Date of Filling:      09.07.2015

                                                                                                                       Date of Disposal:  15.10.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.38/2015

MONDAY, THE 15^th  DAY OF OCTOBER 2018

T.M.Satyanarayanan,

No.6, Veeramamunivar Street,

Padvendar Nagar,

Sendurpuram Main Road,

Kattupakkam,

Chennai -600 056.                                                ……Complainant (Party in Person)

//Vs//

1.Dr.Jeyabaul RA.

   M/s.Apollo Hospitals,

   No.64, Off PH Road,

   Vanagaram to Ambattur Main Road,

   (Near Srivaru kalayana Mandapam)

   Ayyanambakkam, Chennai – 600 095.

2.Dean,

   M/s.Apollo Hospitals,

   No.64, Off PH Road,

   Vanagaram to Ambattur Main Road,

   (Near Srivaru kalayana Mandapam)

   Ayyanambakkam, Chennai – 600 095.

3.M/s.Apollo Hospitals,

   No.64, Off PH Road,

   Vanagaram to Ambattur Main Road,

  (Near Srivaru kalayana Mandapam)

Ayyanambakkam, Chennai – 600 095.                   ……. Opposite parties.

            This complaint is coming on for final hearing before us on 05.10.2018 in the presence of Thiru.T.M.Satyanarayanan, who has appeared as party in person and M/s.Maimoona Badsha Counsels for the opposite parties and upon hearing arguments on both sides, having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU S.PANDIAN, PRESIDENT.

This complaint has been preferred by the complainant Under Section 12 of the Consumer Protection Act-1986 against the opposite parties 1 to 3 for seeking direction to pay a sum of Rs.19,65,000/- toward compensation for causing mental agony, hardship and loss of money due to the gross medical negligence which leads to the deficiency of service on the part of the opposite parties1to3

2. The brief fact of the complaint are as follows:-

The complainant and his family for the past seven years have been treated in the Apollo Hospitals only.  The complainant went to Apollo Hospital, Vanagaram on 09.02.2015 with a wound on the right leg with swelling and redness.  When the complainant went to Apollo Hospital he was directed to the Emergency and Dr.Jeybaul has attended him.  He has advised to the complainant to go for an immediate surgery.  During the surgery Dr.Jeybaul has removed almost all the tissues between the two toes and ankle.  Then he was shifted to Ward (No.7416) and bed (No.35947), the complainant was there in the hospital from 09.02.2015 upto16.02.2015.

3. From 10.02.2015 onwards the complainant has undergone all the tests available in the hospital and it was found that there was no blood flow in the right leg and secondly infection was also found.  They did not start anything immediately with any strong antibiotic medicine to control the infection and to bring the blood flow in the right leg, but they were waiting for the blood flow and every day dressing was done and it ended with a collection of dead tissues.  So, the wound was growing bigger and the two toes went plea pink since the blood flow was not there.  On 11.02.2015, the plastic surgeon came with Dr.jeybaul RA for visit and said the two toes were dead and it has to be removed.  When he told this in front of the complainant that he was totally up-set and his mind was blocked.  When mind does not cooperate with body, healing will not happen.  As a Doctor they are supposed to know this, not to disturb the mind of the patient. Still we continued the treatment till 16.02.2015 and got a voluntary discharge and came home. There after three days went for dressing to Apollo Hospital from home and during this time the two toes in the right leg went black.

4. Through, one of our relative, the complainant had a second opinion from Parvathi Hospital.  Their confidence level made the complainant to get admitted in their Hospital on 23.02.2015.  As per Apollo Hospitals test reports, they immediately started the antibiotic and arranged for an angio-blast on the second day.  After angio-blast the blood flow came in the right leg.  Though they tried their level best to save the two toes but, they were unable to save the two toes which got amputed. And the next day they fixed the VAC machine and it drained-out all the infection from the wound. Within four days, the wound was ready for plastic surgery.  So hence the fourth toes and three fingers were saved.

5. After getting the culture test result, if Apollo would have started the antibiotic to control the infection, and if they would have done the angio-blast in the beginning itself, definitely the two toes would have been saved.  But unfortunately due to wrong treatment to the complainant, by Apollo specialty Hospital, the complainant lost two precious months of February and March.  Due to which the complainants performance level fell down and he could not get his promotion.  Lot of mental agony gone through for not able to get the promotion and most of the complainant peers have got the same.  In the second Month the complainant was lying in the bed and his condition was very bad.  Hence this complaint.

6. The contention of written version of the opposite parties is briefly as follows:-

The complainant is liable to be dismissed in limine for non-joinder of necessary parties.  The complainant failed to make Parvadhi Hospital as a party to these proceedings for reasons best known to him.  The complaint and the allegations therein have no value or sanctity without the involvement of the said hospital.  Therefore, an adverse inference may be drawn against him for his failure to implead the said hospital and this complaint may be dismissed on the ground of non-joinder of necessary party.  The Apollo Hospitals group, is owned and managed by Apollo Hospital, enterprise Ltd., (“AHEL”), Chennai, The 3^rd opposite party hospital is also wrongly named.  The entire allegations against the opposite party are based on the alleged treatment he received in the said Parathy hospital.  In the absence of these crucial documents, these opposite parties are not in a position to submit a response at this point in time that addresses all issues as alleged in the complaint.  It is evident such documents if they exist at all are in the possession of the complainant since he relies on them extensively.  Further, documents 5 produced by him clearly states the Blood investigation report are enclosed but he has failed to produce them and he has suppressed the same.  Therefore, an adverse inference may be drawn against him for his failure to produce these documents and this complaint may be dismissed on this ground also.

7. The opposite parties strongly object to Document Nos.5, 6, 9, 10, 11, 12: they are not substantiated by the author of these documents and do not have any evidentiary value.  That the material allegations mentioned in the complaint are not true, valid and tenable under law, and such of those averments and allegations which are not expressly traversed herein are not deemed to be admitted by the opposite parties and the complainant is put to strict proof of the same.

The opposite parties specifically denies all allegations, averments, contentions, statements and submissions made in the complaint, which seek to attribute any wrong doing and negligence on his part in administering treatment and to the extent that they are contrary to and inconsistent with the case of the opposite parties as setout hereinafter.  That, the 1^st opposite party is a highly qualified and well respected Medical professional, who completed his MBBS degree in the year 1975 from the prestigious Madras Medical College.  He served as a doctor in Chief of a Surgical Unit in Central Government ESI hospital Chennai between the years 1991-2011.  It is further stated that the opposite parties acted with due care and skill in administering treatment in the present case and did everything that is expected of a competent Medical practitioner.  There is not an iota of proof of any negligence/wrong treatment to sustain the complaint.

8. On admission the complainant informed the opposite parties that he had a history of Type 2 Diabetes Mellitus, hypertension and also coronary Artery Disease for which he underwent coronary Artery Byepass Graft and that this was for 10 years prior to admission on 09.02.2015.  on the date of admission it is found that his right leg was swollen with discharge of foul-smelling pus and according to the complainant the discharge had started three days prior to admission. A diagnosis of sepsis cellulitis was made-cellulites is a common skin infection caused by bacteria.  Cellulitis can trigger sepsis in some people.  The infection in diabetic patients is more difficult to treat and the healing process is extended.

9. It is submitted that from medical literature it is safe to conclude that (a0 Diabetic Foot is a common complication of Diabetes Mellitus (b) preventive measures are key to prevention of development of Diabetic Foot (c) injury/ulceration etc.  in a patient with Diabetes mellitus takes a longer time to heal than in normal patients (d) the condition can be brought on by poorly controlled diabetes mellitus.  According to the complainant two months before the admission in the 3^rd opposite party hospital, he had gone on a pilgrimage to Sabarimala before the onset of the ulcer and walked barefoot for several days on the rough terrain exposing his foot to injury and infection.  Further, he did not show his foot to a doctor for an extended period of two months which attributed to the acute nature of the infection and progressed state when he was admitted for the first time on 09.02.2015.  Also, the risks were very high in the case of the complainant because of his irregular habits in taking his medication leading to poorly controlled diabetes, a family history of diabetes Mellitus with both his parents having been diagnosed with the same and his father had also undergone an amputation due to the same causes such as uncontrolled blood sugar as in the case of the complainant.

10. Before his admission, on 22.09.2014 the complainant had undergone a Apollo Health check at the 3^rd opposite party hospital, herein.  This is a comprehensive health check-up which covers tests to detect multiple diseases to enable diagonosis of health risks and to advice patients on healthcare.  During the assessment and based on the tests conducted, it has been recorded in the Medical Summary that he is “Known type 2 DM-poorly controlled”.  An observation was also made that there was a reduction in the peripheral pulse.  He was advised to repeat certain blood tests relating to his blood sugar levels in first week and follow up with diabetologist with reports, and also advised to do an Arterial Doppler both legs because of the reduction in the peripheral pulse and was asked to come once again with the reports to the 3^rd opposite party hospital and meet the doctors with the reports.  However, he never returned with the reports sought any follow-up treatment.

11. As early as in 22.09.2014 it was indicated to the complainant that his diabetic condition was poorly controlled and he required a Doppler test because of the reduction in the peripheral pulse.  He neither followed the earlier instruction of the 3^rd opposite party, nor did he take sufficient care of his foot as he is fully aware is imperative, he exposed himself to the rough terrain during his pilgrimage and walked barefoot, did not consult a doctor on appearance of the ulcer and instead waited two months when his condition was severe, infection had set in to visit the 3^rd opposite party hospital.  This is a clear case where the complainant knowingly neglected his health condition for which there are known consequences.  His medical condition is solely due to the negligence by the complainant himself.  There was no negligence of deficiency in service on the part of the opposite parties which has caused the sequence of event leading to amputation as alleged by the complainant.

12. While it is true that the complainant had visited the 3^rd opposite party hospital and was seen by the 1^st opposite party in Emergency, it is incorrect to state that he was advised immediate surgery.  The first line of treatment was to salvage the foot and to carry out treatment that could in some manner, however remote the chances, prevent amputation.  Therefore, the complainant was not informed on the date of admission itself that he required surgery.

13. Multiple tests were prescribed by the opposite parties and a team of specialists examined the complainant and assessed his condition.  This included Culture and sensitivity test of tissue, blood samples & pus.  An MRI (Magnetic Resonance Image) was done to locate if there was any other pus pocket in the right leg and peripheral CT (Computerized Tomogram) angiogram a non-invasive test was done.  A Doppler test was also done to assess velocity of blood flow.

14. None of these tests indicated narrowing of the arteries in the leg that warranted an invasive angiogram and angioplasty.  The only finding was poor peripheral blood supply to the right leg.  This is consequence of the complainants pre-existing disease- coronary Artery disease and poorly controlled Diabetes.

15. The standard protocol of treatment was followed, the expert opinion of the specialists was obtained, dressing as required was done daily and the complainant and his wife were advised of the progress and prognosis on a daily basis.  Therefore, the opposite parties acted with diligence and care at all times.  No stone was left unturned to treat the complainant.  it is in no manner aimed at neglecting the complainant and causing the “Collection of dead tissues”.  As stated above even on the date of admission, the wound was highly infected and there was a collection of dead tissues and the complainant and his wife were apprised of the possibility of amputation.  Therefore, at that stage even if there was something to be done to increase blood flow that was not a possible solution to save the toes-sepsis cellulitis cannot be cured by increasing the blood flow.  It is not true that the wound was getting bigger.  In fact due to the care and treatment of the opposite parties the wound looked like it was healing.  However, that was still not a point in time amputation could have been ruled out.

16. The diagnosis and necessity of amputation was made based on the doctors, experience and expertise.  It may have caused the complainant distress as he states, however this is no reason for the wound not healing and suppressing known facts about a patients condition is unethical medical practice.  The chances of the body healing was in the case of the complainant is controlled by the condition of diabetes it is known that patients with diabetes have a very high risk of injury and slow healing.  That too in the case of the complaint, the diabetes was uncontrolled and poorly mentored by him and the wound was also neglected.  These are the determining factors in his case.

17. As per the complainants own submission he left the 3^rd opposite parts hospital by voluntary discharge.  This clearly goes to show that the complainant did not even complete the treatment and went against these opposite parties advice and discharged himself.  The complaint cannot foist the consequences of his actions of these opposite parties when he was not even willing to heed the advice of these opposite parties.  Instead, the complainant and his wife decided to opt for alternate therapy such as acupuncture as they informed these opposite parties.  He came for dressing only for two days and did not return after that.

18. Mere production of documents will not suffice for him to establish a case of negligence against these opposite parties.  Therefore, at this point in time, these opposite parties are not specifically traversing the alleged facts relating to the complainants alleged treatment in the said Parvathy hospital.

19. It is submitted that the claim for relief is without any basis.  There is not even a causal link between the alleged breach of duty and harm and the treatment rendered by the opposite parties and the subsequent amputation of his toes.  In the instant case there is no causation and link to the said amputation.

20. The complainant has filed this complaint for the sole purpose of harassing these opposite parties with a view to extract money from them.  This complaint has been filed based on surmises and conjectures.  This complaint is an abuse of process of the legal system.  These opposite parties do not admit any of the claims or reliefs made by the complainant.  Hence this complaint may be pleased to dismiss with exemplary cost and render justice.

21. In order to prove the case, on the side of the complainant, the proof Affidavit is filed as his evidence and Ex.A1to Ex.A14 were marked.  While so, on the side of the opposite parties, the Proof Affidavit is filed and Ex.B1 to Ex.B27 has been marked on their side.

22. At this juncture, the point for consideration before this Forum is:-

1. Whether there is any medical negligence on the part of the opposite parties as alleged in the complaint which leads to deficiency of service?

2. To what other reliefs, the complainant is entitled to?

23. Written arguments filed and oral arguments also adduced by both sides.

24.Point No.1:-

As per the averments of the complaint, it is alleged that, when the complainant admitted for wound on the right leg with swelling and redness in Apollo Hospital, Vanagaram, (3^rd opposite party hospital) on 09.02.2015 in the Emergency ward.  The opposite party 1to 3 have not properly treated as per prescribed procedure under Medical code and for the reason best known to them in giving treatment in order to prolong the days by simple treatment of dressing and bandaging the wound, the complainant has suffered much physically and mentally, and also has incurred huge expenses which clearly amounts for medical   negligence of the opposite parties 1to 3 which leads to deficiency of service on the part of the opposite parties 1to 3.

25. On the other hand, it is vehemently denied the allegations made in the complaint by the opposite parties 1to 3 herein and in fact the complainant is well known diabetic patient and was taken frequent treatment in different hospital because of his irregular habit in taking his medication leading to poorly controlled diabetes and in fact this is a clear case where the complainant knowingly neglected his health condition for which there are known consequences and thereby it is solely due to the negligence by the complainant himself and in fact the opposite parties have given proper and correct treatment from the being itself and analyses the medical factors by means of culture as well as Sensitivity test of tissue, blood samples and also pus pocket  in the right leg and peripheral CT (Computerized Tomogram) angiogram a non-invasive test was done and therefore there is no medical negligence committed by the opposite parties 1to 3 at any cast and no deficiency of service committed as alleged by the complainant.

26. At the outset, it is the prime duty of this Forum to consider as to whether the complainant has fulfilled his bounden duty to prove the above said allegations made in the complaint by means of relevant and acceptable evidence, which is the initial burden of prove of the complainant.  First of all, on perusal of the evidence adduced on the side of the complainant by means of Proof Affidavit and also on the side of the opposite parties 1to 3, it is crystal clear that the  complainant is a diabetic patient, taking treatment for the suffering of the diabetic in different hospitals on different occasion by the complainant and nearly for 8 days as an inpatient and got voluntary discharge by the complainant from the opposite party 1to 3 Hospital and even thereafter also the opposite parties have given same treatment to the complainant as In – patient by taking all different tests and scans etc., are all the admitted factors.

27. At this juncture, the first vital point has to be taken into consideration as to whether the delayed treatment as alleged by the complainant, is true and the same has been proved, Since delay itself amounts to medical negligence in some or other way.  In this regard, on careful perusal of the evidence of the complainant, it is stated that when he was In-patient on admission of the 3^rd opposite party hospital from 09.02.2015 to 16.02.2015 for the suffering of right leg diabetic foot, Type 2 Diabetic Mellitus, Hypertension and also Coronary Artery Disease S/P CABG and for the inpatient treatment the discharge summary (Ex.A1) was issued by the opposite parties 1to 3 hospital, which is one of the vital document to decide the factors of the complaint on hand.  On careful perusal of the evidence Ex.A1 the discharge summery of the Apollo Hospital (Op3) it is crystal clear that in the second page of the Ex.A1 in coloumn Surgical Examination, it is clearly stated (Foul smelling wound (+) over right 2^nd and 3^rd one and Oedema (+) over right foot). So it is clearly noticed by everybody and also by this Forum that is the clear case of Surgical Examination.  On further perusal of the Ex.A1 in page No.5,in the coloumn specifically mentioned as the CT SCAN PERIPHERAL ANGIOGRAPHY it is seen as below:-

Impression:

1. Mild diffuse atherosclerotic charges in abdominal aona and arteries of both the lower limbs.
2. Mild celiac and IMA ostial stenosis; no significant post stenotic dilatation.
3. High grade stenosis due to missed plaque involving the ostio-proximal segment of left internal iliac artory.
4. Mixed plagues in distal right SFA and popliteal artery causing 20 to 30% stenosis by diameter.
5. Distal anterior tibial, peroneal and dorsalis pedis arteries evaluation is suboptimal due to non opacification of lumen-Doppler evaluation recommended.

6.Diffuse bladder wall thickening-? Cystitis; cutaneous defect suggesting

               ulcer in the dorsal aspect of the right foot.

28. As per the above said (Ex.B27) scan report, findings clearly reveal the facts that there is a less blood flow to the lower limb that is foot. At this instance, in case of management of diabetic ulcer along with debridement of wound, adequate blood supply to the affected part must be established simultaneously. While being so, the opposite parties1 to3 have failed to do such kind of treatment which certainly caused delay in healing of wound and further it has deteriorated  the prognosis,  as already noted in the above paragraph regarding the fact of the surgical Examination.  When the complainant examined in the Hospital during the time of surgical Examination it is clearly mentioned in Ex.A1 as Foul smelling wound.  Such being so, Ex.A1 is a sufficient document, issued by the 3^rd opposite party that the condition of the alleged foot of the complainant was severe one and also the Ex.B9.

29. At this juncture, it goes without saying that, surgical intervention that is through acceptable minor surgical procedure the blood circulation to be established to the right lower limb/foot it is a primary duty of the doctor.  But in this case on hand, the doctor (Op1) who has examined and treated the complainant has failed to do so.   At this point of time, it is pertinent to note that, as per the pleading in his written version and evidences adduced on the side of the 1^st opposite party, it is categorically stated (Ex.B1 and Ex.B2) that he is highly qualified and well respected medical professional, and further he is a skilled person in administrating treatment. But in fact in respect of the treatment given to the complainant, the 1^st opposite party failed to do such necessary proper and adequate treatment to the complainant as prescribed in the medical procedure and code, in time, caused severe deterioration to his affected toes.  Such a critical situation, it is needless to say that there is no other go, unless the complainant compelled to go for another hospital for taking proper and further treatment out of fear and thereby the complainant went to PARVADHI HOSPITAL, CROMPET, CHENNAI-44 there his toes were got amputation and ultimately he has lost his two toes that two by surgery immediately removed.  The discharge summary for the period of admission and discharge in between 23.02.2015 to 27.02.2015 was issued by the PARVADI HOSPITAL is marked as Ex.A5.

30. More so, this Forum wants to enlighten that in Para No.9 of the written version filed by the opposite parties 1to 3 is categorically admitted the factors as follows:-

“ On admission the complainant informed the opposite parties that he had a history of Type 2 Diabetes Mellitus, hypertension and also Coronary Artery Disease for which he underwent coronary Artery Bye pass Graft and that this was for 10 years prior to admission on 09.02.2015.  On the date of admission from Ex.B7 and Ex.B8 it was found that his right leg was swollen with discharge of foul-smelling pus and according to the complainant the discharge had started three days prior to admission.  A diagnosis of sepsis cellulitis was made-cellulitis is a common skin infection caused by bacteria.  Cellulitis can trigger sepsis in some people.  The infection in diabetic patients is more difficult to treat and the healing process is extended”.

31. From the above recital of the admission, it is crystal clear that the infection in the diabetic patient is more different to treat and healing process will be extended one.  So, in respect of the treatment of the complainant herein, the 1^st opposite party ought to have known the standard care must be more serious and prompt by the doctor it is the foremost duty of the doctor who is taken care of the patient.  But that kind of care has been neglected and not come forward to give proper and appropriate treatment to the complainant which clearly amounts for medical negligence and ultimately it leads to deficiency of service because of the principle of standard of care has to be expected from medical professionals even from the ordinary person possessing ordinary skills.

32. In furtherance, in respect of the above principles this Forum wants to elucidate and evaluate the Extract from the articles (Ex.B3 toEx.B6)“diabetes foot infection” which is mentioned in the written version (Page No.4 and Page No.5, Para No.10)  - I and III as follows:-

I.Extract from the Article “Diabetic Foot Infection”

Journal: American Family physican-July-1, 2008, Volume 78, No.1

“In patients with diabetes, any foot infection is potentially serious.  Diabetic foot infections range in severity from superficially paronychia to deep infection involving bone.  Types of infection include cellulities, myositis, abscesses, necrotizing fasciities, septic arthritis, tendinities and osteomyelitis.  Foot infections are among the most common and serious complications of diabetes mellitus.  They are associated with increased frequency and length of hospitalization and risk of lower extremity amputation.  Foot ulceration and infection are the leading risk factors for amputation.  Prevention and prompt diagnosis and treatment are necessary to prevent morbidity, especially amputation”

III. Extract for the Article “Diabetic foot ulcers: pathogenesis and management.” (Para 10-III in page No.5)

Journal: JET Nurs.1993 Sep-Oct; 20 (5): 191-8.

“Delay in treatment of these ulcers is a major factor leading go gangrene and amputation.  The most important treatments of the ulcer are debridement to health bleeding tissue, proper culture and antibiotic therapy, identification of osteomyelites, metabolic control, keeping weight of the foot, and (when indicated0 peripheral arterial reconstruction to improve blood flow.  Therapeutic shoes to prevent recurrence of the ulcer are extremely important in post treatment of these ulcers.  Because of management of ulcers is complicated, the team approach and consultation are frequently necessary.  The most important steps in prevention of foot ulcers in the diabetic is repeated patient education in foot care”

33. From the above extract, it is learnt that foot infection are among the most common and serious complications of diabetic mellitus.  They are associated with increased frequency and length of hospitalization and risk of lower extremity amputation.  Foot ulceration and infection are the leading risk factors for amputation.  Prevention and prompt diagnosis and treatment are necessary to prevent morbidity, especially amputation. 

34. More so, the above said medical literature narrated in the written version of the opposite parties 1to 3 clearly enlightened that the diabetic foot having serious condition, it needs prompt and emergent treatment with utmost care.  Such serious condition has been clearly brought to the knowledge of the 1^st opposite party by means of taking various tests and also by means of scans.  So, it is needless to say that what is the duty bound of the 1^st opposite party who is immediately to do it.  In fact, in this instant case, the opposite parties 1to 3 have acted upon carelessly and negligently to follow the standard guideline and surgical procedure as per the medical code and jurisprudence.  Not only that on the case on hand, the opposite parties 1to 3 were very much reluctantly awaited for spontaneous healing of wound of the complainant by treating with conservative method treatment which may be called as trial and error method.  Such attitude and thought of a doctor (Op1) who has given treatment to the complainant being well qualified person should not have been shown least interest in treating his patient in such a way.  This shows that there is a lack of promptness on the side of the 1^st opposite party in this case. It clearly shows the gross medical negligence committed on the side of the 1^st opposite party which clearly amounts for the deficiency of service.

35. In a nutshell, it is crystal clear that the negligent act of the 1^st opposite party who was given treatment to the complainant is purely a deviation from standard of care and also it was an act of omission committed by the said doctor (Op1).  Therefore this Forum without any hesitation held that such violation of standard guidelines by doctor constitutes a medical negligence.  At this juncture, this Forum wants to enlighten that the following decisions rendered by the Hon’ble Supreme Court of India and National Consumer Disputes Redressal Commission, New Delhi which are squarely applicable to the facts of the case on hand.

I.1969 AIR 128, 1969 SCR (1)206.SUPREME COURT OF INDIA

Laxman Balkrishna Joshi                        …….petitioner

                                              Vs

Trimbak Bapu Godbole and anr.  ………..Respondent.

 “Deviation from normal practice is not necessarily evidence of negligence.  To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care”.

2016 (3) CPR 494 (NC)

Dr.S.P.Gupta&Anr.                                      …..Petitioners

                                      Vs

Sukhdev Raj Kaushal & Anr.                        …….Respondents

It is held that initial conservative treatment was not given to patient-it was a deviation from stand of practice-Also, it was an act of omission committed by doctors thus a medical negligence- Opposite parties directed  to pay amount as order by District Forum after deducting reimbursed amount received by complainant.

2016 (3) CPR 220 (NC)

J.Janaki                                                         ….Appellant

                                              Vs

M/s Yashoda Super Speciality Hospital      …….Respondents

The National Commission held that standard of care expected from medical professional has to be that of ordinary persons possessing ordinary skills.

36. On the basis of aforesaid discussion, it comes to clear picture that the doctor (op1) who has given treatment to the complainant,  who is a qualified and experienced doctor as narrated by the opposite parties themselves, the 1^st opposite party ought to have aware of the standard of care in treating the patient especially it has been specifically mentioned foul smelling wound sustained in the foot of the complainant and also scan report of the wound reveals the fact that it indicates surgical management to be done by the 1^st opposite party, he should have been given immediate and proper treatment by way of surgery.  Instead of, 1^st opposite party has simply given medical treatment by way of dressing and bandaging and prolonged treatment for some days unnecessarily.  In fact, as per the extract from the articles and journals placed on the side of the opposite parties themselves, the foot ulceration and infection are the leading risk factors for amputation.  Prevention and prompt diagnosis and treatment are necessary to prevent morbidity, especially amputation.  The most importment step in prevention of foot ulcers in the diabetic is repeated patient education in foot care.  While so, the 1^st opposite party has given some medical treatment on his own way simply by dressing and bandaging and prolonging the period of treatment cannot be accepted in the medical field and it makes it very clear that well knowing the risk factors and consequence of the delayed treatment by not following standard of care treatment is clearly reveals the facts of medical negligence.

37.  At that point of time, this Forum comes to conclusion that it is a clear, cut case to follow the principles of the maxim “Doctrine of Res Ipsa loquitor”.  Therefore, the concluded opinion of this Forum, arrived that the 1^st opposite party  has not followed the standard of care treatment and also delayed in giving proper treatment to the complainant and thereby the complainant was compelled to go over to another hospital for further management and proper treatment and in turn he had spent much more amount towards additional expenses which clearly amounts for the medical negligence committed by the 1^st opposite party which leads to the deficiency of service.  Moreover, the 1^st opposite party has attached with 3^rd opposite party and under the control of the 2^nd opposite party.  Hence, it is goes without saying that opposite party 3 is  liable on the principle of vicarious liability for the negligent act of the opposite party 1to op2 as per the following decisions:-

2016 (2) CPR 599 (NC)

Dr.Adwait Patil & Ors.                          …..Appellants

                                         Vs

Priya Shamrao Deshmukh & Anr.      ……Respondents.

The National Commission held that delayed treatment cannot be excused-hospital is vicariously liable for the act of the doctor.

38. In respect of the plea taken on the side of the opposite parties that in this case, the complainant has not proved the case by not producing the expert opinion for the allegations made against the opposite parties regarding the commission of medical negligence.  In this regard, from the aforesaid discussion in the previous paragraphs that the Doctrine of the legal maxim “Doctrine of Res Ipsa loquitor” is fully applicable to the facts and circumstances of the case on hand.  In such circumstances, the question of expert opinion has not been arise.  Moreover, there is no need of expert opinion in each and every case of medical negligence.  It depends upon the facts of the concerned case as per the decision follows:-

2016 (2) CPR 557 (NC)

Dr.V.K.Gupta                                     ………..petitioner.

                                              //Vs//

Krishan Kumar &Anr.                          …..Respondents.

It is held that in our view the expert opinion was not necessary in which and other case.  Hence, the contention on the plea taken by the opposite parties regarding expert opinion hereby rejected.

39. The next point contended by the opposite parties that the complainant himself voluntary discharged from the hospital.  On careful perusal of the documents and evidences it brought to the knowledge of this Forum that because of the prolonged and simple treatment of dressing and bandaging given by 1^st opposite party the complainant was forced to voluntarily discharge from the 3^rd opposite party hospital.  Moreover, even after voluntary discharge, the opposite parties 1 to 3 have given treatment as an outpatient by not following the standard of care and then only the complainant has gone for another hospital PARVADHI HOSPITAL, CROMPET,CHENNAI-44 for further management.  Such act of the opposite party clearly reveals the facts, as rightly pointed out by the complainant that for the reason best known only the opposite parties have followed such kind of prolonged treatment, which cannot be easily ruled out in toto.  Therefore, the said plea placed by the opposite parties holds not good.

40. The next point to be taken into consideration is that the opposite parties contended that because of the lethargic act of the complainant only foot of the complainant is spoiled and by taking some other way of ACCUPANCHER treatment in somewhere else.  If it is so, it is duty of the opposite parties to prove the same by means of consistent evidence.  But in fact they have failed to do so.  Similarly in respect of the plea of non – joinder of unnecessary parties, on going through the averments of the complaint and proof Affidavit of the complainant, it is crystal clear that there is not even a single claim sought against the said PARVADHI HOSPITAL, CROMPET, CHENNAI -44 on the side of the complainant.  While so, when the opposite parties contended in their written version that for some medical factors the impleading of the parvathi hospital is just and necessary in order to prove the contention of the opposite parties the burden of proof automatically shifted to the opposite parties 1to 3 and therefore they only bound to take necessary steps to implead the said hospital in this complaint or to call for any document from this hospital and the same to be used by way of examining any witness from the hospital.  But none of the steps taken by the opposite parties all along during the pendency of this complaint which clearly shows that the opposite parties have failed to fulfill their burden to prove and thereby such plea also can be rejected in toto.

41. On the basis of the aforesaid discussions this Forum without any hesitation held that the complainant has proved the medical negligence as alleged in the complaint against the opposite parties 1to 3 by means of concrete and consistent evidence beyond an all reasonable doubt.  Thus the point No.1 is answered accordingly.

42. Point No.2:-

Regarding this point, it is seen from the evidence and documents produced on both sides, the complainant was taken treatment in the 3^rd opposite party hospital nearly 8 days and for some days as an outpatient and spent total a sum of Rs.1,37,000/- as per the bills issued by the 3^rd opposite party hospital which are marked as Ex.A3 and Ex.A4 respectively.  These sufferings and problems have not been rectified by the 3^rd opposite party hospital and therefore out of fear the complainant was forced to go for an another hospital that is Parvathi Hospital, Crompet, Chennai-44 for further treatment and further management in order to rectify the suffering of the complainant.

43. At the outset, as per the Ex.A5 the discharge summary issued by the said Parvathi Hospital the complainant was admitted on 22.02.2015 to 27.02.2015 and in continuation  the complainant again admitted in that hospital on 04.03.2015 and discharged on 06.03.2015 and has incurred a total expenses in the said Parvathi Hospital amounts to Rs.2,27,250/- as per the Ex.A6(s), the bills issued by the said Parvathi Hospital which is the additional expenses spent by the complainant due to the delay in giving proper and necessary treatment of the opposite parties 1to 3.  Therefore the said expenses has to be born only by the 3^rd opposite party hospital.  From the above calculation, the total medical expenses spent by the complainant comes to Rs.3,64,250/- @  Rs.3,65,000/- as per Ex.A3 and x.A6(s)

44. At this juncture, other than the medical expenses, it is just and necessary to award reasonable compensation for causing mental agony, hardship and monitory loss which are caused fully of the medical negligence committed by the opposite parties 1to3 as arrived in the point No.1.  Not only that, the complainant is wandering from Banglore to Thiruvallur often to attend litigation the complainant is entitled for cost also. Further on considering all the facts and documents on hand, it is fare and reasonable to award a compensation of Rs.1,25,000/- and the cost of Rs.10,000/-

45. In respect of the other reliefs sought for on the side of the complainant, no relevant, acceptable and corroborative documents filed to prove.  Therefore, the same cannot be taken in to consideration.  Then specifically, the lost of right leg two toes, no expert opinion placed to say that the said toes have been lost only because of the medical negligence or otherwise in committing delay by the opposite parties 1to3.  More so, even the complainant approached subsequently the said parvathi hospital, Crompet the said toes have not been saved.  Similarly loss of professional promotion and increment and personal life and also in respect of documentation To & FRO & Miscellanies. nothing documents have been produced before this Forum so as to enable to arrive the correct calculation and hence in fact there is no iota of evidence produced on the side of the complainant for the above said relief sought for in the complaint.  Therefore regarding the above reliefs this complainant is not entitled for any award of compensation.  Thus the point No.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1 to 3 are jointly and severally liable and thereby directed to pay a sum of Rs.3,65,000/-(Rupees Three lakhs sixty five thousand only) towards medical expenses incurred by the complainant in both the hospitals viz. Apollo Hospital, Ayanampakkam and Parvathi Hospital, Crompet and also to pay a sum of Rs. 1,25,000/- (Rupees one lakhs twenty five thousand only) in total towards compensation for causing mental agony and hardship in otherwise, due to the Medical negligence committed by the opposite parties 1to3 which leads to the deficiency of service on the part of the opposite parties 1to3 and also to pay a sum of Rs.10,000/-(ten thousand only) towards cost of litigation of the complainant  (Total amount Rs.5,00,000/-(Rupees Five lakhs only).  Regarding other reliefs, this complaint is Dismissed.

 The above amount shall be payable within one month from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by president to the steno-typist, transcribed and computerized by him, correct by the president and pronounced by us in the open Forum of this 15^th October 2018.

                          MEMBER                                                                   PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties:-

-Sd-                                                                                                          -Sd-

MEMBER                                                                                       PRESIDENT