Tamil Nadu

StateCommission

FA/109/2018

M/s.Apollo Hospital Enterprises - Complainant(s)

Versus

C.Kavitha - Opp.Party(s)

K.Krishnamoorthy

08 Feb 2022

ORDER

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI  ... MEMBER

 

F.A. No.109 of 2018

 

(Against the Order, dated 06.02.2018, in C.C. No.51/07,

on the file of the DCDRC, Chennai-South)

                                          

                                    

                                Orders pronounced on:   08.02.2022

            

1. M/s.Apollo Hospitals Enterprises Ltd.,

21, Greams Lane,

Opp. Greams Road,

Chennai 600 006.

 

2. M/s.Apollo Hospitals Enterprises Ltd.,

rep. by its Managing Director,

21, Greams Lane,

Opp. Greams Road,

Chennai 600 006.           … Appellants / Opposite Parties

 

vs.

 

C.Kavitha,

D/o.Chellam,

No.4/3, Pillayarkoil Street,

West Mambalam,

Chennai 600 033.            … Respondent/ Complainant

 

Counsel for Appellants  : M/s.K.Krishnamoorthy

Counsel for Respondent  :  M/s. T. Sivagnanesambandam

 

          This First Appeal came up for final hearing on 16.12.2021 and, after hearing the arguments of both sides and perusing the materials on record and having stood over consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J - President.

             Challenging the Order, dated 06.02.2018, passed in C.C. No.51 of 2007 by  the District Consumer Disputes Redressal Forum, Chennai (South), in and by which, the Complaint came to be allowed in part by directing the Opposite Parties to pay the complainant Rs.1,16,234/- towards medical expenses with interest @ 9% p.a. from the date of  Complaint till the date of order, Rs.25,000/- for mental agony and Rs.5,000/- towards costs, the aggrieved Opposite Parties have come up with the present First Appeal.  

 

             2. For the sake of convenience, the parties are referred to herein, as per their rankings before the District Commission.

 

             3.  In brief, the case of the complainant is that, on 06.11.2005, after being hit by an Auto, she had sustained injuries and fracture in the right arm, whereupon, she was admitted in the Opposite Parties/Hospital, where, the Doctors, after examination, told that a surgery was to be done for the fracture in the right hand and accordingly, she was performed the surgery and, on 11.11.2005, she was discharged from the Hospital.  Thereafter, she was visiting the Opposite Parties/Hospital for follow-up and, at one point of time, she was informed that, since the first surgery was not successful, she should undergo another surgery.   When the father of the complainant asked the Doctors as to the need for a second surgery, no proper explanation was given by them.  Having spent Rs.1,16,234/- towards medical expenses, only due to the deficiency of service on the part of the Opposite Parties/Hospital, the complainant was compelled to undergo a second surgery, thereby, she not only suffered mental agony & pain but also sustained monetary loss.  Therefore, she had sent a legal notice on 25.05.2006, for which, only an interim reply was given stating that a detailed reply would be given within 6 weeks therefrom, however, no reply was forthcoming.  Hence, left with no other option, she filed the Complaint, seeking to direct the Opposite Parties to re-pay to her Rs.1,16,234.60/- incurred towards medical expenses and  Rs.7,00,000/- towards mental agony and pain, altogether Rs.8,16,234.60.

 

             4. The Complaint was resisted by the Opposite Parties by stating among other things that, on 06.11.2005, the Complaint came to the Hospital and stated that, at 8.40 AM., she had sustained injuries/fracture in the right arm/elbow after being hit by an Auto, as her shawl was caught in the Auto.  After admission and examination by Dr.Madan Mohan Reddy, she was diagnosed to have  supra condylar fracture on right humerus with vascular injury.  Subsequent to discussions with Vascular Surgeon Dr.V.Balaji, she was treated for supra condylar fracture right humerus/vascular injury on 06.11.2005.  She had right brachial artery repair with vein graft and ORIF (Open Reduction and Internal Fixation) with plate osteo synthesis right supra condylar distal humerus and fasciotomy on the same date, on emergency basis.  At the time of discharge on 11.11.2005, she was advised to come for review on 19.11.2005, with an advice not to lift weights or to do strenuous works, but, she came for review only on 09.01.2006. The x-ray taken for the humerus showed good healing of the bone.  On 19.01.2006, she was advised to continue physiotherapy for the elbow.  She met Dr.Madan Mohan Reddy on 09.05.2006, who was the treating Doctor, with complaints of swelling and pain in the right elbow and the Doctor advised her to go for an x-ray in the right elbow and the x-ray report revealed breakage of implant, hence, she was advised to undergo re-osteo synthesis and grafting.

             It is incorrect to state that the Doctors of the Opposite Parties/Hospital had advised for a second operation due to any failure of the first operation.  The father of the complainant was duly informed about the approximate expenses for the treatment and he agreed to the same; therefore, the complainant cannot have any grievance in respect of the bills raised at that point of time.    The surgery was successful and she was discharged after proper medical advice. The Opposite Parties strongly believe that the complainant must have fallen or over-strained herself, which might have caused the breakage of implant.  All  material facts have been suppressed conveniently and the Complaint filed against the Opposite parties is with ulterior motives to extract money, hence, it is liable to be dismissed.

 

             5. In order to prove the averments in the Complaint, the complainant filed proof affidavit and marked 6 documents as Exs.A1 to A6, while the Opposite Parties marked 28 documents as Exs.B1 to B28, apart from filing proof affidavit.

 

             6. The District Commission, by the impugned order, partly allowed the Complaint and issued the directions as stated supra, based on its finding that a careful perusal of the records indicated that there was no fracture or dislocation of the joint except the breakage of implant and that there is no record available to sustain the claim of the Opposite Parties that the implant used in the surgery was a standard one; as such, there is deficiency in service on the part of the Opposite Parties. Aggrieved thereby, the Opposite Parties have come up with the present Appeal.

 

             7.  Heard the submissions made by the learned counsel for the Opposite Parties.  No representation for the complainant.

 

             8. The complainant laid her claim in the Complaint by alleging medical negligence/deficiency of service on the part of the Opposite Parties in performing the surgery.  On the contrary, it is the emphatic stand of the Opposite Parties/Hospital that the surgery was successful and that, during discharge on 11.11.2005, she was specifically advised to come for the review on 19.11.2005 with a clear advice-cum-warning not to lift weights/indulge in over-straining, however, she did not turn up for the review/further follow-up but leisurely came only on 09.01.2006 and, at that time, good healing was noted. On 09.05.2006, when  she came complaining of swelling and pain in the right elbow, an x-ray was taken and the Report revealed breakage of the implant.  The treating Doctor/Madan Mohan Reddy found out the reason that it must be due to a fall or over-straining by the complainant, since the complication complained of is almost 6 months after the surgery.    It is also the stand of the Opposite Parties that the Implant used in the surgery was a manufacture of an internationally reputed Company (Synthes), which has US FDA approval.

 

             9. On the face of the above claim and counter-claims, on a careful perusal of the entire records, we could see that, nowhere in the Complaint, there is a whisper or pleading to the effect that the breakage of implant was due to use of any sub-standard material.  Also, the complainant did not choose either to examine the medical expert or the Orthopedic Surgeon/Dr.Madan Mohan Reddy, who treated her, or to file any supportive medical literature, so as to elicit the negligence or deficiency of service on the part of the Opposite Parties. In order to undo the emphatic clinical opinion of the Doctor of the Opposite Parties/Hospital to the effect that only a fall or over-straining must have caused breakage of the Implant, the complainant failed to come up with any concrete material in the form of expert evidence or cross-examination to pinpoint that the breakage was only due to sub-standard material of Implant or because of any negligence on the part of the Medical Practitioner while performing the surgery.  When the complainant, except some vague averments in the Complaint, as pointed out already, not even pleaded about the exact reason for breakage of implant that led to a second surgery and also failed to adduce contra medical evidence so as to draw an inference of negligence/deficiency of service against the Opposite Parties, unfortunately, the District Forum, without any proper discussion, proceeded to hold against the Opposite Parties as if the burden of proof lies on them.  On the contrary, in support of their stand that the breakage of implant must have happened only due to a fall or because of abnormal strain, the Opposite Parties have filed the medical literature “Implant Failure in Osteosynthesis of Fractures of long bones by Alfred O.ogbemudia”.   As per the said medical literature, there is a possibility of implant breakage due to fall or over-straining.  When  the complainant did not adduce any contra medical evidence to rule out the same,  the vague pleadings projected without any substantive allegation would, in no way, advance her claim. 

 

         10. While so, without assigning any reason to discredit the contention of the Opposite Parties that a fall or strenuous work alone must have resulted in the breakage of the implant, particularly when the said aspect assumes much significance over the delayed visit of the complainant for the review on 09.01.2006 instead of the scheduled slot on 19.11.2005, the decision of the District Forum in awarding the amount on sympathetic grounds, that too based on surmises and guesswork, is absolutely unwarranted.  When there is no pleading at all about the quality of the Implant material, the District Forum proceeded to pointlessly hold that there is no record to prove that the implant used in the surgery was a standard one. Also, there is absolutely no discussion in the impugned order to deduce that the Doctor concerned did not follow the standard procedure and his conduct fell below the standards of a reasonably competent practitioner in his field or the Hospital did not properly institute the treatment.  The District Forum also failed to appreciate and apply the general principle that, in matters where medical negligence is alleged, such allegation has to be proved by examining an expert and, in the absence of such expert’s evidence indicating negligence, a Doctor cannot be held to be negligent in treating the patient.  Looking at any angle, we see no good reason to sustain the impugned order passed by the District Commission, since it suffers from serious flaws and blatant errors.

       

             11. In the result, the First Appeal is allowed by setting aside the impugned order, dated 06.02.2018, passed in C.C. No.51 of 2007, by the DCDRF, Chennai-South, as devoid of any merit. No costs.

 

S.M.LATHA MAHESWARI                              R.SUBBIAH, J.

MEMBER                                                      PRESIDENT.

 

Index    :  Yes  / No.

 

ISM/SCDRC/Chennai/Feb/2022.