Date of Filing 01.02.2018

                                                                                                            Date of Disposal: 30.10.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                           …….PRESIDENT

                THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                 ……MEMBER-I

CC.No.50/2018

THIS MONDAY, THE 30^th DAY OF OCTOBER 2023

Mr.G.Narayanan,

S/o.Ganeshan,

No.534, North Street, Athirikuppam,

Perperiyankuppam Post,

Panruti Taluk, Cuddalore District.                                                         ......Complainant.

                                                                              //Vs//

M/s.ESSVEE Hospital,

Rep.by its Managing Director,

No.506, M.T.H.Road,

Ambattur, Chennai 600 053.

Counsel for the complainant                                                 : M/s.S.A.Rajan, Advocate.

Counsel for the opposite party                                             : M/s.AAV Partners.

This complaint coming before us on various dates and finally on 13.10.2023 in the presence of M/s.S.A.Rajan, counsel for the complainant and M/s.AAV Partners, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to medical negligence committed by them along with a prayer to pay the treatment charges of Rs.3,37,711/- incurred in both Hospital, to pay a sum of Rs.3,54,000/- towards compensation for the mental agony and pain suffering caused to the complainant due to the negligence and deficiency in service on the part of the opposite party along with a cost of Rs.25,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he met with an accident at Nasarathpettai on 27.11.2016 while travelling on a motor bike as a pillion rider.  In the accident the complainant suffered severe injury on the left leg and had two major bone fractures, one on tibia and fibula and another one on femur.  The complainant was admitted in opposite party Hospital on 27.11.2016 and the opposite party treated the complainant by fixing plates using supporting stainless steel rods for both the fractures.  The complainant got discharged on 10.12.2016.  For this treatment, he incurred an expenses of Rs.2,06,098/-.  The complainant took three month rest in his home.  Even then the complainant was not relieved from the pain and was unable to walk.  The opposite party had instructed the complainant that the stainless steel rod used in the femur was 3 inches longer than the required length and that it has to be treated again and asked the complainant to wait for 2 to 3 months to repeat the surgery to remove the extra 3 inch length stainless steel rod. Hence the complainant’s family member took him to Lakshmi Hospital at Cuddalore to have a second opinion.  To his shock, Dr.K.Sivasubramaniam, M.S. Ortho informed the complainant that the steel rod was wrongly fixed above the bone instead of the correct procedure of nailing the rod inside the bone and he further opined that the stainless steel rod fixed in femur was 3 inches extra in length and that both caused disability and pain. Lakshmi Hospital gave S.A.B. Exchange nailing treatment on 03.03.2017 for the femur and another S.A.B. Exchange nailing treatment on 07.03.2017 for tibia by Dr.K.Sivasubraminiam M.S. Ortho.  After the surgery within 2 months the complainant could see recovery from his disability and the complainant joined the job within 3 months rest.  Still he could not pursue his ordinary pursuits.   If the surgery by the opposite party had been done property, the complainant would have fully recovered now. The expenses incurred by the complainant in the opposite party Hospital for the entire treatment was Rs.2,06,098/-.  Because of the opposite party Hospital negligent act, the complainant had to go to another Hospital for repeating the surgery to cure the disability and the intolerable pain.  For the second surgery, the complainant incurred expenses of Rs.1,19,613/- and the complainant was in continuous pain for three months and had suffered mental agony.  The complainant was working in a private institution as Software Engineer receiving salary of Rs.18,000/- per month and he had loss of income for three months. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to pay treatment charges of Rs.3,37,711/- in both Hospital, to pay a sum of Rs.3,54,000/- towards compensation for the mental agony and pain suffering caused to the complainant due to the negligence and deficiency in service on the part of the opposite party along with cost of Rs.25,000/- towards litigation expenses to the complainant.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations contending interaila that the complainant had approached the opposite party with a history of road traffic accident after taking treatment elsewhere. On examination the patient had swelling with deformity in his left thigh, punctured wound on the left leg and abrasion in both elbow joints. The patient was diagnosed with closed fracture in the shaft of left femur and type 1 open fracture in left proximal tibia. After obtaining informed consent from the patient, the 1^st surgery was performed on 28.11.2016 under epidural and general anesthesia, open reduction internal fixation with IM nailing for closed fracture in the shaft of left femur and below knee slab was applied for type 1 open fracture in the left tibia. On discharge the patient was advised to take the prescribed medications and to do non weight bearing walking with walker support and to do quadriceps exercise. He was advised to come for review after 4 days.  The patient came back for review on 14.12.2016 and on examination the wounds had healed well and the sutures were removed.  The patient came back for review on 06.01.2016, on examination the wound had healed well.  On 05.02.2016 the patient again came back to the opposite party Hospital. The patient was explained after surgery that the femur bone was weak and while introducing the nail there was a crack.  The patient was also informed that once the wound heals, the nail would be removed.  During his review visits the patient was informed that the fracture reduction was in good condition.  The patient was clearly explained that the plating over the bone was one method of treatment and was advised bone graft of exchange of implant at a later date. Since the opposite party had not been deficient in the service there is no cause of action for the instant complaint as against the opposite party and is not liable to pay any sum of money, more so the amount mentioned in the prayer of the complaint, as the entire case of the complainant was based on assumption and presumptions and deserves to be dismissed in limine. Thus they sought for the complaint to be dismissed.

4. On the side of complainant proof affidavit was filed and documents were marked as Ex.A1 to Ex A9 was submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 & Ex.B2 were submitted.

Points for consideration:-

1. Whether the treatment provided by the opposite party to the complainant comes within the established Parameters fixed for holding medical negligence resulting in deficiency in service as alleged by the complainant and whether the same has been successfully proved by the complainant by admissible evidence?
2.  If so to what reliefs the complainant is entitled?

5. Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

1. Discharge Summary issued by the opposite party dated 01.12.2016 was marked as Ex.A1;
2. Bills of Hospitals & Professional charges by the opposite party dated 10.12.2016 was marked as Ex.A2;
3. Details of in-patient mediclaim of Apollo Munich issued by the opposite party dated 28.12.2016 was marked as Ex.A3;
4. Discharge Summary issued by the Lakshmi Hospital dated 11.03.2017 was marked as Ex.A4;
5. Consolidated bill issued by the Lakshmi Hospital dated 24.04.2017 was marked as Ex.A5;
6. Physiotherapy charges by Lakshmi Hospital dated 24.04.2017 was marked as Ex.A6;
7. Pan Card of the complainant was marked as Ex.A7;
8. Aadhaar Card of the complainant was marked as Ex.A8;
9. Legal notice issued by the complainant to the opposite party dated 16.08.2017 was marked as Ex.A9;

On the side of opposite party the following documents were filed in proof of their defence;

10. Copy of Case Sheet of the complainant was marked as Ex.B1;
11. Copy of Discharge Summary  marked as Ex.B2;

            6. The case of the complainant is that on 27.11.2016 he met with an accident as a pillion rider and approached the opposite party for treatment as he had injury on the left leg and had two major bone fractures, one on tibia and fibula and another on femur. Rods were fixed wrongly by the opposite party and hence he repeated the surgery in another Hospital.  3 inches extra rod was fixed in hips.  He also submitted X-Ray in proof of the same taken in the opposite party’s Hospital.  2^nd X-Ray was submitted taken after the second surgery in Lakshmi Hospital where no extra crutches found beyond the bone.  Thus he submitted that the procedure done in the opposite party Hospital was wrong and that only nail should be inserted and by keeping rod the opposite party had treated wrongly which was not an accepted procedure.  Thus he sought for the complaint to be allowed as prayed for.

7. On the other hand, it was argued that the complainant first approached Deepam Hospital after the accident and then only approached the opposite party.  As per the Discharge Summary (Ex.A4) no complaints were mentioned by the complainant.  In the second surgery only the screws were replaced and nothing done to the rod. It was also strongly objected for the Doctor’s opinion relied upon by the complainant who was alleged to have treated the complainant 2^nd time and had performed the second surgery that he was an interested witness and hence his opinion should not be relied upon. Thus the learned counsel sought for the dismissal of the complaint.

8. The factum of complainant sustaining injuries in his leg as a pillion rider and taking treatment with the opposite party was not in dispute.  Further the only issue raised and to be decided by this Commission is that whether the opposite party had followed the standard treatment for the bone fractures in shaft of femur of the left leg and type 1 open fracture in proximal third tibia suffered by the complainant. The main allegation of the complainant is that fixation of rod by the opposite party is not the proper treatment and that three inches extra rod was protruding which caused suffering and inconvenience to the complainant which resulted in an second surgery.  However, as per the version of the opposite party only after proper assessment the surgery was performed after obtaining informed consent under epidural anesthesia and open reduction internal fixation with IM nailing for closed fracture in the shaft of left femur and below knee slab was applied for Type 1 open fracture in the lift tibia was performed.  In short the surgery performed was said to be ORIF (Open reduction and internal fixation) and was the appropriate treatment.

9. The opposite party further argued that the patient was discharged on 09.12.2016 and was advised to come back for review after 4 days.  It is also seen that on 14.12.2016 the complainant was seen by one Dr.Prabu vide Ex.A1, the Discharge Summary wherein it had been submitted that the complainant had pain in the left knee and wound healed well etc.  On 06.01.2017 also the patient was seen by the same Dr.Prabu wherein it has been written that femur Tibia patient feeling better, mild pain in left hip etc.  It was the case of the complainant that the patient was explained after surgery that the femur bone was weak and that while introducing the nail there was a crack and also that once the bone heals the nail would be removed. During the reviews the patient was informed that the fracture reduction was in good condition.  It is specifically denied by them that they had wrongly fixed the nail on the bone instead of fixing it in the bone.

10.  The complainant in his pleadings and arguments had admitted that the opposite party had inserted that the stainless steel rod used in the fracture was 3 inches longer than the required length and it has to be treated again and asked the complainant to wait for 2 or 3 months to repeat the surgery to remove the extra 3 inches stainless steel rod.  However, during argument it was argued by the complainant that the nail inserted was wrong and was 3 inch longer than the required and was protrubing.  The opposite party argued that the protuberance was common as there was movement after the surgery by the complainant.

11.  The affidavit filed by one Dr.K.Sivasubramaniam, M.S. Ortho is that the steel rod was wrongly fixed above the bone instead of the correct procedure of nailing the rod fixed in femur and was 3inches extra in length. The said Doctor was also cross examined by the opposite party.  In the said cross examination the Doctor had admitted that he had seen the patient more than 20 times and he has every locus to give opinion and that he had no vengeance against any Doctor.  Though the said Doctor K.Sivasubramaniam had replied to the cross examination after issue of summons to him we find the same is reliable and could be believed. This Commission opines that being a Medical Professional he shall not unnecessarily depose his opinion causing implications on another Medical Professional.  The opposite party did not submit any medical literature or expert opinion to show that the stainless steel rod fixed above the bone instead of inserting inside the bone was only the standard and acceptable procedure.

12. Further from Medical Literatures we could find

“S.A.B. Exchange nailing treatment is a surgical technique for treating aseptic non-union of long bones, such as the femur and the tibia, that have failed to heal after a previous intramedullary nailing.  Aseptic non-union means that there is no infection or inflammation at the fracture site, but the bone ends are not united and stable. Exchange nailing involves removing the old nail, reaming the intramedullary canal to stimulate blood flow and bone formation, and inserting a new nail that is larger in diameter than the previous one.  Sometimes, bone grafting or other adjunctive procedures are also performed to enhance bone healing. Exchange nailing should be performed by experienced surgeons following a standardized protocol and with careful patient selection and follow-up. According to some studies, exchange nailing is a safe and effective treatment for aseptic non-union of the femur and the tibia, with a high rate of bone healing and a good functional outcome.

Thus it is evident that the treatment/Surgery performed by Doctor K.Sivasubramaniam is a standard treatment for the injury sustained by the complainant.

13.  Thus the mode of treatment done by the opposite party was proved to be done in an un-correct method causing further damage and hardship to the complainant.  It is also seen that every time of the review the complainant had complained of hip pain which was duly noted and observed by the opposite party’s Dr.Prabu but if it seen that no steps taken to reduce the pain.  No proper explanation was also given for the protuberance of 3inches by the opposite party but it is their contention that after surgery due to movement by the complainant the same had been caused.  Therefore in the absence of any contra expert evidence or medical literature to establish that the method of treatment was upto standard this Commission has no hesitation to hold that the treatment by the opposite party to the complainant amounts to medical negligence resulting in deficiency in service. Thus we answer the point accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

14. As we have held above that the opposite party had committed medical negligence to the complainant we direct the opposite party to pay the total medical expenses incurred by the complainant for his treatment in both the Hospitals.  Also we award a compensation of Rs.50,000/- which we thought would be the appropriate compensation for the sufferings undergone by the complainant along with the refund of the medical expenses amounting to Rs.3,25,711/-. We also award litigation cost of Rs.10,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing them

a) To refund a sum of Rs.3,25,711/- (Rupees three lakhs twenty five thousand and seven hundred eleven only) being the cost incurred by the complainant for the medical expenses in both the Hospitals to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30 day of October 2023.

  -Sd-                                                                                                                  -Sd-

MEMBER-I                                                                                                        PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-I                                                                                                          PRESIDENT