Shaik Mahaboob,
S/o. Khadar,
R/o. R.Agraharam,
Guntur. … Complainant


AND

1. The Amaravathi Institute of Medical Sciences Pvt. Ltd.,
Rep. by its Director,
Old Club Road, Mukku Narasa Reddy Complex,
Kothapet, Guntur.
2. Dr.S.Amaranath, M.S.,
The Amaravathi Institute of Medical Sciences Pvt. Ltd.,
Old Club Road, Mukku Narasa Reddy Complex,
Kothapet, Guntur.


O R D E R



This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant namely Shaik Mahaboob claiming compensation of Rs.4,00,000/- and Rs.70,000/- towards legal expenses together with interest @ 18% p.a. and cost of litigation from the opposite parties on the ground of medical negligence and deficiency of service.
Brief facts of case are as follows:


That on 20-10-2003 during night hours in between 9 and 10 pm, complainant was retuning to home in auto rickshaw after closing down his business. The auto rickshaw met with an accident, in which he sustained injury to his left leg from waist portion to knee joint. He was immediately taken to the hospital of opposite parties for treatment. Dr.S.Amarnath, Orthopedician who is running the hospital in the name and style Amaravathi Institute of Medical Sciences Pvt. Ltd. examined the complainant and also conducted clinical tests including x-ray at the effected portion of knee and immediately made arrangements for operation. The operation was conducted at about 10 pm on 20-10-03 and clamped the sutures. Thereafter, the patient was shifted to general ward for postoperative care for two days.


The complainant was in the hospital till 22-10-03 in the observation of 2nd opposite party and discharged. The complainant has also paid bill for an amount of Rs.2,750/- at the time of discharge and the complainant was prescribed medicines and advised to visit hospital for dressing as out patient regularly. Accordingly, the complainant has visited the hospital as out patient for dressing for two days. The complainant informed to 2nd opposite party about formation of thick black layer over the operated portion without any sense with severe itching sensation coupled with unbearable pain. The 2nd opposite party assured the complainant nothing to be worried about the problem and it would be taken in lighter way as unnoticed. The complainant again visited on 31-10-03 and complained about the same problem and increased pain.


As the complainant could not bear the pain and also uncaring attitude of 2nd opposite party, he has approached the clinic of Sri Athota Sathish Babu, M.S. on 01-11-03 to find out the cause. Dr.Satish Babu examined the complainant and gone through the prescription given by 2nd opposite party and advised that he needs operation as there was infection. Accordingly, on 02-11-03 Dr.Satish Babu opened the wound and examined the infected portion and found that there were foreign substances and dust and were removed and taken out the extraneous elements and taken sample piece of effected flesh and blood clot and sent them for analysis to ‘Zed Lab’. A large cavity was formed on the re-operated area after removing infected substance. This is due to negligent treatment and operation of 2nd opposite party. The complainant became handicapped and lost his natural vigor and vitality to his effected left thigh besides incurring expenses about Rs.70,000/- for treatment. He also met further expenses of Rs.10,000/- to 15,000/- for continuous treatment.


In the aforesaid circumstances, the complainant got issued legal notice dt.29-12-03 to the opposite parties demanding to pay compensation of Rs.4,00,000/- besides medical expenses about Rs.70,000/-. The opposite party received the legal notice on 30-12-03 but did not give any reply. Thus, there is a deficiency of service on the part of opposite parties and medical negligence. Hence, the complaint.


The 2nd opposite party filed his detailed version, which is adopted by 1st opposite party.


The opposite party denied all the allegations made in the complaint and call upon the complainant to strict proof of the same. Further it is submitted that there is no deficiency of service as defined in Section 2(1) (3) of Consumer Protection Act. As such the complaint itself is not maintainable under the Act. The complaint is also barred by limitation.



The complainant came to hospital of opposite parties at about 11.45 pm on 20-10-03 with road accident. The opposite parties have taken up the case expeditiously. Debridement and primary repair was done immediately and at operation it was noticed that the long saphenous vein was torn and bleeding, it was ligated and the bleeding was controlled. The wound was cleaned thoroughly by taking all necessary precautions and removed other contaminations as it was a road accident and stay sutures were applied as the skin was badly torned and a pressure dressing was applied because the long saphaneous is a very large blood vessel and it can produce severe bleeding.


It is further submitted that the complainant was discharged from the hospital on 22-10-03 at his request as he said that he can not afford hospital stay and left the hospital before completion of treatment. At the time of discharge, the complainant was advised to come to the hospital for follow up treatment regularly without fail, but in vain. It is submitted that the ‘black layer’ means ‘eschar’ as per medical terminology and it forms when tissue is deprived of blood supply as in the case of accidents. It is further submitted that it is the standard practice of Allopathy medical practitioners to wait till the eschar is fully formed before removing it, since it will avoid the need for further operations and can produce dangerous bleeding when blood vessels are injured and the eschar can be removed after waiting until it is fully formed (a process that can be taken upto three weeks).

It is submitted that the opposite parties have given treatment to the complainant in good manner by taking all precautions and they followed the procedure described in the standard text book of general surgery – Bailey & Loves, short practice of Surgery and they never neglected the complainant by giving the treatment before and after operation.


It is further submitted that the complainant did not turn up for follow up treatment as advised. But on 31-10-2003, the complainant attended the hospital without bringing discharge sheet for follow up treatment, because of that the 2nd opposite party given the prescription on small pieces of pharmacy papers.

The 2nd opposite party checkup the patient thoroughly and advised to get admit in the hospital as inpatient for removal of sloughs and skin grafting, but the complainant did not follow up the 2nd opposite party’s advise. It is submitted that the road traffic accidents are suspeciable to get infected because of that and it will not be possible to remove all the material from the tissues. The reason why the opposite parties waited till that time there is no evidence of infection before making up definitive treatment like skin grafting or suturing. The complainant made false and vexatious claim for compensation and other expenses. On the other hand, the complainant is liable to pay compensation to the opposite party to a tune of Rs.2,00,000/- for causing mental agony, defame of opposite parties and for mental agony. The complainant is no way entitled for compensation or for medical expense. Therefore, prayed to dismiss the complaint with exemplary costs.

Now the points for determination are that


1. Whether there is any medical negligence and deficiency of service on the part of opposite parties in conducting the operation to the left thigh of complainant and in taking post operative care?


2. Whether the complainant is entitled for compensation and medical expenses as claimed for?


3. Whether the complaint is barred by limitation as alleged by the opposite parties?


4. Whether the opposite parties are entitled for exemplary costs of Rs.2,00,000/- as claimed?


5. To what relief?


POINT No.1
The complainant filed his affidavit reiterating the facts as alleged in his complaint and got marked documents vide Ex.A1 to A38. In addition, the complainant also procured affidavit of Dr.Athota Sathish Babu, M.S. to show that he has conducted operation of effected portion of leg of complainant. Whereas, the 2nd opposite party filed his affidavit reiterating submissions made in his version. He also got marked documents Ex.B1 to B7. Except the above no other evidence is on record.


Before discussing merits in the case and analyzing of evidence, it is felt necessary to see some of the landmark judgments referred by the Apex Court and as well as National Commission.


In the case of Achutrao Haribhau Khodwa & Ors. V.State of Maharashtra & Ors., reported in I (1996) CLT 532 (SC)1996 (2) SCC 634. Their Lordships observed that in cases where the doctors act carelessly and in a manner, which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. Their Lordship further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing, negligence on the part of the doctor. It was held as follows:


“A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least, which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment, which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.

Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent aliment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.”
In the case of Jacob Mathew V.State of Punjab & Anr., III (2005) CPJ 9 (SC)III (2005) CCR 9 (SC)VI (2005) SLTI112 (2005) DLT 83 (SC)(2005) 6 SCC


1. The Court has approved the test as laid down in Bolam V. Friern Hospital Management Committee, (1957) I W.L.R. 582, popularly known as Bolam’s Test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew (supra) read as under:


(1)Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to herein above, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.


(2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.


(3)A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.


The facts of the case are not much in dispute except denial of negligent treatment on the part of opposite parties. The evidence (2nd opposite party affidavit) on record would show that the complainant who sustained injuries in a road accident on 20-10-03 while traveling in an auto rickshaw in Guntur town got admitted himself in the hospital of opposite parties in the same night at about 11.45 p.m. The complainant sustained bleeding injury on his left thigh between hip and knee. Immediately he was attended on by 2nd opposite party i.e., Dr.S.Amaranath.

The clinical tests were conducted and x-ray of injured parts were also taken, which is evident from Ex.A1. Debridement and primary repair was also done. Further operation was conducted on the thigh part of left leg. On doing such surgery, it was noticed that long saphaneous vein was torn and it was found bleeding. The same was ligated and bleeding was controlled. Thereafter, stay sutures were also applied as the skin was badly torned and pressure dressing was also applied. This is evident from operation record sheet vide Ex.B4. The opposite parties have also filed diagram of both the legs to show the location of long saphaneous vein.


A note is written there under that the saphaneous vein can give rise to torrential bleeding if it injured, which is evident from Ex.B1. To this extent of treatment done, there can not be any dispute between the parties. We are also of the opinion that immediate clamping of long saphaneous vein certainly saved the life of individual. Further the opposite party also claimed in his version and as well as in his affidavit that the wound was cleaned thoroughly by taking all necessary precautions and removed the contaminants. This aspect needs to be examined thoroughly as the same is disputed. According to the version of opposite parties, the complainant left the hospital on 22-10-03 himself as he was unable to afford further stay in the hospital. The case sheet vide Ex.B3 contained four sheets in all.


The first sheet shows the particulars of patient and as well as the doctor who attended on the patient. It is written “new admission, patient came to ‘B’ ward on 20-10-03 at 11.45 pm. Dr.S.Amaranath 21/10, 22/10. Discharged at request”
It is signed by Dr.S.Amaranath. But the similar entry about the discharge of complainant on his request is not entered in the case summary and discharge record supplied to the complainant, vide Ex.A3. The second sheet contains the entries with regard to BP and pulse rate on 21-10-03, 22-10-03 and 23-10-03. The third sheet also would show the entries dt.21-10-03, 22-10-03 and 23-10-03 with regard to BP and pulse rate. The daily report is also noted by the concerned nurses about the condition of patient. The patient vital signs are checked and recorded as stable.


The version of opposite party is that the complainant left the hospital on 22-10-03 itself on his own request and to that effect there is a note of the doctor in Ex.B3. But other sheets of Ex.B3 maintained by the concerned nurse shows that patient was examined even on 23-10-03. This discrepancy remains unexplained on the record. Of course, the complainant also admits that he was discharged on 22-10-03 in his complaint and paid the bill amount. However, he said to have attended for two days subsequently for follow up action and checkup. Therefore, it is quite possible that the case sheet vide Ex.B3 showing the entry dt.23-10-03 about the general checkup as out patient.

Further it is the submission of complainant that he attended as out patient on 23-10-03 and subsequently complained about the formation of black thick layer over the operated portion, which was causing severe itching sensation and unbearable pain. Whereas, the Dr.S.Amaranath (2nd opposite party) said to have convinced him by saying that nothing to worry about the problem and take it in a lighter way as unnoticed. Having heard the doctor in so saying, the complainant once again visited the hospital on 31-10-03 and complained about the same problem but the 2nd opposite party has prescribed the same medicines such as Phesin 500mb (10), NIZEZ (10), Vibact (5), which is evident from Ex.A4. These are the similar medicines which were already given to the complainant on 20-10-03 during his hospital stay.


It appears that the complainant due to unbearable pain and itching sensation and formation of thick black layer on the operated portion of the leg and due to uncared attitude of doctor i.e., 2nd opposite party he visited the clinic of Dr.A.Satish Babu who is running Sri Venkateswara Nursing Home, Lalapet, Guntur on 01-11-03. Dr.Satish Babu examined the complainant and found a large wound measuring 6X5 inches over the upper thigh in unhealthy condition with slough all over and on right leg a small Haematoma measuring 2x3 inches present over the middle of the shin and diagnosed wound infection.


Therefore, he has admitted the complainant in the hospital and operated left leg wound on 02-11-03. He has removed all the dead tissues and slough gangrenous material and fluid. Apart from the above he has also removed a small ‘rexin’ piece from the said wound. The muscles were exposed in some areas. He has also done I and D on the leg. The patient was in hospital till 14-12-03 and his condition was better at the time of discharge. He also observed that the complainant may need another surgery at a later date i.e., skin grafting for the wound on left thigh and advised to come for further dressing and follow up treatment. To this effect Dr.Satish Babu gave his affidavit.

This apart Ex.A30 to Ex.A33, hospital record maintained by Dr.Satish Babu would also show the same thing. The slough gangrenous material including the foreign body removed from the effected wound was also sent to ‘Zed’ Laboratory for analysis and report and a culture report was sent by Zed laboratory. The culture reports vide Ex.A8 shows organism isolated is Stephylo.Cocci grown in culture and specimen as pus. In the aforesaid circumstances, as the complainant suffered both physically, mentally and financially due to negligent treatment given by opposite party, he came before this Forum claiming compensation in the aforesaid manner.


Dr.S.Amarnath i.e., 2nd opposite party in his affidavit reiterated the facts as mentioned in his version. According to him at the time of conducting surgery on the complainant on the injured part of leg he said to have taken all precautions and thoroughly removed the contaminants. The question that prevails for consideration is that if he has taken such precautions and removed all contaminants, why the operated part became infectious and wound was formed with a black thick later? Secondly, a ‘rexin’ piece was also found in the effected wound, which was removed by Dr.Satish Babu. This has not been denied by the opposite parties anywhere in their affidavit or in subsequent arguments.

Because of presence of some foreign body in the operated part, it has been infected and the wound was covered with black thick later. Dr.Amaranath termed the black layer as eschar. According to him as per medical terminology it forms when tissue is deprived of blood supply as in the case of accidents. The medical dictionary shows the word ‘eschar’ as sloughing produced by a thermal burn or corrosive application. He has also filed diagram of such eschar covered wound with a note there under vide Ex.B2. The note shows treatment products available, protocol etc. According to him as per the standard practice of Allopathy, the medical practitioners have to wait till the eschar is fully formed before removing it, since it will avoid the need for further operations and can produce dangerous bleeding when blood vessels are injured and the eschar can be removed after waiting until it is fully formed (a process that can be taken upto three weeks).

This means that the black thick layer on the wound was not formed fully on the complainant and necessarily to be avoided for another 10 to 15 days. But the complainant suffered intensive pain and itching sensation over the part of wound and he was restless. The complainant immediately gone to Dr.Amaranath for subsequent follow up on 23-10-03 and 24-10-03 and again on 31-10-03. On all these occasions he was complaining about the same problem but Dr.Amarnath (2nd opposite party) never cared to relieve him from the problem. Whereas on approaching Dr.Satish Babu for the said problem, he got him admitted in the hospital and on the very next day performed surgery and removed all the infected slough gangrenous material including the piece of rexin (foreign body) and thus relieved the complainant from pain and suffering.

If at all it is necessary to wait for such a long time for formation of thick black layer despite of persistent pain and suffering of the patient, why Dr.Satish Babu has opened the wound and got removed the slough material including small rexin piece. From this state of affair, one can understand that there is no bar as per the medical standards if the wound is operated once again as it was sufficiently infected. An inaction in not attending to the patient and to open the wound in order to find out exact cause of the problem clearly amounts to negligence on the part of Dr.S.Amarnath. To cover up the same, he put forth the lame excuse before this Forum, such as, the complainant did not stay in the hospital for the required period due to financial constraints and that as per medical standards the doctor has to wait for three weeks for complete formation of black layer so as to avoid further operations etc. Even his own record does not show that the patient left the hospital against medical advice. As a matter of fact, the discharge summary supplied to the complainant does not show an entry about the discharge of complainant on his own request.

The discharge summary simply shows the prescription of medicines, except that nothing. If the complainant left the hospital due to financial constraints, why he would come to him again even as out patient on 23-10-03, 24-10-03 and on 31-10-03. On all these days he complained the same problem but he was never cared upon by the doctor. This apart very next day i.e., on 01-11-03 he visited another doctor with the same complaint and paid huge amount of fee for operation and also for treatment. Therefore, we are not convinced with the version made by the opposite parties that the complainant got discharged himself as he was not able to afford the hospital stay.


If 2nd opposite party was careful enough and thoroughly examined the injured part and removed all contaminants why the ‘rexin’ piece escaped unnoticed. There is no explanation for the same. The complainant before filing dispute before this Forum also got issued legal notice to the opposite parties, which has not been replied by them. The opposite parties tried to put forth their defense through their version only. Dr.Satish Babu has attended before this Forum personally and on the direction of Forum he has filed his affidavit. Subsequent to that 2nd opposite party filed questionnaire. There is no request on behalf of opposite party to send to expert in the field or to Dr.Satish Babu for answering the same. During the course of hearing also this point has not been canvassed before us. These circumstances lead to draw an adverse inference.


(I) In P.P.Ismail Vs.K.K.Radha, I (1998) CPJ 16 (NC) the complainant’s leg was operated and put under plaster by Doctor (OP1) at Hospital (OP2). Later x-ray revealed presence of foreign particle inside leg. Second opinion taken, emergency operation done to remove foreign substance and save her leg and plastered again. The complainant remained in hospital for 25 days. On allegation of medical negligence, the State Commission held that the opposite parties are negligent and there is deficiency of service and compensation awarded.

(II) The following instances are apparent to show deficiency/negligence in service by the doctors.


(a) The doctor does not give immediate treatment when required (may be that the doctor may be ‘over busy’)

(b) The post operative treatment is not given properly

(c) After operation, septicaemia or gangrene takes place
These factors very much do exist in this case. In view of the aforesaid discussion, we are of the considered opinion that there is negligence and deficiency of service on the part of opposite parties as alleged by the complainant. The point is answered accordingly.


POINT No.2

In determining the quantum of compensation, the following factors are to be born in mind. The medical expenses incurred by the complainant in going for second operation, the mental agony, pain and suffering from the date of conducting first operation till he has recovered after second operation, loss of vigour and discomfort etc. Ex.A7 to A29 and Ex.A35 are the medical prescriptions and bills amounting to Rs.28,048.75 ps. apart from hospital charges of Rs.11,310/-, which is clear from the affidavit of Dr.Satish Babu.

The complainant has suffered mental agony, pain and suffering and discomfort during that period. Therefore, keeping these factors in view, we feel it proper to fix the compensation for deficiency of service on the part of opposite parties to a tune of Rs.1,00,000/- which shall include medical expenses, damages for mental agony, pain and suffering and discomfort by the complainant. The point is answered accordingly.


POINT No.3


The complainant was lastly examined by 2nd opposite party on 31-10-03. Dr.Satish Babu conducted second operation on the complainant on 01-11-03 and he remained in the hospital till discharge on 14-12-03 with an advice to come for follow up action. The complaint is filed on 05-02-04. Therefore, the complaint is very much within the period of limitation. The opposite parties no way established as to how the complaint is time barred. The point is answered against the opposite parties.


POINT No.4

The opposite parties have claimed exemplary costs of Rs.2,00,000/-. In view of the findings given above, the opposite parties are no way entitled for exemplary costs. The point is answered against them.


POINT No.5

In the result, the complaint is allowed in following terms:
1. The opposite parties have committed negligence and deficiency of service and exhibited lack of care towards complainant in his treatment while conducting operation and post operative care. Therefore, the opposite parties are hereby directed to pay compensation of Rs.1,00,000/-, which includes medical expenses, mental agony, pain and suffering and discomfort of the complainant .


2. Further the opposite parties are hereby directed to pay a sum of Rs.2000/- towards cost of litigation.


3. Rest of the claim of complainant if any is hereby dismissed.


4. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order failing which it shall carry interest @ 9% p.a.