C.C.NO.432/2008

Tuesday, the 29th day of December, 2009

P.A. Davis,S/o. P.D. Antony,

16/12, Narayanasamy

Gounder Layout,4th Cross,

Rathinapuri,Coimbatore – 641 027. --- Complainant
Vs.
Doctor G. Balakrishnan,

The Balakrishnan Hospital,

205, 100 Feet Road,

Coimbatore – 641 012. --- Opposite Party



This case coming on for final hearing before us on 7.12.09, 16.12.09 and 23.12.09 in the presence of , Thiru. Vincent R. Raj Advocate for complainant and, Thiru.N. Sridhar Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a sum of Rs.15,250/- towards the illegal fees for testing consulting and surgery collected by the opposite party to the complainant, to pay a sum of Rs.9,678/25 towards unnecessary expenses paid the operation charges, consulting fees etc paid to Ganga Medical Centre and Hospital Coimbatore for the corrective surgery, to pay a sum of Rs15,00,000/- towards compensation for the stress, pain and mental agony, suffered not only by the complainant but also his family and loss of earning and to pay Rs.5,000/- towards cost of the proceedings.

The averments in the complaint are as follows:

1. The complainant is having a lathe work-shop by name DD Engineering at Avarampalayam, Coimbatore and used to undertake job works. On 11.09.2008, met with an accident and his index, middle and ring fingers in the right hand got crushed and immediately he was rushed to opposite party hospital for treatment to the crush injury in the fingers in the afternoon. He was immediately issued a OP Card No. 48517 and after preliminary investigation by opposite party, asked to take X-Ray for the crush injury in opposite party hospital itself. The opposite party first asked to deposit a sum of Rs.5,000/- as advance and upon immediate compliance, informed that K wires to be inserted/instituted for middle and ring fingers.

2. He was immediately operated for three fingers and K wires inserted/instituted for the middle and ring fingers and discharged on the same day by 5.00PM by issuing paracitamol and some other tablets for five days and asked to come for review on 15.09.2008. An additional fee of Rs.10,000/- was paid on the same day before discharge. No discharge summary or post operative instruction issued. However the pain instead of subsiding steadily increased. On 15.09.2008, when this precarious condition was brought to opposite party notice during review, opposite party stated that the operation was successful but the pain will be there for some more days and instructed opposite party’s nurse one Mary to administer one injunction to relieve pain and she did the same and also handed over some tablets and asked him to come for review on 18.09.2008.

3. The complainant also privately taken an X ray on 15.09.2008 to ascertain the operation. The pain instead of subsiding, steadily increased and he could not sleep from the date of operation. Further he felt foul smell in the index finger and this was reported to opposite party on 18.09.2008 during review. Without attending what has been said by him, opposite party stubbornly denied the foul smell and asked one Mary and another Karuppaiah to clean the fingers before dressing. They poured sprit like item for cleaning which gave unbearable burning sensation in the index finger. When this was brought to opposite party notice, without attending it, as usual administered one pain killer injunction and advised to come on 20.09.2008 but unbearable pain and foul smell were there.

4. He again gone on 20.09.2008 and complained about the unbearable pain and foul smell in the fingers, opposite party did not ready to hear the same and was adamant in denying such foul smell and with help of above mentioned staff, repeated cleaning and dressing and advised to come on 22.09.2008 without taking any remedial action to relive the pain and foul smell. During dressing on 22.09.2008, he could see the suture opening in the ring finger and some oozing coming with foul smell. When this was shown to opposite party,opposite party pretended as if no foul smell coming and informed him to come on 25.09.2008 to remove the sutures. However unbearable pain and foul smell were there and opposite party did not heed and taken any remedial measures. On 25.09.2008, opposite party removed sutures and the condition of the fingers were as follows:



i. Right index finger : Tip was discoloured beyond mid pulp level with

avulsed naiil plate and foul smelling discharge

present.

ii. Right middle finger : Entire pulp discoloured with sloughed out nail bed and

K wire instituted and foul smelling discharge present.

iii. Right ring finger : Three fourth is discoloured with exposed TPX and K

wire instituted and foul smelling discharge present.

Movement of the finger painful.



5. On 26.09.2008, when he came to opposite party hospital, met one plastic surgeon Thirugnanam and he advised that there is no problem in the fingers and further stated that if undertakes plastic surgery, length of the fingers will be diminished. When demanded the opposite party to return of admission card taken on 25.09.2008, it has been informed that the same was misplaced and could not be retrieved. He again contacted one Major Kamalanathan, Ortho on the same day and he orally advised him to go to Ganga Hospital to save maximum length of the fingers. He admitted himself on 27.09.2008 at Ganga Hospital, Mettupalayam Road, Coimbatore with gangrenous tips of fingers and plastic surgery conducted and K wires were removed on the same day and discharged on 29.09.2008.

6. The discharge summary was never and ever handed over for further consultation and treatment. The opposite party acted against the law, ethics and against humanity with his evasive, illegal irresponsible acts coupled with the deficiency in service. Hence this complaint.

The counter Statement filed by the opposite party are as follows:

7. The above complainant is false, frivolous, vexatious and unsustainable both in law and on the facts of the above case. As per the directions of the Honourable Supreme Court of India, a complaint, unless accompanied by a report of an independent doctor or a panel of doctors that there is prima facie evidence of negligence, is not maintainable. The complainant admitted suffered a crush injury in his right hand. He came to this opposite party’s hospital on 11.09.2008 with the crush injury. On examination, this opposite party made the following observations.

a) Right ring finger - crush wound for ½ “ terminal part.

b) Ring middle finger - crush wound for ½ “ terminal part.

c) Ring index finger - crush wound fir ½ “ terminal part.

8. The opposite party had an x-ray taken and it showed fracture of the terminal phalanx of ring finger and middle finger.

9. After considering the injury suffered by the complainant. Opposite party took the necessary steps which are medically warranted. The wound was first cleaned up and in order to stabilize the injure tissue, k wire’ was fixed and the wound sutured. It is relevant to point out that fixing K wire is fist resorted to and the injury portion is sutured. Then time would be allowed for the wound to be healed. Then the wound would be examined and depending on the progress, further steps would be taken. Insofar as the complainant is concerned, after k wires were fixed, he was given antibiotics and pain killers. He was discharged on request and discharge summary was duly given. Thereafter, he came periodically and he was seen as an out-patient. If really, the discharge summary had not been given, the complainant would not have come to this opposite party as an outpatient.

10. During the third visit, the wound was seen and it was found that the complainant would require another operation on skin graft. On 15th day, the suture was removed and it was found that due to the impact of the crush injury the distal part of the fingers has become dry gangrene. For this a plastic surgery procedure, had to be done for removal of the gangrenous part. The views of Dr. Thirugnanam, plastic surgeon was sought and he was of the said view. However, the complainant did not come for the said procedure. It now appears that the complainant went to Ganga Hospital where he was treated. Ganga Hospital’s discharge summary has not faulted the insertion of K wires or any of the procedures. There is no Prima Facie Evidence of any negligence on the part of the opposite party.

The fundamental procedures involved in crush injuries are as follows:

a) insertion of k wires to fuse the injured portion.

b) Allow time for the injury to heal.

c) Remove the k wires.

d) If there is any gangrenous part, do plastic surgery for that

portion.

In the instant case, this is exactly what the opposite party performed. There is absolutely no negligence on the part of this opposite party. There is absolutely no cause of action for the complaint.

11. The complainant and the opposite party have filed Proof Affidavit along with documents Ex.A1 to A7 was marked on side of the complainant and no documents was marked on side of the opposite parties.

The authorities filed in favour of the complainant

1. II (2009) CPJ 61 (SC)

2. I (2009) CPJ 32 (SC)

3. III (2009) CPJ 17 (SC)

The point for consideration is

Whether the opposite party has committed deficiency in service? If so what relief the complainant is entitled to?

ISSUE 1

12. The Complainant on 11.9.09 met with an accident and his index, middle, and ring fingers in the right hand got crushed and took treatment in the opposite party hospital. The grievance of the complainant is that the opposite party failed to discharge his duties properly and correctly with acts of omission and commission and committed deficiency in his service.

13. The case of the opposite party is that the opposite party was very empathetic towards the complainant and was very considerate to him, the best possible treatment was given to him, and there is no negligence on the part of the opposite party.

14. The main allegation of the complainant is

i. The only record i.e, admission card issued by the opposite party was

purposely and forcibly taken back and not returned to the complainant.

ii. No proper care was taken during operation and hence gangrene, sever

pain and the foul smell due to the operation.

iii. Discharge summary was never handed over for further consultation.

iv. No proper suture was made and hence opening and oozing. No

v. No proper post-operative care for all regular attendance.

vi. In the absence of past history, unnecessary expenses for subsequent

vii. surgery.

viii. Failed to take complainant into confidence for all pain and suffering report and opposite party pretended as if nothing happened. Had to incur heavy further expenses with another hospital to save his fingers and his life.

15. The complainant admitted that he had suffered a crush injury in his right hand ie. In right index finger, right middle finger, and right ring fingers. As per the opposite party the procedure involved in crush injuries are as follows:

a. Insertion off ‘k’ wires to fuse the injured portion

b. allow time for the injury to heal

c. remove the ‘k’ wires

d. if there is any gangrenous part, do plastic surgery for that portion

The complainant has not questioned the medical correctness of the procedures adopted by the opposite party.

16. In the present case also the opposite party has given the similar treatment to the complainant. Moreover as per the opposite party for the last stage of procedure viz. performing plastic surgery, the complainant has gone to Ganga hospital and they have successfully done the same. The complainant has not questioned the medical correctness of the procedures adopted by the opposite party. Moreover in the absence of any expert evidence in favour of the complainant we are unable to accept the contention of the complainant that the opposite party has committed deficiency in service. As a matter of fact even in the Ganga hospital discharge summary they have not faulted the insertion of k wires or any of the procedure followed by the opposite party.

17. Moreover in the present case the expert opinion is also is not in favour of the complainant but in fact it is in favour of the opposite party. The expert opinion given by Dr.Rajasabapathy,M.S.Head of Microsurgeon, Ganga hospital is also form part of the record. The complainant has put 10 questions to the expert and the answers for question Nos.2, 4, 6, 7, 9, and 10 are totally in favour of the opposite party. The relevant portions are given below:

Q.No.2. At the time of his admission, his right index finger’s tip was discoloured beyond mid pulp level with avulsed nail plate and foul smelling and discharge were present. Is it correct?

Answer: Yes

Q.No.4. At the time of his admission, his right ring finger’s three fourth pulp was discoloured with exposed TPx and the K wire insitu. Foul smelling and discharge were present. Movement of finger was painful. Is it correct? The “Exposed TPx” may be explained.

Answer: Yes. The exposed TPx means that the terminal bone of the ring finger was devoid of soft tissue cover.

Q.No.6. In such crush cases, will there be formation of gangrenojs tips, foul smell and discharge, if regular treatment given for it?

Answer: There is a chance of formation of gangrenous tips even if regular treatment is given. The formation of gangrenous tips does not result from the suturing of the wounds or the insertion of K-wires, rather it depends on the magnitude and the type of injury sustained to the finger tips.

Q.No.7. In this case the crush injury was occurred on 11.9.08 and on the same day K wires were fixed in two fingers and all the three fingers were sutured and discharged on the same. He periodically went as directed for check up, dressing and medication for the following days:

15.9.08, 18.9.08, 20.9.08, 22.9.08 and 25.9.08. This is more or less regular check up and treatment. In such cases, in the normal course, is there a chance for the formation of gangrenous tips, opening of suture, foul smell, discharge and perennial and abnormal pain if proper treatment provided?

Answer: Yes. There is a chance since the blood supply to the finger tips is usually affected at the time of injury and not due to subsequent treatment.

Q.No.9. “In si-tu” means, in the natural or normal place, and confined to the site of origin without invasion of neighbouring tissues. Is the meaning of inference is correct? In case of invasion of neighbouring tissue, the formation of gangrenous tips, foul smell, discharge and perennial and abnormal pain will cover. Is it correct in the normal course of treatment, surgery, fixing of K wire etc?

Answer: The meaning of the inference is incorrect in context with the above case. Here it means that the K wires are present in the finger tips. This is merely a descriptive term and has no association with the complication mentioned.

There is no evidence of gross deviation from the accepted line of management of such an injury in the above mentioned case.

Q.No.10 Will there be constraint and continuous increase of unbearable pain and burning sensation, if the proper fixing of k wire insitu and suture correctly done?

Answer: May be present.

18. From the above said answers it is clear that the expert Dr.Rajasabapathy, M.S also is of the opinion that the treatment given by the opposite party is in order. Regarding the non-delivery of the discharge summary, if really the discharge summary had not been given the complainant would not have come to the opposite party as an out patient. Hence the complainant fails to prove this allegation also. Hence there is no evidence of any negligence on the part of the opposite party. For the above said reason we are of the view that the complainant fails to prove the allegations made against the opposite party.

In the result, this complaint is dismissed. No costs.
Pronounced by us in Open Forum on this the 29th day of December, 2009.

beware of advocates , people use your sense,