted by the advertisement, Exbt P19 approached the first opposite party hospital in July 1996 where the second opposite party assured her increase in the height by 10 cms. in six months by surgery and the charge for the same was fixed at Rs.32,000/-. In view of the same, she got herself admitted on 24.7.1998, in the first opposite party hospital and her right leg before the knee was operated on 1.8.1996. Ring fixator was fixed on the legs; the one on the right leg was adjusted from 2.8.1996 and the one on the other was adjusted from 10.8.1996, the same had to be adjusted every six hours. The staff of the hospital were not trained for the said purpose and the father of the complainant was instructed to attend the same as per the instruction of the doctor, and he was attending the same. The fact that the nurse and staff were not equipped to attend the same; itself would amount to negligence. On 16.9.1996, she was discharged with instruction that every 15 days X-ray has to be taken and has to be consulted. At the time of discharge the length of the two legs were not the same and hence she could not walk. By September 1996, pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the ring fixator adjustment must be continued. By the same the feet as well as the leg below the knee got curved. Later when she met him in the same month he instructed her to stop the adjustment of the Ring fixator on the left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the Ring fixator for the right leg also and in April, 1997 the Ring fixator for the right leg also and in April, 1997 the Ring fixators were removed and plaster was applied. But the left leg was short by 1 ½ inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotherapy was being continued. On 17.9.1997, operation was conducted on the left foot and on 1.11.1997 skin grating was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue on the physiotherapy. A physiotheraphist was engaged to attend the physiotherapy at her home, and the same was intimated to the second opposite party. Since, the length of he left leg is shorter, she leans on the left; there was also deformity for the foot. After the operation on 25.7.1996 she was bed-ridden till March, 1998. A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs.2,43,000/- for the operation and hospital expenses. Apart from the same, she had to incur other expenses for future treatment also, therefore, the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct; but admits that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against the opposite party. The nurses attached to the hospital are well-qualified and well-trained. The allegations of negligence is denied.
4. In the version by the second opposite party he contended that he has taken a professional indemnity policy for doctors and medical practitioners from the New India Assurance Company Limited having their Head Office at M.G.Road, Bombay. The Policy No. is 46721200 01833. Therefore, the said Insurance Company also is a necessary party to the proceedings. The fact that the complainant approached the hospital for surgery for increasing her height is not disputed. She has the `adoloscentidiopathic scolosis’ of the of the dorso lumber spine. The cause of her present position is the said condition, the same could not be noticed initially and the said condition is not caused by surgery. The present condition of the complainant cannot be attributed to the surgery performed by him, the father the daughter were informed as to the complications inherent in the said operation. They were also informed as to the nature of co-operation required from the patient for the success of the surgery. The cortiocotomy surgery with external fixator on the complainant`s right leg was done on 25.7.1996. The method of adjusting Ring fixator has explained, the staff are qualified to adjust the Ring fixator. There are trained nurses in the hospital. After due surgery the complainant was discharged on 16.8.1996 with an advice to take X-ray and report back once in 15 days. In September, 1996 it was found that the complainant was not adhering to the instruction as to the stretching exercise; during that period though the bone was lengthening the muscles did not adequately stretch on account of the failure on the part of the complainant to attend the exercise as instructed. The X-ray showed, there was lengthening of both bones of the right leg. But there was contractures of the calf muscles, that was only due to inadequate stretching of the right calf muscles while bones continued to be lengthening. She and her father were told to do vigorous stretching exercise of the calf muscles. She was told as to the cause for her deformities of the feet, and if further lengthening of both the legs was not stopped, she would need corrective surgery. But she was adamant and wanting the lengthening process to continue and was prepared for the soft tissue correction surgery later. Later, it was decided to further lengthening of the left leg to achieve equality in the length of both legs. The length of both the legs of the complainant was found equal on clinical examination as well as radiological examination. It is incorrect to say that her left leg was shorter by 1 ½ ” inch, by the end of November, 1997 she could walk. On 11.5.1998, the opposite party explained to the complainant, that the length of her both legs is equal, even then she was not convinced. On a detailed examination on 8.1.1998 it was found that she was developing a deformity of the `spine’ called “Adoloscent Idopathic Scolosis” of Dorso Lumber Spine which caused lifting up of the left side of the pelvis and along with it the whole left lower leg. Therefore, while standing, the level of the pelvis, instead of being horizontal became oblique with the left lower limb going up which produced an apparent and not true shortening of the left lower limb. He denied the allegation, there was deficiency of service. He also disputed the quantum of compensation claimed. He wanted dismissal of the complaint.
5. Complainant filed affidavit and offered for cross examination, she was examined as P.W.
1. Complainant produced Exbts. P1 to P20. On behalf of the opposite parties no affidavit was filed and none was examined. The points that would arise for considerations are :
(1) Is the complaint maintainable? And whether the negligence and deficiency of service alleged is true ?
(2) What, if any, is the compensation to which the complainant is entitled to ?
(3) Relief and costs.
Point No.1 :
It is settled position that in a complaint which alleges negligence on the part of a Medical Practitioner the burden of proof is on the complainant. The fact that the complainant got herself admitted in the first opposite party hospital on 24.7.1996 for improving her height is not in dispute, surgery was conducted by the second opposite party on 25.7.1996 on the lower part of the left leg and conducted surgery on 1.8.1996 on the lower part of right leg also is not in dispute. Ring fixator was fixed on the legs, the one on the left leg was adjusted from 2.8.1996 and the one on the right was adjusted from 10.8.1996 every six hour is also not in dispute. Whereas the complainant would allege that at her discharge on 16.8.1996 with the instruction that X-ray should be taken and must report back after 15 days, both legs were not of the same length, the second opposite party would not admit the same. The affidavit and the evidence of P.W.1 would show that she was required to continue to the adjustment of the Ring fixator, later at stages she was asked to stop the adjustment. What she would swear is, because of the failure of the complainant to adhere to the instructions and also would maintain that the same was due to the complication`Adoloscent idiopathic scolosis of the dorso lumbar spine.’
6. Now, the question for consideration is whether the materials placed by the complainant along with her evidence would discharge her burden as to the alleged negligence. The probative value of the evidence tendered by the complainant by affidavit, as P.W. 1 and the documents produced, Exbt. P1 to Exbt. P20 has to be considered in the context of the attending circumstances and the nature of the contentions raised. One important aspect to be kept in view is, complainant was 17 years at the time when she got admitted in first opposite party hospital. Her height was 136 cms. Admittedly she consulted not for treatment of any illness or ailment. According to the complainant she did not suffer from any ailment and she approached the opposite parties for improving her height attracted by Exbt.19 advertisement. Exbt.19 advertisement in the newspaper declares that a `dwarf could became Amitab Bachan of tomorrow’. It states that by the Illizorove method the height can be increased by one inch within a period of 25 days and it mentions the second opposite party as the surgeon. This advertisement is not denied. The second opposite party would plead ignorance of such an advertisement; the first opposite party does not deny it. What is important is, the occasion for the complainant to solicit the service of the opposite parties was the said advertisement. She underwent the said cosmetic surgery. One of the aspects to be seen in this connection is whether there was informed consent for the said operation. The second aspect would be whether there was actual negligence in conducting the surgery resulting injury to the complainant. As regards the question whether there was informed consent, the very allegation in para 3 of the complaint would support a conclusion that the second opposite party informed the complainant and her father as to the benefits of such surgery and that the achievements. P.W.1 admitted in the cross-examination that on 24.7.1998 she signed a paper giving consent to the operation. When the said testimony of the complainant is understood in the context of para 3 of the complaint it is probable that necessary consent was given.
7. Then the question for consideration whether there was negligence in conducting the said operation. In appreciating the case of the complainant in this regard certain factors have to be kept in view; particularly her condition when she consulted the opposite parties and her condition after the surgery. As she was a healthy girl of 17 having no complication and there being no dispute that she came walking and it was only a cosmetic surgery just to improve her height, at that stage there is no case that she had any ailment. Exbt. P1 discharge summary from 24.7.1996 to 16.8.1996 does not mention any particular ailment. Thus, from the evidence the complainant was a young girl of 17, healthy had no complaint when she approached the first opposite party hospital and consulted the second opposite party surgery except that she felt that her height has to be improved. She underwent cosmetic surgery with Rings fixator.
8. Having regard to the said details it would be necessary to see her present condition in the matter of judging as to whether she has discharged the burden of proof. As has noticed, she was healthy and the surgery which she underwent was not for any complaint or on account of her suffering from any illness or malfunctioning of the system. But at trial she required to be helped to reach the witness box and she had to be permitted to sit while giving evidence. In the affidavit filed by the complainant it is averred that for correcting the deformity after the surgery she had to consult Dr.Gopalkrishnan of Apollo Hospital, Madras in December, 1998 and she was admitted on 2.12.1998 in Apollo Hospital and had to undergo surgery on 3.12.1998. The said fact is averred in para 36 of the affidavit, the reason for approaching the Appolo Hospital is also averred in para 35 of the affidavit. Exbt. P9 is the discharge summary of the Appolo Hospital which is proved by the affidavit of the complainant, the diagnosis mentioned therein, left tibial varus, intorsion deformity and left foot equino varus deformity. On the date of discharge her condition is stated to be “ NWB left side with walker ” Exbt. P9 shows that she has to have a walker on the left side, in the affidavit also she says, the deformity of the left leg reduced and movement was restored. Though she was cross-examined by first and second opposite parties there is no effective cross-examination on the aforesaid aspects; averred in affidavit. Thus what is to be noted is a healthy girl after the surgery needs the aid of a walker, she had to lean on the left.
9. Another aspect to be in this connection is, the nature of the defence, taken by the opposite party particularly the second opposite party. As has noted whereas the complainant would maintain that she followed the instructions and performed the exercise as was instructed and ultimately physiotherapist too was engaged still said deformity on the performance of the surgery persists. One defence of the opposite party is, she did not comply with the instructions, at the same time he seeks to maintain that it is due to “adoloscent idiopathic scolosis of the dorso lumber spine.” Exbt.P9 does not mention such a complication, Exbt. P3, the out-patient record has an entry on 8.1.1998. “DL. Spine across of lumber region to the left. Now it is necessary to note, whereas the complainant maintained her left leg is short by 1 ½ inch, the second opposite party would deny the same and seeks to maintain that both the legs have same length. Incidentally Exbt. P8 photograph with the negative proved by affidavit shows the features of the leg, it shows the deformity. In paragraph 15 of the second opposite party`s version it is contended, on 11.5.1998, the opposite party showed the complainant that on Rongerograms both legs were of equal length. But she was not convinced, the second opposite party contends on detailed examination, the opposite party found on 8.1.1998 that she was developing a deformity of the spine called `Adoloscent Idiopathic Scolosis’ of Dorso Lumber Spine which in ordinary words is a curvature of the spine caused lifting up of the left side of the pelvis and along with it the whole left, lower leg. So, while standing, the level of Pelvis, instead of being normal horizontal became oblique with the left lower limb also went up. This produced, an apparent and not true shortening of the left lower limb.” This pleading would go against his case that the deformity came into existence because of the negligence of the complainant in not adhering to the instructions. The effect of the same is also described in para 3 of th version he says as regards the said condition “Cause of this is not known and occurs between 10 years and skeletial maturity.” If that is the position, as has been noticed his case that the complication arose because of failure to adhere to the instructions cannot be supported. Thus in the very case of the opposite party there is inconsistency. It is significant the second opposite party admits when the complainant stands her left limb would not touch the ground because it would be lifted. The cause he says is a complication which as noticed is not disclosed till 8.1.1998. The complainant as P.W.1. denied the said suggestion saying that she has no such disease or complication.
10. The burden of a complainant to establish negligence has to be judged on the facts of each case. In this case the complainant filed an affidavit detailing her case as well as offered for cross examination, that she had to go to, Apollo Hospital is not challenged in the cross-examination. None of the opposite parties has tendered any evidence either oral or documentary, except producing the case file. It is true, that the complainant moved I.A.779/2000 for the issue of a commission for examining, Dr.Gopalkrishnan, the said application was allowed, but the complainant filed another application later saying that for the reasons averred in the affidavit the order appointing the Commissioner has to be re-called. The reason averred in the affidavit is when the doctor was requested to give evidence he said due to certain subsequent events he is not in a position to give evidence in a case against a doctor. Of course, the averment by the petitioner by itself need not render the examination impossible as in such circumstances he could have taken steps for the issue of summons to the doctor for his examination before this Commission as a witness. The question is whether the failure to examine the said doctor, in the facts and circumstances of this case, would adversely affect the case of the complainant has to be judged in the context of the nature of the case pleaded by the opposite party, the affidavit and evidence of P.W.1 along with the materials already produced. As has already been noted, the condition of the complainant when she consulted the 2nd opposite party, she was healthy without any complaint, her position after the surgery at discharge from first opposite party hospital along with the said evidence would show the burden is shifted to the opposite parties to substantiate their case that the lifting of the left limb was due to a complication which developed later. At least the second opposite party could have filed an affidavit and offered for cross-examination. No reason whatever is assigned as to why anyone of them did not file affidavit. In such circumstances with due regard to the nature of the case pleaded by the second opposite party, and the evidence tendered by the complainant, unless the opposite parties substantiates, that deformity is the result of the condition pleaded by them, the case of the complainant in this regard has to be accepted. In this connection, if has to be noted, though it was contended that when the second opposite party wanted to stop the process at a particular stage the complainant insisted to continue the process for getting the desired height. This is not even put to P.W.1 when she was examined. These are matters that could have been proved by filing affidavit and offering for cross-examination, that is not done. Since the exhibits are proved by affidavit and there being no challenge as regards the same the complainant is entitled to rely on them. Exbt.P1 series discharge summaries, P2 series, P4 series, P5 series bills and Exbt. P6 series prescriptions along with Exbt. P3 series. Case records of the complainant 1st opposite party hospital support and corroborate the evidence of P.W.1 and her affidavit as to her treatment and details of 1st opposite party hospital. Exbt. P9 discharge summary along with P10 series. P11 series, P12 series, P13 series and P16 series bills of the Apollo Hospital prove that she had to undergone surgery and treatment there , such is the situation it has to be found that the case pleaded by the opposite party that because of “Adoloscent idiopathic scolsis of the dorso lumbar spine” the present deformity developed is not substantiated. Then the case of the complainant that there is negligence and deficiency of service should be accepted. This point, therefore, found in favour of the complainant.
Point Nos. 2 and 3 :
11. The complainant has produced Exbts. P2 series, P4 and P5 series bills evidencing payment to the first opposite party hospital. These bills take in an amount of Rs.1,94,122/-. This is bare expenses in the first opposite party hospital towards medicine, etc. The claim in the complaint is towards medical expenses Rs.2,43,000/- and for future treatment, mental agony, etc. the further claim is Rs.15 lakhs. Thus the total claim is Rs.17,43,000/- . The bills and medical expense and the other charges of the hospital alone cannot be the expenditure, there could be other incidental expenses also. In measuring the compensation the actual expenses which she had to meet at the first opposite party hospital and also the further expenditure she had to meet, the subsequent charges at the Apollo Hospital have to be kept in view. Apart, from the same, naturally she should have undergone physical pain as well as agony; a young girl becoming afflicted with such deformity will certainly be agonizing and desperate. The expenditure at the Apollo Hospital is sought to be established by Exbt. P10 series, P11 series, P12 series, P13 series and P16 series bills which come to more than Rs.2,00,000/- – (Rs. Two lakhs). Apart from the same she had to meet other expenditure also as seen from Exbt. P6 series, – P14 series, P17 series, etc. Having regard to the aforesaid expenditure towards the hospital expenses, we consider that towards mental agony and medical expenses the complainant is eligible for a total compensation of Rs.5,00,000/- (Rs. Five lakhs).
12. Now the liability to pay the said amount has also to be gone into particularly in the context of the submission by the learned Counsel for the first opposite party that, if at all, there is any liability that should be only for the second opposite party, doctor. This is a tortious liability; admittedly, at the relevant period the second opposite party, doctor was employed in the first opposite party hospital. Therefore, the first opposite party is vicariously liable for the tortious acts of the employee during the course of his employment. But one important aspect to be noted is, the second opposite party in para 2 of the version stated that he has taken a professional indemnity policy for doctors and medical practitioner during the relevant period from the New India Assurance Company Limited and that the said party has to be impleaded. Accordingly the complainant moved a petition for impleading the said party `New India Assurance Company Limited’ and was impleaded as the 3rd opposite party as per order on I.A.983/99. The 3rd opposite party though was served remained absent and was set ex-parte. Therefore, so far as the liability of the second opposite party doctor is concerned the 3rd opposite party has to indemnify to the extent of the insured amount. The second opposite party does not state for what amount he took the policy on the extent for the insurance cover. The 3rd opposite party is ex-parte. The 3rd opposite party cannot be absolved from the liability to the extent of the policy amount, the 3rd opposite party will be liable to indemnify the second opposite party to the extent of the amount covered by the policy. In the circumstances the complainant shall be entitled to her costs which we fix at Rs.2000/- Points found accordingly.
In the result opposite parties 1 and 2 are directed to pay Rs.5,00,000/- (Rs. Five lakhs) to the complainant, the 3rd opposite party is liable to indemnify the second opposite party to the extent of the amount covered by the policy. The said amount shall be paid as above within three months of the receipt of the copy of this order failing which the said amount will bear interest at 14% from the date of the expiry of the said three months till payment or recovery. The complainant shall be entitled to her costs Rs.2000/-.
Complaint allowed with costs.
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M/s. Avadh Hospital and Heart Centre through the Partner & Ors. v. Mrs.Mugdha Paul
2001 (2) CPR 263
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, UTTAR PRADESH : LUCKNOW
Consumer Protection Act, 1986 - Sections 12 and 17 – Medical negligence – Complainant suffered fracture of humerous right and was treated at hospital of appellant - Negligent deficiency alleged in act to operate when there was no necessity of doing it which complicated the matter – District Forum found that what was originally a simple spiral fracture had been converted into a multiple fracture during treatment ad held it as deficiency in service on part of appellant – Appeal – No material to suggest as to why fracture spiral shaft needed surgical intervention - Documents revealed that condition of patient became bad to worse after two surgical interventions – It supported complainant`s point that operation and treatment was given with a view to procure as much money as could be - Defence plea that opposite party was pressurized by complainant to undertake surgery was contrary to principles of medical ethics - impugned order holding appellant guilty of deficiency in service called for no interference. (Paras 9 to 12)
Result : Appeal dismissed.
When doctor deliberately erred in carrying out surgical intervention when patient`s case was not of that nature, doctor cannot be absolved of causing undue suffering and disability on the complainant.
JUDGMENT
D. D. Bahuguna, Member – This is an appeal against the judgement and order dated 25-3-2000 passed by Dsitrict Consumer Forum, Lucknow in complaint case No.494 of 1996. Briefly stated the facts of the case are as follows:
2. Smt. Mugdha Paul, wife of Sri Subeir Paul, R/0 D-186/D, LDA Colony is a house-wife. On 3-3-1996 the complainant, Mugdha Paul got injured when she fell down in her house. The complainant was taken to Awadh Hospital and Heart Centre by her hushand. She was admitted in the hospital and Dr.Vineet Kumar Agarwal, opposite party No.2 was intimated. Dr.Agarwal was not sure of the nature of the fracture occurred. The complainant was advised to go for X-ray. The X-ray machince of opposite party No.1, Awadh Hospital, was not functioning. Therefore, the complainant was referred to the chamber of Dr. Vineet Kumar Agarwal located at 1, Patel Nagar, Alambagh, Lucknow where X-ray was got done. It was found that a simple fracture was present. After a period of five days complainant was called for plaster. On 8-3-1996 the fracture was plastered by opposite party No.2, Dr. Agarwal, A third time X-ray was taken and it was found that the bone was not set at the right position. The plaster was got done three times and was repeatedly cut down by opposite party No.2 Dr.Agarwal. Later on, Dr.Agarwal asked the complainant to prepare herself for an operation which was fixed for 11-3-1996. On the advice of the doctor, she was asked to undergo a series of pathological tests. The X-ray report showed that the fracture was a simple one, but after the operation the complainant came to know that the bone was in four pieces and certain screws were inserted to set the bone. She was discharged on 13-3-1996 for removing the stitches. The stitches were removed by an ordinary blade and not by sterilized blade. Later the plaster was again made. Two stitches were left, as they had not dried. 18-4-1996 was fixed for removal of plaster. The matter was complicated b the doctor as the operation was carried out in spite of the fact that the fracture was an ordinary one and was recoverable through an ordinary plaster only and without appropriate reasons the bone was further weakened when certain holes were made in it for purposes of inserting the screws and wire and the stitches were removed without any care. On 25-3-1996 a red spot was seen and the pain was relatively increased. Therefore, the complainant approached the opposite party, Dr.Agarwal who made a window in the plaster and dressing was made. The complainant felt increased pain and the entire arm was swollen. The doctor was again approached on 1-4-1996. After examination it was found that the patient was having high temperature of 102`C. Certain antibiotics were given and tests were carried out which proved that a severe infection was present. The complainant incurred heavy financial and personal loss as extensive and high doses of medicines including injections administered, but all went to vein. The fracture started giving more and more problems. A series of x-rays and culture tests were made. The complainant faced severe pain while the plaster was cut down and re-plaster was done. The second culture report revealed negative report in spite of the fact that there was swelling and pain. This report was given by opposite party No.1. The Complainant visited the doctor twice every day from 3-3-1996 to 15-3-1996 for dressing as per advice of the doctor but there was no improvement and the case went from bad to worse. Later, on the complainant, consulted Dr. Bhargava on 28-6-1996, who is a Consultant Orthopaedic Surgeon and Traumatologist. He studied the entire report including the last summary report issued by the opposite party No.2 on 19.6.1996. Dr. Bhargava, after seeing the entire report was of the opinion that the fracture was simple and was recoverable without operation, but after operation the case became full of orthopaedic complications, infection of high degree was present. Nerve has paralysed and therefore the hand is not moving, and the two operations had weakened the bone.
3. Subsequently Dr. Bhargava, used `Meghapulse’ therapy rays for 10 days and Faradt stimulation was also introduced on the paralyte hand. Treatment is still continuing. The act of the respondents to operate when there was no necessity of doing it and further inserting the screws and wire and later on removing the screws and wire during the second operation with the intention of grabbing money from the complainant. The complainant was therefore lodged with the District Consumer Forum, Lucknow claiming a sum of Rs.50,000/- for the expenses incurred during the treatment along with 24% per annum interest and Rs.3,00,000/- as compensation against physical injury done to the complainant and a sum of Rs.1 lacs was also claimed for mental harassment and family disturbance.
4. In the written version before the District Forum, the opposite parties denied the allegations of the complainant and stated that there has been no negligence or deficiency on their part in treating the complainant. The opposite party No.2 is a competent and qualified Orthopaedic Surgeon and an operation was done to set the bone, but there was curvature of 10% on the fractured bone. The opposite party No.2 had to plaster it thrice to set the bone and advised that the bone would become normal in due course of time but the complainant and her other relatives insisted for complete recovery at the earliest. Hence the opposite party No.2, the doctor, was left with no option but to undertake surgical intervention with the written consent of the patient and other attendants. It is normal to insert screws and wire in surgical operation of bone and thereafter the bone does retain. The infection was of moderate nature and the treatment of bone ailments is prolonged as well as costly. The wires and the screws had to be removed during the second operation in order to prevent the spread of infection. In this case it was done with the consent of the complainant, but there was no guarantee to cure. Therefore, the complaint has been filed with malafide intentions.
5. The learned District Forum, after hearing both the parties, came to the conclusion that what was originally a simple spiral fracture of humorous right has been converted into a multiple fracture during the treatment of the complainant by the opposite parties-with the result that the operated parts got infected and the opposite parties failed to cure it. The Forum further held that during the treatment the hand of the complainant had become almost paralysed without any assurance from any medical quarter that the normalcy is likely to be restored. The complaint was therefore allowed and the opposite parties 1 and 2 were ordered jointly and severally to pay to the complainant a sum of Rs.3,00,000/- by way of compensation and damage. A sum of Rs.2,000/- as cost was also awarded to the complainant. It was also ordered that in case the payment thus awarded is not made within the time frame, the opposite party were to pay interest at the rate of 9 % per annum on the two sums upto the date of payment.
6. Aggrieved of this order of the learned District Forum, the opposites party have come in appeal.
7. In the grounds of appeal it has been stated that the amount claimed exceeds Rs. 5 lacs. Therefore, the Forum has no jurisdiction to entertain the complaint. The forum had not taken into consideration the evidence field by the appellant Nos. 1 & 2 . There was no negligence on the part of the appellants in treating the patient. The application for impleadment of Insurance Company has been illegally rejected by the learned District Forum. Similarly the application for appointment of a medical panel and for obtaining expert opinion was not allowed by the District Forum.
8. The respondent filed affidavit alongwith written arguments and other papers containing the sequence of events, treatments paper from various hospitals and other documents. We have also heard the arguments of the learned Counsel for the two parties. The learned Counsel for the appelant has stated that the free-treatment was given to the complainant when the complications arose. It was also argued that learned District Forum rejected the request of the opposite party to constitute a medical panel which could have given the expert opinion on the matter. The forum also did not accede to the request of the opposite party to implead the insurance company as a necessary party in the case. On the other hand, the learned Counsel for the complainant has argued that no free-treatment was given and every bit of money was charged from the complainant right from day one of the treatment. Her case was attended with negligence with the result that she is still suffering and her hand had become disabled.
9. We have gone through the entire papers field in the form of paper book by the complainant. Admission of the complainant in Avadh Hospital & Heart Centre, opposite party No. 1 is admitted. Spiral fracture shaft (R) humerous has also been admitted by the opposite party No. 2, the doctor. Two time operation and plastering several times have also been admitted by both the parties. The point of dispute is that what was originally a spiral fracture which should have been recovered by normal process and plastering turned into a complicated fracture during the course of treatment, especially after two surgical operations resulting into disability of the hand of the complainant. The case of the opposite party Nos. 1 and 2 in this connection is that the complainant underwent surgery because of the fact that bone could not have been set absolutely alright and on the insistance of the complainant and her relatives, surgical intervention had to be made and later on another operation had to be carried out to remove the screws and the wires. In this process no negligence was committed by the opposite parties and the treatment was done as per normal medical practice and norms. Examination of medical papers reveal that the patient was brought to the doctor on 3-3-1996 who found active finger movement. The doctor on 8-3-1996 diagnosed the fracture as `Spinal Fracture Shaft ( R ) humerous’ (pages 25, & 26 of papers filed). On 8-3-96 the doctor advised admission for operation on 11-3-1996. Accordingly, on 11-3-1996 the doctor carried out the operation and noted on page 27 of the papers “O.R. and I.F. done on 11-3-1996 and the patient was called for review on 8-4-1996. Before that date complications had occurred and the patient visited the hospital on 17-3-1996 and 20-3-1996. Page No.28 of the back-up papers reveal that the doctor had observed “10% Lat. angulation of all the per reduction skiagrams at the fracture site” and advised O.R. and I.M. again. Page 30 of the papers filed is a clear finding of the doctor that the fracture was spiral shaft ( R ) humerous. Therefore, it is not understood as to why surgical intervention was necessary in the case. The argument of the opposite party No.2 is that the complainant and her relatives put pressure on him for carrying out surgical operation as the hand had not been set properly by mere plastering. Doctors are required to observe the norms of medical ethics rather than succumb to wishes and pressures of the patients and their relatives. Examination of the other papers will reveal that the condition of the patient had become from bad to worse after two surgical interventions and in the normal course of medical practice, the doctor ought to have been known the repercussions. Therefore, there appears to be force in the contention of the complainant that the operation and the treatment in the opposite party hospital was with a view to procure as much money as he could have extracted from the complainant. Not only this, both the operations worsened the condition of the patient and she had to consult other doctors who found infection (page 32 of the paper book). On pages 33 and 34 is the case history of the complainant prepared by opposite party No.2, Dr. Vineet Kumar Agarwal which clearly indicates that fragments were fixed by intra-fragmentary compression with screws and wiring and on 22-3-96 two days after removal of stitches, soakage was seen on the POP. The report further says that there was in duration around the surgical site and on dressing, pyogenic discharge was seen regular dressings for a period of two months could not save the infection. Radiologically and clinically when the union was found and confirmed, re-exploration was done on 5-6-1996. All the screws and wires were extracted, post-operatively radical M. palsy was detected little abnormal mobility was found and at present the patient is on regular dressing, but when the condition of the patient was deteriorating, she got herself examined from Brahmesh Orthopaedic & Trauma Centre which did not confirm the report of the Opposite party No.2. The opposite party No.2 had confirmed the union but the said Brahmesh Hospital confirmed `un-united fracture of the shaft of the humerous (R )’ of four months duration associated with the discharging sinus and post operative radial nerve, palsy resulting in Drop Wrist. The report further indicates that the elbow joint movements were grossly restricted hardly 10 to 15 range due to long immobilization. She was therefore advised Megapulse therapy and Faradic Electrical stimulation as well as physio-therapy. Nerve condition study was also performed by the Sanjay Gandhi Post Graduate Institute of Medical Sciences, Department of Neurology and the report of the Institute shows profuse spontaneous activity from surface recording, suggesting denervation. The inference drawn by the Institute was complete functional disintegrity of radial nerve at upper arm. (page 37 of the paper book). The patient had to go to Balrampur Hospital, which is the State Hospital where she was admitted for treatment of the complications which arose as a result of the treatment given by the opposite party Nos.1 and 2. The papers from the hospital also prove pus discharge being old case of Chronic O.M. humerous (page 38 to 40 of the paper book) Alarming is the report of the Park Diagnostic Centre (page 41) which reads as “Old fracture of lower third of shaft of humerous with several necrotic bone pieces and no evidence of bony union seen.” This report is dated 21st January 1997. When we compare these reports of various hospitals with the case history of the patient written by opposite party No.2 in his own handwriting, we find that there have been deliberate omissions and the report has been prepared to cover up the deliberate negligence on the part of the opposite party Nos. 1 & 2. We find no doubt in the allegation that Dr. Vineet Agarwal complicated the case of a simple fracture by undertaking a series of operations on the patient who was a case of spiral fracture shaft ( R ) humerous and fingers were found in active movement operation was not advisable. In this case, we find that necessary skills, care and judgement were not exercised by the doctor. Twenty first Edition of Mody`s Medical Jurisprudence & Textology lays down that “To use the necessary skill, care, judgement and attention in the treatment of his patients. He has full liberty to adopt any of the accepted theories of medicine or surgery in which he honestly believes. Also there is considerable scope for him in exercising his judgement and discretion as medical science in not an exact science, he must remember that he owes a duty in tort towards his patients, whether there is any contract with the patient or not.”
10. Therefore the allegation of the opposite party that he was pressurised by the complainant and her relations to undertake surgery goes contrary to the principles of medical ethics. The Hon`ble Supreme Court in the case of Dr. Laxaman Lal Krishan Joshi v. Dr. Godbole and Another, AIR (SIC) 128 has held as under:
” The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.’ Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care of competence judged in the light of the particular circumstances of each case is what the law requires. The doctor, no doubt, has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”
The doctor opposite party No.2 therefore, deliberately erred in carrying out the surgical intervention when patient`s case was, not of that nature and he cannot be absolved of causing undue suffering and disability on the complainant.
11. A perusal of papers on record goes to show that both the opposite parties charged heavy amounts on various dates from the patient. Even for emergency night visits a sum of Rs.300/- was charged in addition to the fees paid to opposite party No.1, the hospital on various dates (page Nos.64, 66, 69, 70, 72, 76 & 78 of the paper book). This further strengthens the case of the complainant that the opposite party Nos.1 & 2 were more interested in their material benefit rather than in the well being of the patient. We, therefore, find that the opposite parties have been grossly deficient in rendering service in spite of a heavy consideration paid by the complainant. Under the circumstances, the conclusion arrived at by the District Forum is perfectly alright and the opposite parties are gully of deficiency in providing service to the complainant.
12. The learned Counsel for the appellants has argued that the District Forum ought to have accepted the application of the opposite parties, for constituting a medical panel in order to prove expert opinion the learned District Consumer Forum rightly rejected the application as we find that this is not a complicated case where the evidence of experts is found necessary. This is a reasonable case where a simple fracture was made complicated by two surgical interventions which not only did not recover the patient but also deteriorated her condition and the deterioration also resulted in, party disability which is still persisting. The argument of the learned Counsel for the appellants that the Insurance Company should have been impleaded as a necessary party in the case also is of no relevance in this case. The Insurance Company has nothing to do as far as the complainant is concerned.
13. In view of what has been discussed above, we find that the finding arrived at by the learned District Consumer Forum is perfectly alright and does not need any interference. The judgement and order of the learned District Forum has to be upheld and the appeal is liable to be dismissed.
ORDER
14. The appeal is dismissed with a cost of Rs.3,000/-. The judgement and order of the learned District Consumer Forum are confirmed.
15. Let compliance of the order of the learned District Forum be made within six weeks of the date of this order.
Let copy as per rules be made available to the parties.
Appeal dismissed.
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KU.LAXMI v. DR. S.K. GOVIL
II (2001) CPJ 325
MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL
Consumer Protection Act, 1986 – Section 14(1)(D) – Medical Negligence – Failure of Advise and Communication - Compensation – Hand fractured – Plastered – Union of the two pieces of bones not according to proper alignment – Opposite parties aware of the fact that X-ray essentially required after two to three days – Failed to ensure that instructions given in writing and patients relatives have been made to understand the importance of repeated X-ray – Liable to pay compensation.
Held : In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any childs parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patients relatives have been made to understand the importance of repeated X-ray. (Para 7)
Result : Complaint allowed.
ORDER
Mr. N.K. Vaidya, Member – This is an original complaint filed by a female child aged 1&1/2 years through her guardian, wherein it has been stated that, having suffered with a fracture in her left hand, she was taken to the Nursing Home of opposite party No. 1 where, first, X-ray of the hand was taken and thereafter her hand was plastered upon and she was discharged from the Nursing Home with directions to come to the Nursing Home of opposite party No. 3 on 30th June, 1996 for re-setting the plaster. That on 30.6.1996 Dr. Bansal and Dr. Shrivastava opposite party Nos. 2 and 3 re-set the plaster and advised the complainants guardian to come for a check up after 21 days.
2. That when the child was taken to the Nursing Home of non-applicant No.2, after 29 days, for cutting the plaster it was found that the union of the two pieces of bones was not according to proper alignment and was bent slightly and the complainant was directed to get X-ray of the joint taken again and for re-setting the joint thereafter which would cost about Rs. 25,000/-. The complainant has alleged that because of negligence by the opposite parties, the left elbow joint of the complainant child Ku. Laxmi was mal-united. The complainant furnished a certificate Ex. C-9 dated 6.2.1999 of one Dr. S.K. Arora, Orthopaedic Surgeon wherein he has stated that the elbow joint is mal-united and that the child is suffering with such a disability which cannot be corrected without an operation and the expenses of this operation will be Rs. 25,000/-.
3. In reply, the opposite parties have stated that when the child was brought to the hospital of non-applicant No. 1, i.e. Dr. S.K. Govil, the family members of the complainant were advised that this fracture was of unstable nature and required fixation by an operation for which the complainant did not agree. On his insistance, after X-ray the fracture was set under anaesthesia and the elbow was plastered. That when second X-ray was taken it was found that the bone was not properly set and the complainant was advised that further setting required use of Image Intensifier Machine which was not available at the Nursing Home of non-applicant No. 1 and was available at the Nursing Home of the non-applicant No.3. The bone was again set under Image Intensifier. Machine and the complainant was fully satisfied after having seen himself the setting of the bone on the machine. Still the family members were advised that since the fracture was of unstable nature, though bone was set, still required great after care and the bone could again be dis-located and, therefore, the family members were advised to come to the Nursing Home again after two to three days for another check up and X-ray. But the complainant came only after 21 days and when the plaster was removed and it was found that the elbow was slightly bent which was on account of the carelessness and negligence of the family members only who did not follow the advise of the non-applicant for a check up after two to three days. The non-applicants thus argued that they are not responsible for any kind of negligence or deficiency on their part and they took necessary precautionary steps and set the bone under Image Intensifier Monitor with full knowledge and satisfaction of the complainant. The opposite party Dr. Bansal has stated in his affidavit dated 17.5.1999 that the resultant deformity is a usual affair in such type of cases as has been stated in medical literature quoted by him as under :
“(As per the Orthopaedic Clinics of North America Page No. 295. The true structure of the deformity however does not become apparent until the stiffness from the injury has subsided and the child has achieved full extension. Thus the gradual appearance of the deformity is simply the result of gradual recognition that the deformity exists. It further quotes on the same page that this deformity is primarily cosmetic and mostly the functional effects are minimal and the major reason patients seek surgical correction is to change the appearance of elbow).”
4. In the book quoted by Dr. Bansal himself in subsequent paragraph it is further mentioned that this concept is important and needs to be emphasized to the patients, pre-operatively especially because the rate of complications after surgery arises from 20 to 33 percent. In the book “Fractures and Joints Injury” by Watson Johns, it is clearly mentioned that X-ray must be repeated after a few days. In Champbells Operative Orthopaedics photocopy filed by complainant on page 679, in para on Fracture of distal humerus in children, it is mentioned that cubitus baruo deformalities following supracondylar fractures, more frequently result from mal-union. On further page No. 680 it is mentioned that “over half of the fractures of the elbow in children were supracondylar”. They are most common in children between the age of five to eight. The book further mentions that “severe late complications may result from minimally displaced fractures. Non-union and mal-unions with impairment in growth, deformity, loss of motion, late traumatic arthritis, and tardy ulnar nerve palsy are frequent complications”.
5. As has been stated by the opposite parties in their report, the opposite parties were aware of this fact that the fracture was of unstable nature though bone was set and, therefore, the family members were advised by them to come to the Nursing Home again after two to three days for check up and X-ray was essentially required after two to three days. Still there is no evidence on record to show that the family members of the opposite parties were so advised. The only remark in the discharge slip record is “review SOS and after three weeks”. This does not mean that the patients relatives were advised for X-ray after two or three days. In the book, Medical Negligence and Compensation written by Dr. Jagdish Singh Vishwa Bhushan, Associate Professor, Second Edition, 1999 on the Chapter on Categories of Negligence. “Failure of advise and communication” has been considered as a negligence and on page 74 it is written as under :
“Failure to give proper instructions : it is obligatory to give warning about risk and it must be ensured that instructions are given in comprehensive terms making sure that the patient understands both the instructions and the importance of strictly adhering to them.”
6. It is further emphasized on page 185 that pathological tests and radiological tests as specified must be advised in writing. In the same Chapter it is reported as under :
“Give instructions to the patient in comprehensible terms, making sure that the patient understands both the instructions and the importance of strictly adhering to them”.
7. In the instant case there may not have been deliberate or willful negligence but there has been a failure of advise for reported X-ray two to three days latter and we have no reason to feel that any childs parent would not follow the advise of repeated X-ray. Of course we feel that the opposite party also had no interest in not advising X-ray and they would not have lost or gained anything by not advising for the same. But we feel that as stated by Dr. Jagdish Singh, the opposite party failed to ensure that the instructions are given in writing and patients relatives have been made to understand the importance of repeated X-ray.
8. There are two alternatives before us either we may direct the opposite party to re-set the bone of the child or to pay some compensation so that the child may get treatment elsewhere at a place where he lives.
9. We, therefore, feel that an award of compensation of Rs. 5,000/- to be paid by the opposite parties would meet the ends of justice and, therefore, we order accordingly. The opposite party shall pay this amount within a period of two months from the date of receipt of the certified copy of the order failing which this amount will carry 15 percent interest till payment.
Complaint allowed.
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Smt. Bett Bal Saxena v. Dr. S.L. Mukherjee, Orthopaedic Surgeon & Ors.
2001 (2) CPR 163
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADHYA PRADESH : BHOPAL
Consumer Protection Act, 1986 – Sections 12 and 17 – Medical Negligence – Complainant – appellant was operated by respondents for removal of bony growth in right hip joint on 28-8-1992 – No relief was found in pain – Second operation done by other doctor on 16-4-1993 and a moping Gauze Piece found inside the wound which was removed and complainant recovered – Affidavit of second doctor proved that gauze piece was found sinus was formed and pus was coming out of wound – Infrence is that there was negligence at that time of first operation which resulted forming of hoemotoma and pus – Respondent doctors failed to take proper care while closing operated part and left a mopping gauze inside the wound – It was case of medical negligence – Complainant - Appellant held entitled to Rs. 40,168/- amount incurred second operation and Rs. 25,000 as compensation for mental and physicalagony and Rs. 3,000/- as cost. (Paras 5 to 10 )
Result – Appeal allowed.
Important Point
When doctor while closing the operated area left a mopping gauze piece inside the wound it would be a case.
ORDER
B.L. Khare, Member – This is a complainants appeal against the order dated 30/11/1999 passed in Case No. 277/93 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the District Forum).
2. The facts giving rise to this appeal are that the appellant Smt. Bell Bai Saxena was suffering from severe pain in hips so she approached to respondent Nos. 1 and 2 the Father and the Son who are Orthopaedic Surgeon, running a clinic as P.G.Hospital. The respondent No. 3 in Insurance Company with Whom respondent Nos. 1 and 2 insured for medical claim if any medical contingency arises. The respondent Nos. 1 and 2 examined the appellant and found that appellant was a chronic patient of Exostosis and advised her operation for removal of extra bony growth in right hip-joint. The appllant was admitted in the hospital of respondent Nos. 1 and 2 as indoor patient on 18-8-1992, The operation to remove bony growth in right hip joint was performed on 20-8-1992. The appellant was admitted in the hospital upto 3-9-1992 on this date she was discharged from the hospital thereafter appellant returned to her house which is situated at Udaypura District Raisen. When the was no relief in pain she approached again, respondent Nos. 1 and 2 on 21-9-1992 for examination. The respondents told her that she will have to be operated again. The appellant had lost faith in the respondent Doctors, therefore, she did not continue the treatment of respondent Nos. 1 and 2 and consulted another doctor Dr. Jitendra Jamdar on 23-9-1992. Dr. Jamdar examined the appellant and advised some medicines. The applleant continued the treatment of Dr. Jamdar for five months. When there was no relief, so the appellant came to Bhopal and consulted Dr. B. Das who is an Orthopaedic Surgeon. Dr. Das examined the patient on 16-3-1993 and recommended that an operation will have to be done so after one month on 16-4-1993 an operation or right hip joint was performed by Dr. Das in Suresh Nursing Home at Bhopal. During this operation Dr. Das found a Moping Gauze piece inside the wound, it shows that Dr. S.L. Mukherjee, the respondent No 1 and his son Dr. Abhijeet Mukherjee the respondent No 2. have acted in a negligent manner while performing the operation of appellant. Moping Gauze piece was left by them inside the wound, therefore, the appellant had to suffer continuously and there was pain and pus was coming from the wound. It is the allegation of the appellant that respondent Nos. 1 and 2 have not taken proper care while performing the operation of the hip-joint. Thus for medical negligence and deficiency in sevice the appellant approached the District Forum and claimed a compensation of Rs. 1,62,003.03 paise from the respondents. The District Forum after examining the evidence adduced by the parties found that there was no negligence on the part of the respondents. On the other hand, it was the complainant who was negligent in changing doctor after doctors, therefore, found that the complainant had failed to prove the allegations of medical negligence, therefore, rejected the complaint and ordered the complainant to pay Rs 2,000/- to the respondents as costs of the proceedings. It is against this order, the complainant has preferred this appeal.
3. The main contention of the complainant was that it was the respondent Nos. 1 and 2 who acted negligently while performing operation and a Moping Gauze piece was left by them in the wound. This could happen only when after operation dressing is done. The Doctors have not taken proper care to clean, wash and negligently left the Moping Gauze piece in the wound due to which the wound could not heal up and there was continuous pain and formation of pus in the wound for which she has to approach several Doctors for treatment and spent Rs 62,000/- together with Rs. 1,00,000/- as compensation for mental and physical agony.
4. The respondents No 1 and 2 denied the allegations and submitted their own affidavit and affidavits of Dr. Sanjay Khanna who is anaestheist and Dr. Rajeev Bhandari, who was assisting the operation. The district Forum has analysed the case at length and has recorded the finding in the case. The respondents have submitted that they have performed the operation on 20-8-1992 and kept the patient in the hospital. The conducted all the investigations required for conducting operation. The Exostosis which was developed near the right hip joint of the appellant was cut and removed. On cutting any bone the raw bone surface has tendency to bleed slowly by a process called “oozing”, This blood collects inside the wound sometimes and forms a solid blood clot. The blood clot slowly liquifies inside the body to form a collection of liquid called “Haematoam” within one to few weeks after the operation. They submitted that it is not an unusual thing to happen in case of EXOSTOSIS, If the volume of haematoma is small, it gets absorbed, but if the volume is large it tends to leak out of some place in the original stitched wound or any weak spot in the skin, In the present case, they stated that they had checked that the bleeding has stopped from the operated area, the wound was closed by them. They took all precaution while performing operation, therefore there was not question of leaving a Moping Gauze piece inside the wound. The respondents further made clear that during surgery a Moping Gauze piece of size 5″ x 5″ cannot remain inside the wound because mopping swab is always with a tag which is clamped with a forceps outside the wound so that it is visible. They have stated that they checked an rechecked the operated area so strictly for fresh bleeding before applying the stitches. In the event of a big surgical mopping swab left inside the wound, there will be tremendous tension in the tissues on applying the stitches, then there will be difficulty in closing the wound, Therefore, they submitted that they have not acted negligently during the operation and also while closing the wound, Therefore , they submitted that they have not acted negligently during the operation and also while closing and stitching the wound. In reply, the respondents further stated that after operation post operative care was duly taken when the wound had perfectly healed, the stitches were removed and the patient was discharged from the hospital on 3-9-1992. In his affidavit respondent No, 2 Dr. Abhijeet Mukherjee in paras 5,8 and 7 has stated that small gauze pieces are not used in operation theatre for their hospital, large storage of atleast 10″ x 10″ are used in their hospital and these sponges have radio opaque lining which can be detected in any post operative X-ray, hence, If any sponge remains inside the wound, it can be easily detected through an X-ray. No such X-ray has been filed by the complainant to prove that the mopping Gauze piece was inside the wound. The respondents admitted that on 21-9-1992 the appellant visited them with complaint of swelling and pain at the place of operation and on this, they examined the patient and found that there was some discharge of blood from the wound though a small opening, therefore, they dialated and enlarged the small opening and removed the haematoma. After removing haematoma, fresh bleeding started which was packed y a Gauge to stop bleeding and the appellant was advised to come after 2-3 days for removal of gauge packing. After that the patient did not visit their hospital and consulted several other doctors. They have specially denied that they have advised for second operation of the appellant because the patient did not visit after 21-9-1992, therefore, they are not responsible for any complications developed later on. They have also drawn our attention to the certificate given by Dr. B. Das of Bhopal dated 28-8-1993 which reads thus :
“Smt. Beti Bal Saxena 60 years. F BPL
Operated on 16-4-1993 for Discharge sinus from Gluteal region Rx- Over Gv. TR
Wound had healed following Surgery a foreign body (mopping gauge piece about 5″ x 5″ with a tag in one corner) was removed from inside the muscle mass of Glutel. Wound had completely healed following removal of F.B. Needs no treatment.
Signed/-
(Dr .B. Das)
28-8-1993″
5. In the affidavit Dr. Das has stated that when he performed operation on 16-04-1993 he found a Mopping Gauze piece of 5″x 5″ under skin Fat and muscles. The plea of the respondent that the mopping Gauze piece was found between Fat and Muscle is not corroborated Dr. Das. The District Forum while analyzing the affidavit of Dr. B. Das has given a finding that the gauze piece was found between skin and fat.
6. We have gone through the evidence and find that the time of giving discharge certificate, Dr. Das had mentioned that the mopping Gauze piece was found inside the muscle mass of Glutel and in his affidavit he has also stated that (the mopping gauze piece was found below skin fat and muscle, while, the District Forum has mentioned that the gauze piece was found between skin and fat which is not corroborated with the affidavit of Dr. B. Das , therefore this finding of the district forum is erroneous. Dr. B. Das has further stated in his affidavit that if any foreign body remains inside the body then it forms a sinus and the wound does not heal up and pus remains coming out from that wound. In the affidavit, Dr. Das has stated that when he examined the patient, he found that at the first place of operation, pus was oozing and when he removed the foreign body i.e. gauze piece the wound was cured and the patient was alright.
7. From analysis of the complaint and affidavits adducing evidence, it is clear that the appellant as continuously suffering from pain and the pus was oozing out from the wound that means a sinus was formed and the pus was coming out from the wound. The affidavit of Dr. Das makes clear that the gauze was below the muscle, therefore, as per opinion of Dr. Das the pus was coming out from the wound. In this case, therefore on the basis of affidavit of Dr. Das, the usual inference is that there was some negligence at the time of first operation which resulted forming of haemotoma and pus oozed out from the place of first operation, therefore, the finding of the District Forum is erroneous and cannot be sustained.
8. True, the medical negligence cannot be attributed if a Doctor has followed the discipline and the ethics provided in Medical Books and if the Doctor has acted with reasonable degree of skill and care, then he cannot be said to be negligent. But in the instant case, we find that so far as the operation part is concerned, Doctor has performed operation as per medical norms and ethics but they have not taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
9. To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Dept of Orthopaedica in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze piece inside the wound and therefore, they are responsible for deficiency in service. We, therefore, find that due to this negligent act of the respondents, the appellant was constrained to approach other Doctors, Dr. Jamdar and Dr. B. Das and she was required to pay additional fee of Rs 24,752.85 paise and Rs 15,415.30 paise in all total of Rs. 40,168.15 paise.
10. So far as fees paid to the respondents is concerned, it was for the hospital charges and the operation performed by the respondents. Therefore, we do not take that fees into consideration we, therefore, are of the opinion that the respondents shall pay jointly or severally amount of Rs. 40,168.15 paise towards the expenses incurred in treatment and compensation of Rs. 25,000/- for mental and physical agony and Rs. 3,000.00 as cost of the proceedings throughout within a period of two months from the date of receipt of certified copy of the order failing which the total amount of Rs. 68,168:15 paise shall carry interest at the rate of 9% per annum from the date of this order.
11. In view of the above, the appeal is allowed. The order of the district Forum is set-aside. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case.
Appeal allowed.
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Dr. Anumalla Satyanarayana v. K. Shankar
I(2000)CPJ288 S C DRC, AP.
Consumer Protection Act, 1986-Section 15-“Appeal”-Section2(1)(g)-“Medical Negligence”-Complainant suffering from pain in the right leg-Consulted opposite party-Kept under his own diagnosis-No Relief-Complainant went another hospital-Leg was to be amputated because of gangrene had settled-complaint-District Forum allowed Complaint-Appeal-Opposite party did not consult any specialist-Did not refer the complainant to any other hospital-Order of District Forum upheld-Complainant entitled to compensation.
Held: The opposite party diagnosed that the complainant was suffering from “Thrombo Angitis obliterans” which pertains to the blood and treated him accordingly. The opposite party advised diet control orally which was not denied by the complainant. But while following all the instructions of the opposite party under his treatment, the pain was aggravated and the complainant on his own discontinued the treatment and came to Hyderabad. In other words, those last ten days prior to coming to Hyderabad and getting admitted in Apollo Hospital were crucial and the fact that the leg had to be amputated due to gangrene established that there was negligence on the part of the opposite party. If the opposite party could not give relief to the complainant or suspected that gangrene could set in (as he admits having warned the complainant) he should have referred him to a vascular specialist instead of continuing to treat himself.
We, therefore are of the view that in the present case, the opposite party continued to treat the complainant according to his own diagnosis, though the complainant complained of no relief. The opposite party neither consulted another specialist nor referred the complainant to anther hospital/specialist though he was a known diabetic. The opposite party admitted that in his condition, gangrene could set in any time. Which actually was diagnosed to be so on the very next day when the respondent was admitted in Apollo Hospital and his right leg was amputated on 9.7.1994. Loosing the leg must have been a traumatic experience apart from the inconvenience and expenditure involved. It has also meant loss of earning by the bread winner complainant.
We, Therefore, uphold the order of District Forum. The appeal stands rejected.
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Mrs. K.K. Radha v. Dr. G.U. Shekhar & Anr.
1994 (3) CPJ 376(Ker SCDRC)
the complainant alleged that she sustained a fracture on the lower part of her leg, for which she got admitted to BKM Hospital, Payannur, where she was treated by Dr. Shekhar. She was told that he had to implant compression plate and having got it purchased, it was not used and instead wires and screws were used. After removal of plaster it was noticed that site of operation had developed an abscess. Second opinion was taken and an emergency operation was performed to remove foreign bodies inside her leg, and subsequently plaster had to be recast four times. Negligence was held on the basis of:
· Compression plate not used after getting it purchased and neither the complainant nor her husband were informed anything about it. It was not known what was done with the same. The x-ray film clearly revealed this.
· Dr. Usman, Professor in Orthopaedics in the Kasturba Medical College, Mangalore clearly stated that for treatment in the case of fracture of tibia using of wires is not advisble. Departure from the orthodox course of treatment was not justified by the opposite parties.
· The standard of care and skill expected of a doctor was grossly wanting as was evidenced by the need to remove extraneous materials found inside the leg by operation conducted by Dr. Usman.
Rs.2 lacs was awarded as compensation. As the notices could not be served on Dr. Shekhar and since his address was not known, the second opposite party, i.e. the hospital’s vicarious liability was fixed and it was asked to pay the compensation awarded.
In the case of P.P. Ismail v. K.K. Radha, an appeal was preferred against the decision of the Kerala State Commission by Mr. P.P. Ismail, Managing Director of BKM Hospital, who was asked to compensate to the tune of Rs. 2 lakhs as he was held vicariously liable for the negligence of Dr. G.U. Shekhar.
The National Commission found no merit in this appeal, and upheld the decision of the State Commission.
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Shibu v. St. Joseph Hospital & Ors.
1995(3) CPR 177 (Kerala SCDRC)
More Details Click Here
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V.P.Shanta & Ors. Cosmopolitan Hospitals (P) Ltd & Ors.
1997(1)CPR 377 (Kerala SCDRC)
the complainant’s husband aged 59 years had a fall from his cot on 4.7.1990. As he went to the Cosmopolitan Hospital., Trivandrum where the 2nd opposite party examined him and opined that he had fracture of left neck of femur for which he was operated on 6.7.1990 . Simultaneously, he was also operated upon his salivary gland. During the post-operative period it was noticed that he had some respiratory difficulty but the duty doctors did not take it seriously and the operating surgeon had left. Ultimately the 5th opposite party came to the hospital, and examined the patient and announced that he was dead. The behavious of the hospital authorities after the death was highly suspicious. They sent a copy of the bill only after repeated requests, but refused to part with the x-ray films. It was alleged that this was on account of the fear of the fact that providing these x-rays would have revealed that conservative treatment like traction and medication would have cured the problem; but, in order to increase the number of operations and to augment income the decision to operate was taken. The hospital had also failed to carry out necessary pre-operative investigations and the services of a cardiologist were not obtained.
The State Commission held deficiency in service on part of the hospital on two issues (i) failure to deliver X-ray films, as the patient and his attendants (complainants in the instant case) have a right to be informed of the nature of injury sustained, and this right was deprived. The contention that the relatives had taken away the X-ray film, without furnishing a receipt was not accepted; (ii) not making proper arrangement for observation of the patient between 4.45 p.m. to 5.40 p.m. on 6.7.1990 after the patient was removed to post operative ward which was required after two operations on the patient out of which one was admittedly a very major operation. The patient developed cardiac arrest and pulmonary embolism and it was not certain that the complainant could have been saved. Something could have been done if the patient was not left unattended by a doctor and if cardiologist was summoned immediately.
A compensation of Rs.25000/- with interest at the rate of 12% p.a. from the date of death till payment was awarded. This amount was to be paid by the hospital, as no negligence could be established against the doctors.
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NACHHATAR SINGH v. MALKEET SINGH
III (2001) CPJ 237
Section 15 – Appeal – Section 2(1)(g) Deficiency in Service – Section 14(d) – Compensation – Medical Negligence Complainant’s minor daughter suffered fracture on left arm – Take to opposite party – Applied plaster – No cure – Taken to doctor – Complaint - District Forum granted Rs. 50,000/- as compensation – Appeal – Opposite party not a qualified doctor – Not authorise to provide such services on charging fees – Compensation rightly awarded.
Held : Admittedly, the appellant is not a qualified doctor. Whatever knowledge he had gained from his experience in giving such treatment, may be, but that does not authorise him to provide such services on charging fees. The very fact that unqualified persons attempted to render services of a doctor on charging fees will amounts to quackery as has been rightly described in the impugned order and their continuance cannot be encouraged.
Poor people should expect poor quality of medical service cannot be made a rule. It is for the protection of such poor people that Consumer Protection Act has been enacted to safeguard their rights. May be other remedies, criminal in nature, are available but that can hardly be a ground to deny the relief to the complainant under the Consumer Protection Act. The point taken up in the ground of appeal in this respect only deserve to be mentioned to be rejected.
When a young girl had suffered fracture of the arm proper treatment was required to be given to her. If the appellant had provided imperfect treatment ruining her future prospects in life, on leniency deserves to be taken in favour of the appellant. No doubt on the question of disability some better evidence could be made available but that does not mean that the complainant is to be totally deprived of the compensation. A reasonable and just compensation is required to be fixed in such cases even in the absence of actual loss having been suffered. Rather it is very difficult for taking a strict view in the matter of fixing of compensation in the matter of minor child who had to bear with the loss, for life time. The amount of compensation awarded in the present case is just and reasonable, which does not call for interference in this appeal.
Result :Appeal dismissed with cost.
ORDER
Mr. Justice A.L. Bahri, President - District Forum, Faridkot on March 25, 1998 allowed complaint filed by Malkeet Singh against Nachhatar Singh Tohra. A direction was given to the opposite party to pay a sum of Rs. 50, 000/- out of which Rs. 10,000/- to be straightway paid to Malkeet Singh, complainant whereas the remaining amount of Rs. 40,000/- payable to minor Gagandeep kaur was ordered to be deposited in the State Bank of Patiala, Faridkot in Special Term Deposit till attainment of majority. The said order has been challenged in this appeal filed by the opposite party, Nachhatar Singh.
2. On May 15, 1997 Gagandeep Kaur, a minor daughter of Malkeet Singh suffered fracture on her left arm. She was taken to the opposite party, Nachhatar Singh who used to provide treatment for Fractured bones. On charging fee of Rs. 500/- Nachhatar Singh applied plaster of paris on the arm of Gagandeep Kaur. A prescription for medicines was also got prepared at his dictation. On subsequently visit, he charged Rs. 150/-. In spite of this, there was no cure. Ultimatel, the patient was taken to a docotr who provided necessary treatment. In all the complainant had to spent Rs. 40,000/- to Rs. 50,000 /-. In the complaint filled before the District Forum a sum of Rs. one lac was claimed as compensation on account of loss suffered due to deficiency in rendering service on the part of the opposite party.
3. Nachhatar Singh Tohra contested the complaint by submitting his version. All the allegations made by the complainant were denied. He denied having given any treatment to Gagandeep Kaur. He also denied having got prepared the prescription slip. In fact he did not give any treatment much less charging of fees. Replication was filed by the complainant reiterating the stand as taken up in the complaint. Both the parties led their evidence on affidavits and documents. The District Forum while holding deficiency in rendering services allowed the compensation as referred to above.
4.We have gone through the grounds of appeal and have heard Counsel for the respondent. it is asserted on behalf of the respondent that at no stage the complainant disclosed any representation having been made by the opposite party, proclaiming to give treatment for fractured bones. No such sign board was displayed at the outside the house of the opposite party inviting patients for treatment. Even the complainant did not assert that he hired the services of the appellant or that the appellant had agreed or promised to set the bones right. It has further been asserted in the ground of appeals that without any medical evidence no findings regarding negligence on the part of the opposite party could be arrived at. It is further asserted that so-called prescription slip is not of medicines but is of ghee, sugar and grounded gram etc. (tonic) to strengthen the body. The District Forum wrongly asserted and described the appellant as a quack. From a quack the skill of a doctor was not expected. The complainant cannot be treated as a consumer as no fees were changed.
5. We have given due consideration to such like assertion as taken up in the ground of appeal. But we find no merit in this appeal. As per evidence of Malkeet Singh (two affidavits produced by him), the fractured bones were exposed as found on the child and the opposite party had put plaster. This treatment was not proper. In the complaint specifically it was asserted that the plaster was applied on the first day. No doubt putting plaster is one of the modes of treatment of management of bones. However when bones were exposed putting of the plaster was not specifically denied. The argument as in the grounds of appeal that medical evidence in the form of expert witness should have been produced to prove negligence cannot be accepted in the facts of the present case. The complainant produced X-ray, Ultrasound and Prescription Slip and referred to the same in his affidavit. Thus such documents could be relied upon. On ultrasound fracture of the bone was observed and prescription of the doctor indicated debridment having been done suggesting that cells on the skin were dying which were removed. There is no merit in the assertion that only from medical expert negligent act could be proved. Admittedly, the appellant is not a qualified doctor. Whatever knowledge he had gained from his experience in giving such treatment, may be, but that does not authorise him to provide such services on charging fees. The very fact that unqualified persons attempted to render services of a doctor on charging fees will amounts to quackery as has been rightly described in the impugned order and their continuance cannot be encouraged.
6. Poor people should expect poor quality of medical service cannot be made a rule. It is for the protection of such poor people that Consumer Protection Act has been enacted to safegaurd their rights. May be other remedies, criminal in nature, are available but that can hardly be a ground to deny the relief to the complainant under the Consumer Protection Act. The point taken up in the ground of appeal in this respect only deserves to be mentioned to be rejected.
7. When a young girl has suffered fracture of the arm proper treatment was required to be given to her. If the appellant had provided imperfect treatment ruining her future prospects in life, no leniency deserves to be taken in favour of the appellant. No doubt on the question of disability some better evidence could be made available but that does not mean that the complainant is to be totally deprived of the compensation. A reasonable and just compensation is required to be fixed in such cases even in the absence of actual loss having been suffered. Rather it is very difficult for taking a strict view in the matter of fixing of compensation in the matter of minor child who had bear with the loss, for the time. The amount of compensation awarded in the present case is just and reasonable, which does not call for interference in this appeal.
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SMT. BETI BAI SAXENA v. DR. S.L. MUKHERJEE
III (2001) CPJ 251
Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d) – Medical Negligence – Deficiency in Service - Moping Gauze piece left in the wound while performing operation – Complaint dismissed by Forum – Hence appeal - Appellant continuously suffering from pain, pus oozing out from the wound - Allegation proved by the opinion of Medical Expert – Deficiency in service on behalf of opposite parties proved - Order of Forum set aside – Complainant entitled to compensation.
Held : In the instant case, we find that so far as the operation part is concerned, doctor has performed operation as per medical norms and ethics but they have taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Department of Orthopaedic in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze inside the wound and, therefore, they are responsible for deficiency in service.
Result : Appeal allowed
ORDER
Mr. B.L. Khare, Member – This is a complainant’s appeal against the order dated 30.11.1999 passed in Case Nos. 277/93 by the District Consumer Disputes Redressal Forum, Jabalpur (for short the District Forum).
2. The facts giving rise to this appeal are that the appellant Smt. Beti Bai Saxena was suffering from server pain in hips so she approached to respondant Nos. 1 and 2 the father and the son who are Orthopaedic Surgeons, running a clinic as P.G. Hospital. The respondent No. 3 is Insurance Company with whom respondent Nos. 1 and 2 insured for medical claim if any medical contingency arises. The respondent Nos. 1 and 2 examined the appellant and found that appellant was a chronic patient of EXOSTOSIS and advised her operation for removal of extra bony growth in right hip-joint. The appellant was admitted in the hospital of respondent Nos. 1 and 2 as indoor patient on 18.8.1992. The operation to remove bony growth in right hip joint was performed on 20.8.1992. The appellant was admitted in the hospital upto 3.9.1992 , on this date she was discharged from the hospital thereafter appellant returned to her house which is situated at Udaypure, District Raisen. When there was no relief in pain she approached again respondant Nos. 1 and 2 on 21.9.1992 for examination. The respondents told her that she will have to be operated again. The appellant had lost faith in the respondents doctors, therefore, she did not continue the treatment of respondent Nos. 1 and 2 and consulted another doctor Dr. Jitendra Jamdar on 23.9.1992. Dr. Jamder examined the appellant and advised some medicines. The appellant continued the treatment of Dr. Jamdar for five months. When there was no relief, so the appellant came to Bhopal and consulted Dr. B. Das who is an Orthopaedic Surgeon. Dr. Das examined the patient on 16.3.1993 and recommended that an operation will have to be done so after one month on 16.4.1993 an operation of right hip joint was performed by Dr. Das in Suresh Nursing Home at Bhopal. During this operation, Dr. Das found a Moping Gauze piece inside the wound, it shows that Dr. S.L. Mukherjee, the respondent No.1 and his son Dr. Abhijeet Mukherjee, the respondent No.2 have acted in a negligent manner while performing the operation of appellant. Moping Gauze piece was left by them inside the wound, therefore, the appellant had to suffer continuously and there was pain and pus was coming from the wound. It is the allegation of the appellant that respondent Nos. 1 and 2 have not taken proper care while performing the operation of right hip joint. Thus for medical negligence and deficiency in service the appellant approached the District Forum and claimed a compensation on Rs. 1,62,003.30 paise from the respondents. The District Forum after examining the evidence adduced by the parties found that there was no negligence on the part of the respondents. On the other hand, it was the complainant who was negligent in changing doctor after doctor, therefore, found that the complainant had failed to prove the allegations of medical negligence, therefore, rejected the complaint and ordered the complainant to pay Rs. 2,000/- to the respondents as costs of the proceedings. It is against this order, the complainant has preferred this appeal.
3. The main contention of the complainant was that it was the respondent Nos. 1 and 2 who acted negligently while performing operation and a Moping Gaze piece was left by them in the wound. This could happen only when after operation dressing is done. The doctors have not taken proper care to clean, wash and negligently left the Moping Gauze piece in the wound due to which the wound could not heal up and there was continuous pain and formation of pus in the wound for which she has to approach several doctors for treatment and spent Rs. 62,000/- in the treatment. She claimed this Rs. 62,000/- together with Rs. 1,00,000/- as compensation for mental and physical agony.
4. The respondent Nos. 1 and 2 denied the allegations and submitted their own affidavit and affidavits of Dr. Sanjay Khanna who is anaesthetist and Dr. Rajeev Bhandari, who was assisting the operation. The District Forum has analysed the case at length and has recorded the finding in the case. The respondents have submitted that they have performed the operation on 20.8.1992 and kept the patient in the hospital. They conducted all the investigations required for conducting operation. The Exostosis which was developed near the right hip joint of the appellant was cut and removed. On cutting any bone the raw bone surface has a tendency to bleed slowly by a process called “oozing”. This blood collects inside the wound sometimes and forms a solid blood clot. The blood clot slowly liquifies inside the body to form a collection of liquid called “Haematoma” within one to few weeks after the operation. They submitted that it is not an unusual thing to happen in case of EXOSTOSIS. If the volume of haematoma is small, it gets absorbed, but, if the volume is large, it tends to leak out of some place in the original stitched wound or any weak spot in the skin. In the present case, they stated that they had checked that the bleeding has stopped from the operated area, the wound was closed by them. They took all precaution while performing operation, therefore, there was no question of leaving a Moping Gauze piece inside the wound. The respondents further made clear that during surgery a Moping Gauze piece of size 5″ * 5″ cannot remain inside the wound because mopping swab is always with a tag which is clamped with a forceps outside the wound so that it is visible. They have stated that they checked and re-checked the operated area so strictly for fresh bleeding before applying the stitches. In the event of a big surgical mopping swab left inside the wound, there will be tremendous tension in the tissues on applying the stitches, then there will be difficulty in closing the wound. Therefore, they submitted that they have not acted negligently during the operation and also while closing and stitching the wound. In reply, the respondents further stated that after operation, post operative care was duly taken and when the wound had perfectly healed, the stitches were removed and the patient was discharged from the hospital on 3.9.1992. In his affidavit respondent No. 2 Dr. Abhijeet Mukherjee in paras 5, 6 and 7 has stated that small gauze pieces are not used in operation theatre of their hospital, large sponge of atleast 10″ *10″ are used in their hospital and these sponges have radio opaque lining which can be detected in any post operative X-Ray, hence, if any sponge remains inside the wound, it can be easily detected through an X-Ray. No such X-Ray has been filed by the complainant to prove that the Moping Gauze piece was inside the wound. Then respondents admitted that on 21.9.1992, the appellant visited them with complaint of swelling and pain at the place of operation and on this , they examined the patient and found that there was some discharge of blood from the wound through a small opening, therefore, they dialated and enlarged the small opening and removed the haematoma. After removing haematoma, fresh bleeding started which was packed by a Gauze to stop bleeding and the appellant was advised to come after 2-3 days for removal of gauze packing. After that the patient did not visit their hospital and consulted several other doctors. They have specifically denied that they have advised for second operation of the appellant. Because the patient did not visit after 21.9.1992, therefore, they are not responsible for any complications developed later on. They have also drawn our attention to the certificate given by Dr. B. Das of Bhopal dated 26.6.1983 which read thus :
“Smt. Beti Bai Saxena 60 yrs. F BPL.
Operated on 16.4.1993 for Discharging sinus from Gluteal region Rx – Over Gv. TR
Wound has healed following surgery a foreign body (mopping gauze piece about 5″ * 5″ with a tag in one corner) was removed from inside the muscle mass of Glutei. Wound has completely healed following removal of F.B. Needs no treatment.
Signed
(Dr. B. Das)
26.6.1993.”
5. In the affidavit Dr. Das has stated that when he performed operation on 16.4.1993 he found a Moping Gauze piece of 5″ * 5″ under Skin Fat and Muscles. The plea of the respondents that the Moping Gauze piece was found between Fat and Muscle is not corroborated by Dr. Das. The District Forum while analysing the affidavit of Dr. B. Das has given a finding that the gauze piece was found between skin and fat.
6. We have gone through the evidence and find that at the time of giving discharge certificate, Dr. Das has mentioned that the Mopping Gauze piece was found inside in the muscle mass of Glutei and in his affidavit he has also stated that the Mopping Gauze piece was found below skin, fat and muscle, while, the District Forum has mentioned that the gauze piece was found between skin and fat which is not corroborated with the affidavit of Dr. B. Das, therefore, this finding of the District Forum is erroneous. Dr. Das has further stated in his affidavit that if any foreign body remains inside the body then it forms a sinus and the wound does not heal up and pus remains coming out from that wound. In the affidavit, Dr. Das has stated that when he examined the patient, he found that at the first place of operation, pus was oozing and when he removed the foreign body i.e. gauze piece the wound was cured and the patient was alright.
7. From analysis of the complaint and affidavits adducing evidence, it is clear that the appellant was continuously suffering from pain and the pus was oozing out from the wound that means a sinus was formed and the pus was coming out from the wound. The affidavit of Dr. Das makes clear that the gauze was below the muscle, therefore, as per opinion of Dr. Das the pus was coming out from the wound. In the case, therefore, on the basis of affidavit of Dr. Das, the usual inference is that there was some negligence at the time of first operation which resulted forming of hoemotoma and pus oozed out from the place of first operation, therefore, the finding of the District Forum is erroneous and cannot be sustained.
8. True, the medical negligence cannot be attributed if a doctor was followed the discipline and the ethics provided in Medical Books and if the doctor has acted with reasonable degree of skill and care, then he cannot be said to be negligent. but in the instant case, we find that so far as the operation part is concerned, doctor has performed operation as per medical norms and ethics but they have not taken proper care while closing the operated area and left a mopping gauze piece inside the wound. Therefore, this is a case of medical negligence.
9. To conclude, we find that the appellant has proved by the opinion of Medical Expert Dr. B. Das, who was Head of the Department of Orthopaedic in the Medical Colleges that the respondents were negligent while closing the wound and they left gauze piece inside the wound and, therefore, they are responsible for deficiency in service. We, therefore, find that due to this negligent act of the respondents, the appellant was constrained to approach other Doctors, Dr. Jamdar and Dr. B. Das and she was required to pay additional fee of Rs. 24,752.85 paise and Rs. 15,415.30 paise in all total of Rs. 40,168.15 paise.
10. So far as fees paid to the respondents is concerned, it was for the hospital charges and the operation performed by the respondents. Therefore, we do not take that fees into consideration. We, therefore, are of the opinion that the respondents shall pay jointly or severally amount of Rs. 40,168.15 paise towards the expenses incurred in treatment and compensation of Rs. 25,000/- for mental and physical agony and Rs. 3,000.00 as cost of the proceedings throughout, within a period of two months from the date of receipt of certified copy of the order failing which the total amount of Rs. 68,168.15 paise shall carry interest at the rate of 9% per annum from the date of this order.
11. In view of the above , the appeal is allowed. The order of the District Forum is set aside. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case.
Appeal allowed.
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NADIYA v. PROPRIETOR, FATHIMA HOSPITALNADIYA v. PROPRIETOR, FATHIMA HOSPITAL
III (2001) CPJ 572
(i) Consumer Protection Act, 1986 - Section 2(1)(g) – Medical Negligence - Deficiency in Service – Negligence in Surgery – Compensation – Complainant got admitted for surgery for increasing height – Surgery conducted – Ring fixator fixed – Left leg remained shorter by 3/2 inch – A healthy girl of 17 years, needs the aid of walker after the surgery - Burden on opposite parties to substantiate their case that complication developed later on - Burden not discharged by filing affidavit – Negligence and deficiency in service established – Complainant entitled to compensation.
(ii) Vicarious Liability – Doctor employed in the hospital – Hospital vicariously liable for the tortious acts of employees during the course of employment. (Para 12)
(iii) Insurance – Professional indemnity policy for doctors and medical practitioners – Insurance Company liable to indemnify the hospital to the extent of amount covered by the policy. (Para 12)
Result : Complaint allowed.
ORDER
Mr. Justice L. Manoharan, President - Complainant, a minor represented by her father seeks for a direction to pay compensation on the allegation of negligence committed in the surgery conducted by the second opposite party, doctor who was then working in the first opposite party hospital.
2. The allegation in brief is that the complainant aged 15 years and a student of VIII Standard had a height of 135 cm. which for her age since was felt to be less, attracted by the advertisement Exbt. P19 approached the first opposite party hospital in July, 1996 where the second opposite party assured her increase in the height of 10 cms. in six months by surgery and the charge for the same was fixed at Rs. 32,000/-. In view of the same she got herself admitted on 24.7.1998 in the first opposite party hospital and her right leg below the knee was operated on 25.6.1996 and the left leg below the knee was operated on 1.8.1996. A ring fixator was fixed on the legs; the one on the right leg was adjusted from 2.8.1996, and one on the other was adjusted from 10.8.1996, the same had to be adjusted every six hours. The staff of the hospital was not trained for the said purpose and the father of the complainant was instructed to attend the same as per the instruction of the doctor, and he was attending the same. The fact that the nurse and staff were not equipped to attend the same itself would amount to negligence. On 16.9.1996 she was discharged with instruction that every 15 days X-ray has to be taken and has to be consulted. At the time of discharge the length of the two legs were not the same and hence she could not walk. By September, 1996 pain increased and when she met the second opposite party she informed him as to the same but he consoled her stating that the ring fixator adjustment must be continued. By the same the feet as well as the leg below the knee got curved. Later when she met him in the same month he instructed her to stop the adjustment of the ring fixator o nthe left leg and to continue with respect to the right leg. Afterwards she was required to stop adjustment of the ring fixator for the right leg also and in April, 1997 the ring fixators were removed and plaster was applied. But the left leg was short by 3/2 inches, the second opposite party said that the same was due to the curve in the lower part of the leg. As per the instruction of the second opposite party physiotherapy was being continued. On 17.9.1997 operation was conducted on the left foot and on 1.11.1997 skin grafting was also conducted. Though the difference in the length of the leg was brought to the notice of the second opposite party he got wild and instructed to continue of the physiotherapy. A physiotherapist was engaged to attend the physiotherapy at her home and the same was intimated to the second opposite party. Since the length of the left leg is shorter, she leans on the left; there was also deformity for the foot. After the operation on 25.7.1996 she was bed-ridden till March, 1998. A home nurse had to be appointed. Every 15 days X-ray had to be taken and the second opposite party was being consulted. The deformity and the disability of the complainant is on account of the negligence in conducting the aforesaid surgery. She had to incur an expense of Rs. 2,43,000/- for the operation and hospital expenses. Apart from the same, she has to incur other expenses for future treatment also, therefore, the opposite parties are liable to compensate the complainant for the said injury caused to her due to their negligence.
3. In the version by the first opposite party it is contended, the hospital is a reputed one having several qualified doctors in different specialities and also has qualified staff. The second opposite party is a qualified doctor and the deficiency in service alleged by the complainant is not true or correct; but admits that the complainant was treated in the said hospital, the treatment given to her is borne out by the hospital records and she was given the best possible treatment. She has no cause of action against this opposite party. The nurses attached to the hospital are well-qualified and well-trained. The allegation of negligence is denied.
4. In the version by the second opposite party he contended that he