Tamil Nadu

South Chennai

CC/439/2015

M/s.S.Sridharan - Complainant(s)

Versus

M/s.Sri Balaji Hospital - Opp.Party(s)

M/s.B.K.Srinivasan

17 Feb 2020

ORDER

                                                                                                                                                                                              Date of filing      : 19.11.2015

                                                                                                                                                                                              Date of disposal : 17.02.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

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

 

C.C. No.439/2015

DATED THIS MONDAY THE 17^TH DAY OF FEBRUARY 2020

                                 

Mr. S. Sridharan,

S/o. Late. A.K. Srinivasan,

No1/194 D, Tamarai Veedhi,

Rajiv Gandhi Nagar Extn.,

Uthangudi,

Madurai – 625 107.                                                        .. Complainant.                                                     

                                                                                            ..Versus..

 

M/s. SRI BALAJI HOSPITAL PVT. LTD.,

Represented by its Managing Director

Dr. L. Subramanian,

No.1, Lawyer Jaganathan Street,

Gunidy,

Chennai – 600 032.                                                    ..  Opposite party.

 

Counsel for the complainant      : Mr. B.K. Sreenivasan

Counsel for the opposite party  : M/s. Sampathkumar & Associates &

                                                      another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.5,35,000/- together with future interest at the rate of 12% p.a.  and with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that on 15.05.2009 at about 06.45 p.m., he met with a road accident on Sardar Patel Road, Adayar near the main gate of ‘Raj Bhavan’ while travelling in a two wheeler.    The complainant submits that he suffered a fracture in his left leg ‘Tibia’ bone in the said accident and immediately, he was admitted in the opposite party hospital.  On 16.05.2009, a surgery was done at the opposite party hospital.    During the surgery, an implant was fixed and thereafter he was taking further treatment in the opposite party hospital.   The complainant submits that after few days, there was oozing over the operated area and got infected.    Thereafter again on 30.05.2009, when the operated area was yet to heal, another surgery was done at the opposite party hospital.   During the surgery, skin grafting was done by the opposite party’s Plastic Surgeon and on 02.06.2009, the complainant was discharged from the opposite party hospital.   The complainant submits that for his treatment the complainant paid Rs.1,50,491/- out of which, Rs.82,491/- was directly paid  by the complainant and Rs.68,000/- was paid by his insurer, namely; Star Health Insurance Company and further the complainant incurred other expenses.   Since he suffered severe pain and discharge of sinus at the operated area on 22.06.2009, he went to Apollo Hospital, Chennai where he was admitted as in patient.

2.     The complainant submits that thereafter, he underwent treatment at Apollo Hospitals, Greams Road, Chennai that he had to undergo four surgeries for removal of the infected implant, fixation of external fixator, for curing the infection for healing the operated area and for other procedures on 23.06.2009, 13.07.2009, 06.10.2009 & 29.10.2010 and expended a sum of Rs.3,46,222/- out of which, Rs.2,15,222/- was paid by the complainant and Rs.1,31,000/- was paid by Star Health Insurance Company and the complainant incurred other expenses also.  The complainant submits that after the fourth surgery which was conducted on 29.10.2010 and he was discharged from the hospital on 31.10.2010.  At the time of discharge, the complainant was informed that the reason for conducting the four surgeries were due to the facts that during the surgery done in the opposite party hospital on 16.05.2009, the  fractured bone was not united properly that there was mal-alignment of the fractured bone that the implant was infected that the operated area should not have been closed by plastic surgery on 30.05.2009 as there was infection at  that time and as the operated area was yet to heal.  Apart from all these, varus deformity has developed in the complainant’s left leg.   The complainant submits that on 17.11.2011 he took digital X-ray of his injured and operated left leg at Madras Scan Systems and on December 2011, when he consulted a Doctor at Ganga Hospital, Coimbatore for opinion, he was informed that his disability that has come into existence due to negligence of the Doctors of the opposite party hospital is permanent.

3.     The complainant submits that because of the facts that during the surgery on 16.05.2009 the fractured bone was not united properly and the fractured tibia bone was not aligned properly the implant got infected and due to the facts that the operated area was closed by plastic surgery on 30.05.2009 when the infection was not cured and the operated area was not healed and the complainant was undergone sufferings and hardships.   The complainant submits that he issued a legal notice dated:13.03.2012 for which, the opposite party sent reply legal notice dated:24.04.2012 denying the complainant’s contentions and making various false allegations.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

4.     The brief averments in the written version filed by the opposite party is as follows:-

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.  The complaint is barred by limitation.  The complainant met with an accident on 15.05.2009 and was admitted in the opposite party’s hospital on 16.05.2009.  He was discharged on 02.06.2009 after the treatment.  Thereafter, he visited Apollo Hospital on 22.06.2009.   The complainant met with an accident when he was riding a two wheeler hit by Mahindra van near Raj Bhavan at 07.00 p.m. on 15.05.2009.  The complainant complained of pain in his left knee.   There was no head injury.  He was seen by Dr. L. Subramanian, Chief Orthopaedic Surgeon, diagnosed swelling and tenderness over the left knee joint movements painful and restricted. X-ray on left knee which shows commuted depressed bicondylar fracture left tibia.  The upper tibial bone of the complainant was broken into many pieces. The Orthopaedic Surgeon advised open reduction and internal fixation with elevation of depressed Bicondylar Fracture with bone grafting.   Bone grafting means the defect (gap) in the fracture site filled with artificial bone cement.  The cement was an imported one. The opposite party already mentioned in the informed consent regarding wound infection as sepsis post-operative complication that may occur.  During the surgery, it was found that there was a severe fracture in the upper tibia and the bone was broken into many pieces and powered.  Some pieces of bone are non-viable.  The powdered bone and small pieces (non-viable) were removed during surgery.   There was a gap in the fracture site which was packed with bone cement, open reduction and internal fixation was done.

5.    The opposite party submits that after surgery, the complainant was treated with appropriate IV antibiotics to prevent wound infection.  Wound swab c/s (cross section) was taken which showed E-coil growth, liver enzymes elevated.  Haemoglobin in blood was low.  Therefore, four units of blood was transfused to the complainant and was also treated with appropriate IV antibiotics.   Dressing and wound examination of the complainant was done in operation theatre by the Orthopaedic Surgeon.  Sutures were removed on 29.05.2009 wound gaping (+) place was exposed. There was no complaint of plus discharge, no fever spikes. Orthopaedic Surgeon sought the opinion of Plastic Surgeon. The Senior Plastic Surgeon, Dr. Shashibushan of Apollo Hospital after examining the complainant opined that there was no wound infection and advised local fasio-catuneous flap and skin grafting.  After getting consent from the relatives of the complainant, the surgery was done on 30.05.2009.  After surgery, the complainant was treated with appropriate IV antibiotics, analgesics and vitamins.  

6.    The opposite party states that the wound examination and dressing were done by Orthopaedic and plastic Surgeon.  Flap taken well.   There were no signs of wound infection.  The opposite party has discharged the complainant on 02.06.2009 and was advised to continue antibiotics, non- weight bearing crutch walking for the left side leg.   He was advised to come review for wound examination and dressing on 05.06.2009. If the complainant would have come to the opposite party hospital for follow-up check-ups, the infection could have been prevented.   The opposite party denies any responsibility for the alleged sufferings, hardships of the complainant and family members without continuing any further treatment as directed by the opposite party.  When a bone had been broken into many pieces, the skin covering the bone also gets damaged due to impact.   While connecting the bones, it was not necessary to do the plastic surgery.   It was required as the skin was not healing.   Plastic surgery was done to prevent bones getting exposed.   Therefore, there is no negligence or deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

7.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A10 are marked.  Proof affidavit of the opposite party filed and documents Ex.B1 alone is marked on the side of the opposite party.

8.     The points for consideration is:-

1. Whether the complaint is barred by limitation?

2. Whether the opposite party committed negligence and deficiency in service?

3. Whether the complainant is entitled for compensation of Rs.5,35,000/- with interest at the rate of 12.5/- interest with cost?

4. To what relief the complainant is entitled to?

9.     Point no 1:-

Both parties filed their respective written arguments.   Heard the opposite party’s Counsel.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The Opposite Party contended that the Complaint is barred by limitation, according to this Hon'ble Forum’s seal appears on the Complaint is 04.11.2015, the date of filing the complaint but on a careful perusal of records, it is very clear that the Complaint was filed on 29.10.2012 and not on 04.11.2015, and is within the period of limitation.  Hence, the Complaint is not barred by limitation, and is within time and the point is answered accordingly. 

10.   Point Nos.2 & 3:-

 

The contention of the complainant is that, the complainant met with an accident on 15/5/2009 and was admitted in the opposite party hospital on the same day. The opposite party administered immediate surgery. Due surgery was done in the Opposite Party Hospital on 16.5.2009. There was no proper drain made.   The fractured bone was not united properly, there was mal-alignment of the fractured bone, the implant was infected and oozing from the wound occurred. Without proper treatment for recovery of wound and oozing from the operated area; the opposite party closed by plastic surgery on 30.5.2009 and skin grafting was done, which proves the gross negligence in treatment. The chronic infection continued in the operated area resulting in septicemia.  Before proper healing and continuous oozing from the wound, administered plastic surgery and closing of wound proves that the opposite party committed the gross negligence in the above said surgical procedure establishes absolute deficiency in service and negligence resulting that the complainant suffered a lot of pain, mental agony including monetary loss, for that, the Opposite Party is liable to pay compensation.

 

11.   The opposite party contended that their doctors are not responsible because the Complainant did not turn-up for review; is not acceptable because from the inception immediately after surgery no proper drain of wound has been done resulting in opening of the wound and oozing from the wound.  Without proper healing opposite party performed plastic surgery and closed the wound causing severe infection thereby resulted in repeated surgery, thus proving the commercial attitude of the opposite party.  The opposite party also has admitted in the written version that when the complainant was undergoing treatment in the opposite party’s Hospital, during the post-operative period there was E-coli growth in the operated area.  The opposite party has also admitted that, the infection is due to the high velocity incurred in the accident, which has resulted in causing dead bone and severe damage to muscles and skin. There is no evidence on record to prove that treatment was given by the opposite party for such infection etc. including for the E-coli growth also proves that, the infection is not due to the alleged failure on part of the complainant to go to Opposite Party for review.

12.   Further the contention of the complainant is that, the opposite party is aware of the fact that the velocity of the accident is high, and that the accident has caused dead bone and has caused severe damage to muscles and skin, the Opposite Party ought to have provided appropriate treatment, and that, the opposite party has miserably failed to provide suitable and appropriate treatment to the Complainant proves negligence in treatment amounts to deficiency in service.  Further, it is clearly, evident from the discharge summary dated 26.6.2009 (Ex.A3) that, when the complainant got admitted at Apollo Hospital, the implant fixed by the opposite party, was found to be infected anything like and that there was discharge of sinus from the wound.  It is also clear, from the discharge summaries (Ex.A.3 to 6), that due to, negligence, and deficiency in service on the part of the opposite party, lead to mal-alignment of the fractured bone; fixation of inferior quality implant and closure of wound (operated area) by performing plastic surgery, before the same got healed caused irreparable loss, pain and suffering, mental agony resulting physically handicapped position throughout the rest of life. Such pain cannot be recoverable.

 

13.   Further the contention of the complainant is that no need of examining the doctors who signed the discharge summaries as per Ex.A3 to Ex.A6 to prove the negligence, deficiency in service and unfair trade practice because it is apparent on the record that in all stages of treatment right from the surgery the negligence of the opposite party is clearly proved. The law is also well settled that in all cases there is no need of examining the expert witnesses if the deficiency is explicated. In this case the evidence on record and proof affidavits are very clear to prove the negligence of the opposite party since the opposite party has not disputed the genuineness of documents marked as exhibits A3 to Ex.A6.  The opposite party has not come forward to examine any Medical Expert other than the filing of proof affidavit of the Managing Director of the Opposite Party in order to prove that, the treatment given by opposite party was perfectly in order and that, the sufferings of the complainant are owing to his failure to go to opposite party for follow-up treatment.

14.   Further, the contention of the complainant is that, “if the treatment provided by the Opposite Party to the Complainant was proper and appropriate, the better healing of the wound might have happened. But in this case it apparently proved that there is no proper drainage done resulting in opening of wound and oozing. There is mal union of bone resulting in infection of implants. The quality of implant is also not proved by way of import receipt resulting that there might not have been a necessity for the Complainant to go to another Hospital and spend more and more money”. Further the contention of the complainant is that in order to fix the quantum of compensation this forum has to consider the expenses incurred by the complainant, the pain and sufferings undergone by the complainant, his disability in permanent nature, owing to negligence and deficiency in service on the part of the opposite party. In this case, due to the unfortunate accident the complainant was put to great hardship, his entire family is placed under panic circumstances, pain and sufferings of the complainant and the mental agony is subsisting permanently resulting in irreparable loss and mental agony.

 

15.   The complainant has incurred huge amount towards medical expenses, extra nourishment, and transportation and towards bystanders. The complainant has claimed a sum of Rs.5,35,000/-, towards compensation which includes medical expenses to a tune of  Rs.1,50,491/- paid to the opposite party and another sum of Rs.3,46,322/- paid to the Apollo Hospitals out of which only a sum of Rs.68,000/- and Rs.1,31,000/- alone was reimbursed by Star health Insurance company. The balance amount is paid by the complainant from and out of his own packets, out of his hard earned money. Hence the opposite party is liable to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service and a sum of Rs.1,00,000/- towards permanent disability. Since, as per Ex.A7 the complainant had a permanent disability which amounts to limping throughout his life due to shortage of left leg to a tune of approximately one inch.

 

16.   The contention of the opposite party is that the claim is barred by limitation since this petition was filed on 04.11.2015 for the accident happened on 15.05.2009.  But it is very clear from the records that this case was filed on 29.10.2012. hence the question of limitation never arises. Further the contention of the opposite party is that the complainant came to the opposite party hospital with the complaint of pain on his left knee. There was no head injury. Dr.L.Subramanian the chief Orthopedic Surgeon diagnosed swelling and tenderness over the left knee joint and X ray was administered; which shows commuted depressed bicondylar fracture left tibia type V which necessitated open reduction and internal fixation. Bone grafting was also done on 16.05.2009. but on a careful perusal of records the open reduction has not been done properly with due drains. Internal fixation was totally improper resulting in infection, E-coli formation etc., the opposite party without proper administration of drugs and giving suitable treatment for arresting the oozing in the manner known to the medical literature administered and performed plastic surgery and closed the wound caused the aggravated position of the injury resulting in septecimia establishes the negligence in surgery, treatment and unfair trade practice adopted by way of plastic surgery in such unhealed open oozing wound.

17.   Further the contention of the opposite party is that after due surgery and post-operative treatment dressing were done by orthopedic and plastic surgeon.   The complainant miserably failed to attend the review; for that the complainant cannot be entitled to raise allegations against the opposite party; is not acceptable because it is apparently clear from the records, discharge summary including Ex.B1 Treatment Chart shows the post-operative treatment is very poor for the simple reason that there is improper drain, opening of wound,  oozing from the wound, very poor healing and performance of plastic surgery proves the negligence of the opposite party from the very inception of surgery to till the plastic surgery. Further the contention of the opposite party is that the complainant and his relatives were informed and obtained consent for all the treatment procedures and informed that the wound may get infection. But there is no iota of evidence to prove such intimation stating that the wound might have get septic and infected proves that the opposite party failed in his duty of care, negligence and deficiency in service. 

18.   Further the contention of the opposite party is that the compensation claimed by the complainant is exorbitant and imaginary. But on a careful perusal of records, for a simple accident resulting in fracture of tibia the complainant has suffered a lot. His entire family is put to great hardship.  The pain and suffering of the complainant is immeasurable resulting in permanent disability which is proved through Ex.A7. Therefore, this Forum, hereby holds that the opposite party and its doctors have acted in negligent manner and their services have been deficient.  This Forum holds that the opposite party is liable to compensate the complainant. Hence, this Forum is of the considered view that the opposite party shall pay a sum of Rs.5,00,000/- towards compensation for deficiency in service and another sum of Rs.1,00,000/- towards permanent disability as per Ex.A7 with interest at the rate of 9% per annum from the date of complaint with cost of Rs.15,000/-.

       In the result, this complaint is allowed in part.   The opposite party is directed to pay a sum of Rs.5,00,000/- (Rupees Five lakhs only) towards compensation for deficiency in service and another sum of Rs.1,00,000/- (Rupees One lakh only) towards permanent disability along with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e.) 29.10.2012 to till the date of this order (i.e.) 17.02.2020 with cost of Rs.15,000/- (Rupees Fifteen thousand only) to the complainant.

 

      The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 17^th day of February 2020. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	15.05.2009	Copy of First Information Report filed by the Inspector of Police, Adyar Police Station
Ex.A2	02.06.2009	Copy of discharge summary issued by the opposite party to complainant
Ex.A3	26.06.2009	Copy of discharge summary issued by Apollo Hospitals to complainant
Ex.A4	14.07.2009	Copy of discharge summary issued by Apollo Hospitals to complainant
Ex.A5	06.10.2009	Copy of discharge summary issued by Apollo Hospitals to complainant
Ex.A6	30.10.2010	Copy of discharge summary issued by Apollo Hospitals to complainant
Ex.A7	30.12.2010	Copy of Disability Certificate issued by Disabled Persons Welfare Officer, Madurai to the complainant
Ex.A8	17.11.2011	Copy of X-Ray Report issued by Madras Scan System to the complainant
Ex.A9	13.03.2012	Copy of notice issued by the complainant’s Counsel to the opposite party
Ex.A10	24.04.2012	Copy of reply sent by the opposite party’s Counsel to the complainant’s Counsel

 

OPPOSITE PARTIES SIDE DOCUMENTS:-  

Ex.B1

15.05.2009

Copy of Case History with all the documents

 

 

MEMBER                                                                                                                                                                                    PRESIDENT