Kerala

Idukki

CC/187/2016

V M Mathew - Complainant(s)

Versus

Dr.Santhosh Joseph Mathew - Opp.Party(s)

Adv.V C Sebastain

30 May 2019

ORDER

DATE OF FILING : 29.6.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of May, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.187/2016

Between

Complainant : V.M. Mathew, S/o. Mathew,

Valiyapurackal,

Kudayathoor P.O.,

Idukki 685 590.

(By Adv: V.C. Sebastian)

And

Opposite Parties : 1. Dr. Santhosh Joseph Mathew (Ortho),

Department of Orthopaedics,

Holyfamily Hospital,

Muthalakkodam P.O.,

Thodupuzha, Idukki – 685 605.

(By Adv: Johnson Joseph)

2. The Administrator,

Holyfamily Hospital,

Muthalakkodam P.O.,

Thodupuzha, Idukki – 685 505.

 

O R D E R

 

S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that,

 

The complainant approached the 2^nd opposite party hospital on 21.6.2015 with the complaint of pain and swelling of left elbow following a fall from a staircase. On the same day itself complainant was admitted in this hospital as IP and treated there till 27.6.2015. The complainant was seen by 1^st opposite party and x-ray of the left elbow was taken and thereby surgery was done on 22.6.2015. He was discharged on 27.6.2015 for applying POP. In the mean time, complainant approached 2^nd opposite party hospital on 30.6.2015 due to some urinary problems and Dr. Jinson, the Urologist attended him and conducted a surgery for urinary problem and discharged on 7.7.2015. On 7.7.2015, the complainant visited

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1^st opposite party and as per the direction of 1^st opposite party, x-ray for the left arm was taken and applied POP on the left arm. Thereafter he was advised to take rest for weeks and review after that period for removing the POP.

 

As per the direction of 1^st opposite party, the complainant approached him on 21.8.2015 after 6 weeks of rest and again x-ray was taken and on examination of x-ray, it is seen that, the surgery was not success and no evidence of reunion of fracture. The 1^st opposite party further directed the complainant to take rest for further 2 weeks for the reunion of the bones. Thereafter on 9.9.2015, the complainant visited 1^st opposite party again and x-ray was taken and further directed that, the HOD of Orthopaedic department of 2^nd opposite party hospital was on leave and directed him to come on 11.9.2015 for further consultation with Dr. O.T. George, HOD of Orthopaedics. As per that, the complainant again came to the hospital and x-ray was taken on 11.9.2015 and found that the fracture is not healed and the re-union of the bones is failed. On the same day itself, the complainant consulted with Dr. O.T. George and C.T scan of the left elbow was taken as directed by Dr. O.T. George and while trying to consult with Dr. O.T. George, with the scan report, it is learned that Dr. O.T. George returned to his home. Then after gone through the scan report, the 1^st opposite party stated that the surgery is failed and the fracture is still existing and further directed the complainant to consult with Dr. O.T. George for further treatment.

 

Complainant further averred that the 1^st opposite party conducted surgery negligently and it was failed and 1^st opposite party denied the chance to consult the HOD, Dr. O.T. George, for further treatment. This is a gross deficiency in service on the part of 1^st opposite party. The complainant further averred that the 2^nd opposite party hospital, appointed Dr. O.T. George, as the head of orthopaedic department and declared that every patient will get advice of Dr. O.T. George, but the 2^nd opposite party hospital extending the service of junior doctors in the orthopaedic department on behalf of the specialist Dr. O.T. George, there is serious deficiency in service and unfair trade practice on the part of 2^nd opposite party hospital.

 

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The complainant further averred that eventhough he approached the 2^nd opposite party hospital and demanded to extend the service of Dr. O.T. George and to cure the defect in the surgery conducted by the 1^st opposite party, the hospital authorities denied to provide the service of the expert Dr. O.T. George. Hence the complainant forced to approach Dr. Prasad Varkey in St. James Hospital, Chalakkudy and treated there as in patient from 2.12.2015 to 8.12.2015. On examination there, it is revealed that the treatment given by 2^nd opposite party hospital is not proper and the plate and screw used in the 2^nd opposite party hospital were not recommended for this type of fracture. Moreover, at the time of surgery, eventhough 1^st opposite party noticed that some of the bones are broken, he has not cared to remove the broken bone pieces and conducted bone grafting. The doctor who treated at St. James Hospital opined that due to the failure in the surgery conducted by the 1^st opposite party, all these complications are happened. Due to the timely treatment in St. James Hospital, the ailment of the complainant was cured. The complainant further averred that the treatment provided by 2^nd opposite party hospital through 1^st opposite party doctor was very deficit and the 1^st opposite party doctor treated him very negligently. Due to this, complainant had suffered a lot both mentally and physically, moreover for the second treatment in St. James hospital. Complainant had to spend an amount of Rs.75000/- and that is only due to the irresponsible attitude of opposite parties 1 and 2. Hence opposite parties 1 and 2 are liable to compensate adequately for their short comings in this matter.

 

Hence the complainant filed this petition alleging deficiency in service and unfair trade practice against the opposite parties and prayed for getting relief such as to direct the opposite parties 1 and 2 to pay 1 lakh as compensation and loss of earning and further direct the opposite parties to pay Rs.75000/- towards the treatment expenses and Rs.10000/- as litigation cost.

 

Upon notice, opposite parties entered appearance and filed detailed reply version. In their version, opposite parties contended that the complainant came to the casualty in the 2^nd opposite party's hospital on 21.6.2015 with the complaint of pain and swelling of left elbow following a fall. The casualty medical officer had attended the case and prescribed

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analgesics and advised x-ray and x-ray showed comminuted fracture left olecranon. The complainant was seen by 1^st opposite party and he applied an above elbow slab. The patient and by-standers were explained about the nature of fracture and was admitted for surgical fixation of fracture. After explaining the pros and cons of open reduction and internal fixation with plates and screw and the risk and complication of infection, non-union, delayed union and implant failure etc. involved in fracture fixation. After fully aware of the surgical procedure, the complainant and his relatives consented for surgery. Under all aseptic care and caution, the 1^st opposite party conducted open reduction and internal fixation using reconstruction plate and screws under general anaesthesia under c-arm guidance. The fixation was satisfactory with implant used and good alignment was confirmed through c-arm images. The post-operative check x-ray showed fracture in good alignment and regular wound cleaning and dressing done and the wound appeared clear and healthy. On 27.6.2015, the complainant was discharged on request and advised follow up review. On 2.7.2015, the complainant underwent urology related surgery. On 4.7.2015, he was referred to orthopaedic department for review and cleaning and dressing was done and wound was found clean and he was advised limb elevation and active finger movement. On 7.7.2015, sutures were removed and after x-ray evaluation, above elbow POP cast was applied and advised discharge from orthopaedic department. The complainant was advised to continue with POP cast to 6 weeks. As per x-ray evaluation done before application of POP cast immobilisation the alignment of fracture was found acceptable. The opposite party further contended that, the complainant come up for review on 1.8.2015 and the duty orthopaedician had attended him, plaster cast was removed, x-ray was taken and on suspecting delay in re-union, the complainant was referred to 1^st opposite party after retaining POP slab. The complainant again reviewed on 9.9.2015 and on x-ray evaluation, his fracture did not showed satisfactory re-union and advised consultation with Dr. George and he suggested CT scan to access the status of re-union. Thereafter the complainant did not turn up for further review and lost follow up.

 

The opposite party denied the averment of the complainant that the 1^st opposite party after perusing the CT scan report admitted fault in the surgery and directed him to consult Dr. O.T. George. The further

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allegation that, the 1^st opposite party denied treatment pointing the fact that CT was taken as per the advice of Dr. George, is purposefully looked up with ulterior motive of undue gain. Opposite party further contended that there was absolutely no negligence or deficiency in service on the part of the 1^st opposite party at any point of time, in the treatment of the complainant. The fracture healing process, delayed union, non-union or mal-union etc. are reported complication and some cases may require corrective surgery and bone grafting later. The 1^st opposite party advised consultation with Dr. George for a second opinion regarding measures of management as radiological evaluation showed fractures of suspected non-union. The advice for consultation with senior doctor regarding opinion of further management is a routine clinical practice and there is no impropriety in it. The statement that the complainant was put to mental agony, physical hardship and financial loss by treatment of the 1^st opposite party is highly ill motivated. The plate and screw used by the 1^st opposite part for fracture fixation was proper for the nature of fracture caused to the complainant and satisfactory reduction was confirmed intra operatively under c-arm guidance and good alignment was evidenced on check radiological evaluation. Delayed union was not caused by the implant used for fixation and simply because 'L' shaped plate was used for fixation during subsequent surgery. It cannot be construed as implant used earlier was either unwanted or improper. During fracture fixation done by the 1^st opposite party, primary bone grafting was not indicated, anticipating difficulty in wound closure as well as for the reason that fracture was found to be in an acceptable position after reduction also. There was absolutely no fault in fracture fixation procedure and modality of treatment followed by the 1^st opposite party. In the light of the above mentioned facts, the 1^st opposite party is not liable to compensate the complainant either jointly or severally.

 

Evidence adduced by the complainant by way of proof affidavit and documents.

 

Complainant was examined as PW1. Exts.P1 to P4 marked. Ext.P1 is the copy of discharge summary of 2^nd opposite party hospital. Ext.P2 is the copy of discharge summary of St. James hospital. Ext.P3(series) are the bills. Ext.P4 is the x-ray films.

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From the defence side, 1^st opposite party was examined as DW1. Ext.R1 to R6 marked. Ext.R1 is the case sheet of the complainant. Ext.R2 is the x-ray film. Ext.R3 is the copy of the text book, Operative Orthopaedics (some pages).

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite party and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have heard the counsels for both the parties and had gone through the evidence on records.

 

1. The learned counsel for the complainant in his oral submission went through the complaint and drew attention to a few important issues. The first issue, the learned counsel pointed out that the hospital authorities decided the consultation of one Dr.George, who is the head of the orthopaedic department of 2^nd opposite party hospital, highly specialised person in the field of orthopaedics. The hospital authorities using the name of the doctor, to attract the patients having orthopaedic problems, but when a patient came to this department for consulting the expert, Dr. O.T. George, the 2^nd opposite party hospital authorities purposefully directing them to the junior doctors. In the present case, the complainant approached the 2^nd opposite party hospital only to consult with Dr. O.T. George. But he was given treatment by a junior doctor, that is, 1^st opposite party. This is an unfair trade practice followed by the 2^nd opposite party hospital.

 

2. The second point that put forward by the counsel is that, the surgery to the left forearm conducted by the 1^st opposite party was not proper and the internal fixation plate and screw used for the surgery was not as recommended. That is why the fracture was not united in spite of a long period of rest. The counsel further argued that when the surgery was failed and the non-response of opposite parties, complainant forced to approach St. Jame hospital, for getting a relief of pain and for a proper treatment. At there, the orthopaedic department conducted another surgery

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and removed the broken pieces of bones and done bone grafting. Only through he got relieved. So the surgery conducted by the 1^st opposite party was not as per the surgical procedure and he could not applied proper care and caution while conducting the surgery. Thereby the complainant caused much physical and mental pain as well as financial damages.

 

3. On the other hand, the learned counsel for the 1^st opposite party vehemently argued that after explaining the nature of fracture to the patient and his bystanders he was admitted for surgical fixation of fracture. Under all the aseptic care and precautions, the 1^st opposite party conducted open reduction and internal fixation using reconstruction plate and screws under general anaesthesia under c-arm guidance. The fixation was satisfactory with implant used and good alignment was confirmed through c-arm images. As per check x-ray evaluation done before application of POP cart, immobilisation the alignment of fracture was found acceptable.

 

4. The learned counsel further argued that on 1.8.2015, the duty orthopaedician was attended the complainant and plaster cast was removed and on evaluating the x-ray, it is found that there is delay in reunion and the complainant was referred to 1^st opposite party. The complainant was again reviewed on 9.9.2015 and on x-ray evaluation, his fracture did not showed satisfactory union and hence the above elbow slab was retained and advised to consult Dr. George. The 1^st opposite party had treated the complainant as per accepted medical protocol. Counsel further argued that open reduction internal fixation with plates and screws is the accepted line of treatment for the nature of the fracture caused to the complainant and delay in fracture union, non-union as well as mal-union are all accepted complication involved in the process of fracture union induced by factors beyond the control of the treating doctor. This was reported in authoritative text book of Medical Science of Orthopaedics.

 

5. On evaluating the evidence on records, the Forum found that it is an admitted fact that the complainant approached the 2^nd opposite party hospital on 21.6.2015 with the complaint of pain and swelling of left elbow following a fall. At there 1^st opposite party conducted open reduction internal fixation surgery and discharged the complainant on 27.6.2015 with medicines and advised follow up review. On 7.7.2015,

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sutures were removed and after x-ray evaluation, above elbow POP cast was applied and advised to continue with POP for 6 weeks. On 21.8.2015, the complainant come to the opposite party hospital for review, the duty orthopaedician removed the POP cast and x-ray was taken for evaluation and on suspecting delay in reunion, the complainant was referred to the 1^st opposite party. On evaluating the x-ray, the 1^st opposite party advised the complainant to continue POP slab. The complainant was again reviewed on 9.9.2015 and on x-ray evaluation his fracture did not show satisfactory union and hence the above elbow slab was retained and advised consultation with Dr. George, on 11.9.2015. As per the version of 1^st opposite party, on 11.9.2015, the complainant had consultation with Dr. George and he suggested CT scan to assess the status of union. Thereafter the complainant did not turned up for further consultation with the 1^st opposite party and lost his further follow up.

 

6. The point that falls for consideration is whether the open reduction internal fixation surgery failure resulted on account of any negligence on behalf of the treating doctor.

It is laid down by the Hon'ble Supreme Court in a catena of judgements that the essential components of negligence are three in total, duty of care, breach of the duty and the resulting damage. A professional man be held liable for negligence on one of the two findings, either he was not possessed with requisite skill which he preferred to have possessed or he did not exercise with reasonable care in the given case, the skill which he did possess. The standard to be applied for judging whether the person charged have 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 skill 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. Hence the ratio laid down is whether the 'duty of care' as envisaged by the normal medical parlance was followed or not.

 

7. From the above discussed brief history from the date of admission of the complainant to the 2^nd opposite party hospital till 11.9.2015, the date

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of advice to consult the HOD Dr. George, it is seen that, the 1^st opposite party has not consulted the head of the department, Dr. George, before or after conducting the surgery or after realising the non-union of fracture. From 21.6.2015, to 11.9.2015, the complainant was under the treatment of 1^st opposite party. The fact of non-union of fracture was realised by the 1^st opposite party on 21.8.2015. On perusing Ext.R1case history of the complainant, no where it is stated that, whether at any point of time between this period the 1^st opposite party took an expert opinion from a senior orthopaedician. From the proof affidavit of 1^st opposite party, it is very clear that, 1^st opposite party advised the complainant on 11.9.2015 to consult with the HOD of orthopaedic department, Dr. George. No evidence is produced by the 1^st opposite party to convince the Forum that whether he consulted with the Dr. George, before and after the alleged surgery. It is evident that the 1^st opposite party failed to consult the head of the department and he done the surgery without getting any advice from a well experienced doctor in this field, eventhough such a person is available there.

 

8. It is also an admitted fact that the 1^st opposite party conducted the surgery without applying due care and caution and also it is very clear that, the materials used for internal fixation was not as recommended. Except Ext.R3, copy of a Medical Text, Operative Orthopaedics, no supporting evidence is produced by 1^st opposite party to establish his version. At the same time, it is seen that due to the irresponsible attitude of 1^st opposite party, complainant forced to approach another hospital for getting relief or for cure the defective surgery conducted by the 1^st opposite party. As per Ext.P2, the discharge summary of St. James hospital, Chalakkudy, it is seen that, they diagonised the fracture of the left arm of the complaint as 'non-union / olecranon (L) with implant failure.' The treatment given by the St. James hospital was explant + refixation bone grafting on 3.12.2015. This line of treatment can be done by the 1^st opposite party. But as per records, the 1^st opposite party failed to give proper treatment to the complainant and the materials used for implant was not as per the nature of the fracture. The St. James hospital, orthopaedic department specifically stated in the Ext.P2 that it is the 'failure of implant i ' which was done by the 1^st opposite party.

 

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9. In the instant case, complainant approached the 2^nd opposite party hospital only on the firm belief that he will get better service from the expert orthopaedician Dr. O.T. George, but from the day of first visit, the complainant was managed and treated by the 1^st opposite party. No effort was taken by either the 1^st opposite party or the 2^nd opposite party hospital authority to provide him a chance to consult with the HOD, Orthopaedic, evenafter the knowledge of the failure of the surgery.

 

10. It is very surprising that even after the receipt of notices from the Forum, 2^nd opposite party has not defended or challenged the allegations put forwarded against them, at least to file a reply version. This shows that, 2^nd opposite party admitted all the allegations levelled against them by the complainant. The liability from the part of the hospital is specifically discussed by the Hon'ble National Commission in the case of Sheela Srivasthava (Deceased) through legal heirs and Rajiv Gandhi Cancer Institute and Research Centre and others in (2018 CPJ 504 NC).

 

11. In this case, the Hon'ble National Consumer Disputes Redressal Commission observed that the doctrine of vicarous liability extends to the primary liability of the hospital for the wrongs or negligent acts of its servants, irrespective of whether their employment is permanent or temporary or casual paid or honorary, whole time or part time as in the case of visiting physician or surgeon. By now it is well settled that the hospital is vicariously liable for the acts of its doctors. (see Saritha Garg V. Director, National Heart Institute (2004) 8 sec 56 and Balram Prasad.) Following the principles laid down in their pronouncements, we held that both the hospital and the 1^st opposite party doctor be liable for the act of negligence.

 

12. Under the above circumstances, the complainant established deficiency in service and negligence in treatment on the part of the opposite parties. Hence the complaint allowed. Opposite parties 1 and 2 are directed to pay Rs. 50000/- being the treatment expenses incurred to the complainant for the second surgery in St. James hospital and to pay Rs. 25000/- as compensation for pain and sufferings and Rs.5000/- as litigation cost to the complainant, jointly, within 30 days from the date of receipt of

 

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a copy of this order, failing which the amount discussed above except the litigation cost shall bear 12% interest from the date of default till its realisation.

 

Pronounced in the Open Forum on this the 30^th day of May, 2019

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Mathew V.M.

On the side of the Opposite Party :

DW1 - Dr. Santhosh Joseph Mathew.

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of discharge summary of 2^nd opposite party hospital.

Ext.P2 - copy of discharge summary of St. James hospital.

Ext.P3(series) - bills.

Ext.P4 - x-ray films.

On the side of the Opposite Party :

Ext.R1 - case sheet of the complainant.

Ext.R2 - x-ray film.

Ext.R3 - copy of the text book, Operative Orthopaedics (some pages).

 

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT