Tamil Nadu

South Chennai

CC/377/2018

Nalini Jayanthi - Complainant(s)

Versus

Dr. D Selvam & Others - Opp.Party(s)

Ln M R Surya Kumar

10 Apr 2023

ORDER

                                             Date of Complaint Filed : 04.09.2018

                                            Date of Reservation           : 10.03.2023

                                            Date of Order                     : 10.04.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No.377/2018

MONDAY, THE 10^th DAY OF APRIL 2023

Mrs. Nalini Jayanthi,

W/o. A.R.Janakiraman,

No.59, Kavarapalayam Main Road,

Avadi,

Chennai - 600 054.                                                                                                                    ... Complainant                

..Vs..

1.Dr. G.Selvam,

   Consultant Physiotherapist & Manual Therapist,

   No.3, Engineer Lane, Thirumalairajapuram,

   Avadi, Chennai - 600 054.

 

2.Dr.Sri Ram, M.B.B.S., M.S.(ORTHO),

   Reg. No.52120,

   SBF Healthcare & Research Centre Pvt., Ltd.,

   34, 1^st Cross Street,

   Ellaiamman Colony,

   Teynampet,

   Chennai-600 086.

 

3.M/s.SBF Healthcare & Research Centre Pvt., Ltd.,

   Wg.Cdr. (Dr.) V.G Vasishta,

   Founder & CEO,

   34, 1st Cross Street,

   Ellaiamman Colony,

   Teynampet,

   Chennai - 600 086.                                                                                                                ...  Opposite Parties

 

******

Counsel for the Complainant                  : M/s. M.R. Surya Kumar

Counsel for the 1^st Opposite Party           : M/s. P.V Sanjeev

Counsel for the 2^nd & 3^rd Opposite Parties : Exparte on 06.06.2019

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the 1^st Opposite Party, we delivered the following:

ORDER

I. Pronounced by the President Tmt. B. Jijaa, M.L.,

(i)      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay a sum of Rs.20,00,000/- to the Complainant and the Opposite Parties are all also liable to pay an interest @21% p.a on the total claim of Rs.20,00,000/- from 04.09.2016 till the date of realisation of entire payment.

II.     The averments of Complaint in brief are as follows:-

1.     The Complainant suffered pain in the both knee and went to 1^st Opposite Party Clinic to take treatment for knee pain. The 1^st Opposite Party compelled and forced the Complainant to undergo treatment in the 3^rd Opposite Party using Sequential Programmed Magnetic Field (SPMF Therapy Tm) for 21 days consecutively. On compulsion the Complainant constrained to take treatment in the SBF Health Care & Research Centre Pvt., Ltd., Teynampet during the month of August 2016. The Complainant briefed about previous treatment from B.M.Orthopaedic Hospital stating that she was diagnosed with stage IV OA of both knee, placed for bilateral total knee replacement as stage IV procedure, and it is not advisable to undergo for such SPMF Therapy. The 1^st  and 2^nd of Opposite Party assured if she would undergo a Sequential Programmed Magnetic Field (SPMF Therapy TM) for 21 days consecutively she would be perfectly alright. Believing their fictitious and false assurance given by 1^st and 2^nd of Opposite Parties, Complainant took treatment in the 3^rd Opposite Party Healthcare & Research Centre at Teynampet from 15.08.2016 to 04.09.2016. Before treatment all the precautionary investigations and diagnoses were done to ascertain the fitness of patient for Sequential Programmed Magnetic Field (SPMF Therapy TM) treatment and then only Complainant has undergone Sequential Programmed Magnetic Field (SPMF Therapy TM) by 1^st  and 2^nd of Opposite Parties. By not observing of Osteo Arthritis affected in both knees with stage IV OA wrongly directed Complainant to undergo Sequential Programmed Magnetic Field (SPMF Therapy TM) as a result now the Complainant is not able to walk and she lost her legs, and unable to move. The 1^st  and 2^nd of Opposite Parties to collect the exorbitant fees from Complainant gave high hopes and directed the Complainant to undergo Sequential Programmed Magnetic Field (SPMF Therapy TM). When the Complainant’s husband enquired about the nature of treatment given to Complainant, the 2^nd Opposite Party who were working in 3^rd  of Opposite Party SBF Healthcare & Research Centre Pvt., Ltd., admitted  stating that Osteo Arthritis stage IV is not advisable to undergo (SPMF Therapy TM, 1^st Opposite Party wrongly directed the 2^nd Opposite Party for want of money. Therefore due to the medical negligence of all of Opposite Parties, Complainant lost her two legs now her limbs are in question. Due to palpable carelessness, cheating, utter negligence, improper treatment and wrong diagnosis, the Complainant lost the precious movement of limbs. For the loss of limbs of Complainant at the age of 62 years, all Opposite Parties are jointly and severally liable to compensate. Thereafter the Complainant left with no other alternative consulted in the Private Hospital by spending Complainant earned money. After seeing the diagnosed result Complainant got utter shock. The diagnosed report given in the private Hospital stated that both legs severe OA with under deformity and placed for bilateral total knee replacement. Therefore it is crystal clear that Opposite Parties acted negligently, callously and carelessly with an oblique movie of making money out of misfortune apart from committing deficiency in service resulting in dereliction of duty and the complaint was registered and receipt CSR No. 63/2017, dated 11.01.2017, was issued to the Complainant.   Hence the complaint, praying for compensation.

III. Written Version filed by the 1^st Opposite Party in brief is as follows:-

2.     The opposite party submitted that the allegations against this Opposite Party No.1 are unfounded, untenable and devoid of truth and are neither supported nor could be buttressed by relevant and genuine documents. He had expressed good care and Professional skill in managing the Case. While attending the Complainant, the first Opposite Party Performed duty expected of a Prudent Doctor in Similar Circumstances. The Complainant came to the 1^st Opposite Party for treatment and that the first Opposite Party compelled and forced to undergo treatment in the 3^rd Opposite Party using SPMF Therapy for 21 days Consecutively during the month of August 2016 are totally false. The 2^nd and 3^rd Opposite Parties are doctor/ Hospital providing treatment and infrastructure/ facilities/Therapy etc. The 2^nd Opposite Party is making use of the said infrastructure/ facilities/ Therapy etc provided, whereas this Opposite Party as an employee of the third Opposite Party is only carrying out the advise/ instructions given by the second Opposite Party and hence this Opposite Party is in no way connected either with the advise or line of treatment given to the Complainant herein and therefore the Complaint against this Opposite Party has to dismissed inlimini. The Complainant herein have never approached this Opposite Party and she approached only the second and third Opposite Parties and that the second and third Opposite Parties only have decided the line of treatment to the Complainant and that the first Opposite Party was neither consulted or has given advise to the Complainant herein regarding the mode and line of treatment. This Opposite Party is carrying out the orders of the second and third Opposite Parties and is not responsible whatsoever for the facilities/Therapy offered by the third Opposite Party. The Complainant herein has no Complaint about the service rendered by this Opposite Party, instead gross negligence were attributed to the second and third Opposite Parties for the therapy/ SPMF Therapy offered /done by the second and third Opposite Parties by collecting huge money from the Complainant. The Opposite Party Dr.G.Selvam worked as a Phsyiotherapist in the third Opposite Party and was an employee of the third Opposite Party drawing a  salary of Rs 25,000/- Per month from July 2016 to May 2018. As Per the advise/instructions of the second and third Opposite Parties, SPMF Therapy was given by this first Opposite Party. This Opposite Party categorically states that neither there was any consultation, advise or treatment or Physiotherapy given to the Complainant herein on his (this Opposite Party)own behalf. There is no money/Consideration whatsoever received by the first Opposite Party in respect of the said SPMF Therapy. As far as the above said SPMF Therapy is Concerned, this Opposite Party had done his part successfully. There was no negligence/Complications during the said SPMF Therapy given to the Complainant. The Patient/Complainant did not encounter any difficulties with regard to the said SPMF Therapy as advised/treated by the second and third Opposite Parties. If there was any negligence on the Part of the first Opposite Party, the general Condition of the Patient would have been affected. Whereas the general health of the Patient remain to be normal. The 1^st Opposite Party gave false Promise and directed the Complainant to undergo SPMF Therapy and as a result, the Complainant was not able to walk and that she lost her legs due to the gross negligence of this Opposite Party was totally false, baseless and Vexatious and the Complainant herein is put to strict Proof the same with documentary evidence before this Hon'ble Forum. On the other hand, this Opposite Party submits that the Complainant herself admits that she had history of severe Pain, Swelling in both her Knees and unable to walk for the Past several years( more than 10 years). The allegations of the Complainant  are false and baseless. Hence prayed to dismiss the complaint.

IV. The Opposite Parties 2 & 3 set ex parte:

3.   Notice was sent to the opposite parties and was duly served to the 2^nd and 3^rd opposite parties. Despite the notice being served to the 2^nd and 3^rd Opposite Parties failed to appear before this Commission either in person or by an Advocate on the hearing date and not filed any written version on their side.  Hence the opposite parties 2 and 3 are called absent and set ex-parte on 06.06.2019. Subsequently, the case was proceeded to be heard on merits.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 and Ex.A-27. The 1^st Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 1^st Opposite Party, documents were marked as Ex.B-1 and Ex.B-9.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1 :

5.     The undisputed facts are that the Complainant had underwent Sequential Programmed Magnetic Field (SPMF Therapy) at the 3^rd Opposite Party Hospital for 21 days  from 15.08.2016 to 04.09.2016 as a treatment for her knee pain and subsequently on 10.11.2016 one B.M.Ortho Hospital, Ambattur performed total knee replacement of left knee for the Complainant. The dispute arose when the Complainant who was suffering from State IV Osteoarthritis was made to undergo SPMF Therapy, which is a wrong diagnosis and improper treatment according to the Complainant, due to which she had lost her legs and has become immobile.

6.     The contention of the Complainant is that she approached the 1^st Opposite Party to take treatment for her knee pain, who compelled her to undergo treatment in the 3^rd Opposite Party for SPMF Therapy for 21 days consequently. Inspite of showing all the certificate issued  in the previous treatment, the 1^st and 2^nd Opposite Parties forced the Complainant and assured that if she would undergo  SPMF Therapy for 21 days she would be perfectly alright. Believing their false assurances given by the 1^st and 2^nd Opposite Parties, the Complainant had taken treatment in the 3^rd Opposite Party from 15.08.2016 to 04.09.2016. After precautionary investigation and diagnosis to ascertain the fitness of the Complainant only, the Complainant had undergone SPMF Therapy but the Complainant was not able to walk and lost her legs due to the negligence of the Opposite Parties that knowing fully well that the Complainant is suffering from stage IV Osteo Arthritis. Further contended that the 2^nd Opposite Party who was working in the 3^rd Opposite Pary had admitted that Osteo Arthritis Stage IV is not advisable to undergo SPMF Therapy and that the 1^st Opposite Party had wrongly directed the 2^nd Opposite Party for want of money. Therefore the Opposite Parties failed to diagnose and give proper treatment nor attended to the immediate requirement to save her limbs due to the medical negligence of the Opposite Parties.

7.     The 1^st Opposite Party refuted the allegations that the Complainant had approached him and countered that he was an employee of the 3^rd Opposite Party and carried out instruction of the 2^nd and 3^rd Opposite Parties and no way connected with the line of treatment, he had only carried out the orders of the 2^nd and 3^rd Opposite Parties. Further there was no negligence/ complication during the said SPMF Therapy given to the Complainant and he did not encounter any difficulties with regard to such Therapy as advised/treated by the 2^nd and 3^rd Opposite Parties.

8.     A perusal of Ex.A-5 shows that during investigation made by the 3^rd Opposite Party the X-Ray revealed that the Complainant had arthritis in both knees, at Grade IV stage. She was advised for treatment using SPMF Therapy for 21 days consequently, for which treatment she had incurred expenses of Rs.1,18,700/- as seen from Ex.A-6. As per Ex.A-12, the Complainant complaining of bilateral knee pain for 10 years had undergone total left knee replacement on 10.11.2016. According to the Complainant the Opposite Parties had failed to  diagnose and give proper treatment which made her to lose her legs.

9.     The Treatment Summary and Invoices  marked as Ex.A-5 to Ex.A-9, were issued by the 3^rd Opposite Party. There is no document to show that the Complainant had initially approached the 1^st Opposite Party and that he had directed her to take treatment in the 3^rd Hospital. It is clear from Ex.B-1 to Ex.B-3, that the 1^st Opposite Party being a Physiotherapist was under the employment of the 3^rd Opposite Party drawing salary from them during the period when the Complainant undergone treatment with the 3^rd Opposite Party. As the 1^st Opposite Party had acted on the instructions from the 3^rd Opposite Party and had not received any consideration from the Complainant, the 1^st Opposite Party could not be made liable for the alleged improper treatment at the 3^rd Opposite Party.

10.    As regards the SPMF treatment given by the Opposite Parties when she was at Stage IV Osteo Arthritis, the 1^st Opposite Party had produced the following medical literatures

i) “Long-Term Efficacy of Sequentially Programmed Magnetic Field(SPMF) Therapy, in Patients with Osteoarthritis of the Knee, Published in Osteoarthritis and Cartilage 2011: 19(1):S147

ii) Sequentially Programmed Magnetic Field(SPMF) Therapy, as an effective treatment for  Osteoarthritis, our Experience, Published in Cartilage 2010: 1(2):134s

iii) Sequentially Programmed Magnetic Field(SPMF) Therapy, as an effective treatment for  Osteoarthritis published in 2^nd International Conference on Regenerative Orthopaedics and Tissue Engineering, 20-22, September 2012, Opatija, Croatia

11.    In the above references the conclusion was “ The result confirm significant improvement in the strength, stability and significant reduction of pain as shown in the TKS and TFS value. The result also shows significant regeneration of cartilage and progressive increase in the cartilage thickness in MRI, to show that SPMF being non invasive and without any side effect should be used as a first line of treatment for knee Osteoarthritis.”

12.    A reading of the literature would show that SPMF Therapy is a line of treatment for knee Osteo Arthritis, which was given to the Complainant by the Opposite Parties. As per Ex.A-12, the Discharge Summary of B.M.Orthopaedic Hospital where the Complainant got admitted after taking treatment with the Opposite Parties, the Complainant had bilateral knee pain since 10 years and that she was already suffering from Grade IV Osteoarthiritis and hence had undergone total knee replacement at the B.M.Orthopaedic Hospital.

13.    It is pertinent to show that there is nothing on record to show that the Opposite Party had not taken proper care and that treatment given by the Opposite Parties was improper which had resulted in any damage to the Complainant. The subsequent knee replacement at B.M.Orthopaedic Hospital is not due to the SPMF Therapy which the Complainant had undergone in the Opposite Party but due to her own complications of bilateral knee pain she was suffering since 10 years and was at Grade IV Osteoarthiritis.

14.    The Complainant has not established that the Opposite Parties were negligent in treating the Complainant. Hence, we found that that the allegations were not proved by the Complainant with relevant document and proper evidence as against the Opposite Parties.

15.    There is no expert evidence to allege that the procedure followed by them was not medically sound.  Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the Complainant, no negligence or deficiency in service could be found on the part of the  Opposite Parties. Medical negligence cannot be inferred it has to be proved by the Complainant by evidence supported by medical expert evidence which is totally absent in the instant case. 

16.    Therefore, we found that the Complainant has failed to establish any negligence or deficiency as against the Opposite Parties.  Accordingly, Point No.1 is answered.

Point Nos. 2 and 3:

17.    We have discussed and decided that there is no medical negligence or deficiency in service on the part of the Opposite Parties.  Hence, the Complainant is not entitled to get any relief as against the Opposite Parties.   Accordingly, Point Nos.2 and 3 are answered.

 

 

 

In the result the Complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 10^th of April 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	-	Newspaper Advertisement
Ex.A2	-	Online complaint on SBF Healthcare, Marathahalli, Bangalore
Ex.A3	-	Online complaint on SBF Healthcare, Marathahalli, Bangalore
Ex.A4	-	Online complaint on SBF Healthcare, Marathahalli, Bangalore
Ex.A5	15.08.2016	SBF Health Post Treatment Summary of Mrs. Nalini Jayanthi
Ex.A6	15.08.2016	SBF Health Post Consolidated - Invoice of Mrs. Nalini Jayanthi
Ex.A7	15.08.2016	SBF Health Post Treatment Summary of Mrs. Nalini Jayanthi
Ex.A8	15.08.2016	SBF Health Post Treatment Summaryof Mrs. Nalini Jayanthi
Ex.A9	15.08.2016 to 29.08.2016	SBF Health Care and Research Centre Pvt. Ltd., Payment Receipt Nos. 1 to 3 Amount Rs.1,25,050/- of Mrs. Nalini Jayanthi
Ex.A10	05.07.2019	B.M.Orthopaedic Hospital Medical Report of Mrs.Nalini Jayanthi
Ex.A11	07.11.2016	B.M.Orthopaedic Hospital Medical Report of Mrs. Nalini Jayanthi Copy
Ex.A12	21.11.2016	B.M Orthopaedic Hospital Discharge summary of summary of Mrs.Nalini Jayanthi
Ex.A13	09.11.2016 to 21.11.2016	B.M Orthopaedic Hospital Bills & Receipt NOs 1 to 17 of Mrs,Nalini Jayanthi  for amount Rs.1,90,679.90 Ps
Ex.A14	09.05.2017	B.M Orthopaedic Hospital Invoice of Mrs. Nalini Jaynathi
Ex.A15	08.05.2017 to 01.07.2017	B.M Orthopaedic Hospital Bills & Receipt Nos. 1 to 16 of Mrs Nalini Jayanthi for amount Rs.1,85,851.70Ps
Ex.A16	14.11.2016	Legal notice
Ex.A17	12.05.2017	Medical Bills
Ex.A18	-	Return RPAD cover of 2nd Opposite Party
Ex.A19	-	Return RPAD cover 3rd Opposite Party
Ex.A20	-	Police Complainant
Ex.A21	-	Complainant Family Ration Card
Ex.A22	-	Complainant Aadhar Card
Ex.A23	11.01.2017	Teynampet P.s C.S.R. No.63/2007
Ex.A24	-	Acknowledgement from Assistant Commissioner of Police
Ex.A25	11.01.2017	Acknowledgement from Inspector of Police, Teynampet Police Station
Ex.A26	20.05.2017	Original Bills
Ex.A27	21.11.2016	Discharge summary

 

List of documents filed on the side of the Opposite Parties:-

 

Ex.B1	25.06.2015	Appointment order issued by the 3rd Opposite Party
Ex.B2	-	Bank statement of salary account
Ex.B3	-	Educational qualification certificate
Ex.B4	-	Brochure issued by SBF Health Care
Ex.B5	-	Journal copy of SPMF Therapy for Osteo Arthiriis Knee issued by Ostea arthritis Research Society International (OARSI)54
Ex.B6	-	CARTILAGE showing the Efficacy of SPMF on OA Knee by International Orthopaedic Journal
Ex.B7	-	Abstract of the study of SPMF and OA Knee published at 2nd International Conference on Regenerative Orthopaedics and Tissue Engineering
Ex.B8	-	Testimonials of former teated patients with SPMF Therapy
Ex.B9	-	Journal copies stating the Severity of Grade 4 Ostea arthiritis Knee

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT