State Consumer Disputes Redressal Commission
Mrs.Sadachiammal, ... vs Vedamalayan Hospital, Rep. By Its ... on 14 December, 2011
Date of filing : 12.11.2007
Date of order :14.12.2011
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
C.C.No.60/2007
WEDNESDAY THE 14th DAY OF DECEMBER 2011.
Mrs.Sadachiammal, W/o.K.Somasundaram Vellar Street, Goripalayam, Madurai-2.
Complainant Vs.
1. Vedamalayan Hospital, Rep. by its Managing Director, 9A Vallabai Road, Chokkikulam, Madurai-2.
2. Dr.Chidambaram, Vedamalayan Hospital, 9A Vallabai Road, Chokkikulam, Madurai-2.
3. Dr.Bharath Kumar, Vedamalayan Hospital, 9A, Vallabai road, Chokkikulam, Madurai-2. .. Opposite parties This complaint coming on before us for hearing finally on 10.10.2011, upon perusing the material documents, and upon hearing the arguments of counsel for both sides and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant :
M/s. N.Kannan, Advocates.
Counsel for the Opposite parties : M/s. S.Subbaiah, Advocates A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL The complaint filed under Sections 12 & 17 of the Consumer Protection Act-1986:-
1. Gist of the complaint in brief are as follows :-
Complainant is a retired Government servant who worked as an Nursing Tutor/Superintendent. On 13.11.06 she had a fall in the bath room and was admitted in the 1st opposite partys hospital and the 2nd and 3rd opposite parties are the doctors who attended on the complainant when she was admitted in the hospital, as an inpatient for the compression fracture in the spinal column and the 2nd and 3rd opposite party advised to take two injections to get complete relief from the existing pain and it would enable her to walk without any difficulty and for the same she was operated on 18.11.06 by a team of doctors of 2nd and 3rd opposite parties.
After the injection of the bone cement in to the spinal cord the spinal cord nerves and blood vessels were completely damaged as the cement was injected without assessing the exact area for injection and the quantity of cement to be administered and because of the wrong dosage it had caused excessive heat and damaged the blood vessels and the complainant was unable to move the hip portion, hip joint legs and also the small intestines, kidney lost its capacity of functioning and to set right the same 2nd operation was conducted on 19.11.06 and in spite of that no improvement was made, in spite of the hospitalization till 15.1.07 on the date of discharge. Complainant spent several lakhs for the treatment and subsequently obtained further treatment from Apollo Hospital from 20.1.07 to 1.3.07 and still under constant medical care and to do all the works with the help of third persons. The disability caused because of the wrong treatment was certified as 90% by the Government. Hence the complainant after issuing a legal notice on 21.6.07 came forward with the complaint claiming Rs.10,00,000/-
being the cost of treatment given by the opposite parties and another Rs.10,00,000/- for treatment after discharge from the opposite parties hospital and Rs.15,00,000/- future expenses to be incurred by the complainant for her treatment and another Rs.20,00,000/- for pain and sufferings and mental agony and for costs.
2. Opposite parties denied the allegations of the complainant in their joint written version in which it is stated as follows :- The opposite parties 2 and 3 are well qualified medical practicing doctors having post graduate qualifications and number of years of service as mentioned in the version and the complainant was admitted in the 1st opposite party hospital on 14.11.06 for the complaints of severe back pain following fall on 13.11.06 with weakening of bone common to the fractured in the body of the spinal cord.
She was advised to undergo non surgical technique of treatment after having necessary tests she was operated given surgical technique was Vertebroplasty, which is a modernized one in the field of spine surgery with the advantage of minimal invasive surgery, immediate pain relief, shorter at the recovery rate type. Patient is aware of nature of the treatment being the Nursing Superintendent having 35 years of experience. The whole surgery was performed with the help of sophisticated instrument image intensifier. The surgery was successfully completed and since the complainant suffered pain on suspicion CT scan was taken which revealed the cement leak inside the canal which was also removed within 24 hours. Since the complainant wanted second opinion regarding the surgery MRI scan was taken and advised to wait for some time due to her complicated nature of diseases in her.
The opposite parties exercised all necessary care in giving treatment, proper medical treatment was given in diagnosing the problems suffered by the patient and there was no deficiency on the part of the service. For the legal notice of the complainants a reply was given on 25.7.07 which was evaded by the complainant and the details in the notice given by the complainant are entirely contra to the complaint filed by the complainant and the treatment taken at the Apollo Hospital was not mentioned in the earlier notice and in order to claim monetary benefits various medical bills obtained by adding the 2nd opposite partys name in the place of address and name in the bills and claiming of huge amount of Rs.60,00,000/- under various heads are fabulous and unsustainable. The complainant already realized the medical expenses through the mediclaim policy to the extent of Rs.1,90,628/- on 23.8.07. A sum of Rs.18,242/- is to be paid by the complainant which was suppressed by the complainant. Hence further claim of medical bills for Rs.1,24,269/- are also falsely claimed and hence the complaint to be dismissed as malicious in nature.
3. For the written version of the opposite parties the complainant filed reply version denying the details of written version and regarding the further treatment given in various hospitals after discharge from the Apollo Hospital.
4. The complainant and the opposite parties have filed their proof affidavit and the complainant side documents are marked as Exhibit A1 to A8 and the opposite parties documents are marked as Exhibit B1 to B18.
5. Points for consideration are :-
1) Whether there was any deficiency of service by 2nd and 3rd opposite parties while giving treatment to the complainant as alleged by the complainant ?
2) Whether the opposite parties 1 to 3 are liable for deficiency of service for negligence ?
3) Whether the complainant is entitled for the reliefs as prayed for ?
4) To what relief ?
6. Point No.1: In this complaint enquiry the complainant alleged that she got admitted with the 1st opposite partys hospital on 14.11.06 for a fall in her bathroom having pain in the spinal cord and on inspection the opposite parties diagnosed that she had compressing fracture in the spinal column and she was admitted as an inpatient at the 1st opposite partys hospital on 14.11.2006 and had treatment till 15.1.07. These details were admitted by the opposite parties. While undergoing treatment for the complaint of severe pain due to fall by the complainant in the bath room in her house and diagnosed was the spinal cord fractured vertebra. She was initially administered non surgical technical treatment after having necessary tests and only on 18.11.2006 he was operated by the technique of Percutaneous Vertebro Plasty after fully informed to the complainant. According to the surgery an injection of low viscosity cement mixed and injected in to the vertebral body through inserted under general anesthesia and after giving this injection of cement mixure since some suspicion arose that there may be leakage of cement in to the spinal cord another urgent scan was immediately taken and the C.T revealed extravasations of bone cement and spinal cord and immediately patient was given salumedrol injection and taken for urgent decompression and removed the excess cement. But this removal of extra cement was done only on the next day on 19.11.06 and it is the contention of the complainant that because of the leakage of extra cement into the vertebra which leads to second surgery and in the meanwhile due to the solidification of cement which made the complainant to have complication leading to Paraplegia and lost power in the hips and in spite of continuous treatment taken up 15.1.07 and subsequently followed the treatment at Apollo Hospital up to March 2007 her condition was not improved and she became bedridden and to depend upon for every, day to day activities to an another 3rd person and thereby because of negligence and wrongful treatment, the complainant suffered which made her to file this consumer complaint.
7. Whereas the opposite parties contended that they have given treatment under the Vertebra Plasty by giving injection of mixed viscose cement by using magnifier image identifier and normal dose of 4.5 ml bone cement mixture was given and cement some how leaked in to the vertebral column by breakage of bone column which is usually some times used occur in such treatment and immediately it was rectified by having Decompressive operation on the next day and the cement was removed and due to the age factor of the complainant being the women naturally the bone after the stage of menopause would become weaken and these conditions are normally used to occur such cases and in this case as the complainant finally diagnosis was made as compression of fracture L1/Osteo Porosis Percutaneous vertebra plasty was done. Complication by extravasations of bone cement right LL Neuralgic deficit.
Urgent Decompressive Laminectomy done these are all mentioned under Exhibit B15 discharge summary filed by the opposite parties. The complainant contended though the management of Vertebra Plasty Method is not a common and usual procedure since the opposite parties doctors advised for easy recovery and immediate relief of pain and for earlier discharge from the hospital the treatment was recommended which was compelled the complainant to accept the same without knowing the subsequent complications which lead to suffer for ever by becoming immobilized life of the complainant.
8. The opposite parties contended that the complainant was suggested at the earliest only for non surgical treatment by giving strict bed rest along with drugs like pain killers and analogues that will relieve the pain and strengthen the bone at the earliest. Unfortunately as the pain parameter did not come down at all and the patient was in severe agony even on bed and was not able to turn on her own in a sincere and genuine attempt to treat the patient was suggested for surgical option only on 17.11.2006 and the technique was Vertebra Plasty which is a modernize one in the field of spine surgery which is approved all over the world and internationally performed and by Interventional Radiologists, Senior Surgeons Orthopatic surgery and pain relieving physicians and the technique involves injection of bone cement in to the fracture part of the Vertebral body of spine to provide an immediate structural stability with the advantages of (1) Minimally Invasive Surgery needle is inserted in to the spine and image intensifier guidance to the small stab. No suturing of the wound is required and small dressing is required and incidence of post surgical scar is very minimal (2) Immediate pain relief as the injection of cement an immediate rigid mechanical stability and the bone narrow edema disappears which offers an immediate pain relief. (3) Shorter operative time. As there is no opening or closure of wound the technique can be performed in less than one hour of duration and in these circumstances the surgery was made by 2nd opposite party who was having more than 35 years of experience and well qualified Orthopatic surgeon having many laurels in the field having 3rd opposite party required qualifications and experience in the field as per Exhibit B3 and B4 and along with him one more Dr.Shyam attended in the operation. These things are all admitted by both sides. But the opposite parties have not come forward to show or explain if the Vertebra Plasty treatment is not given properly or wrongly given what are the consequences and the sufferings to the patients would occur.
But the complainants counsel contended that the treatment of Vertebra Plasty is not a common one and it is a failure method which is not recommended and since the complainant was assured for better relief and earlier discharge from the hospital and having faith with the opposite parties accepted the same and as the quantity of the bone cement to be injected was only up to 3 ml as per the standard procedure stated in the medical literature and in this case since it was administered up to 4.5 ml without having the assistance of Radiologist to do the same and with the magnificier machine the administration of injection was done which made the leakage of cement in to the spinal column and the cement was not immediately removed only on the next day it was removed. Meanwhile cement becomes solidified herded by pressing the nerves and bones in the spinal cord which made the complainant to become paralyzed and immobilized for ever. For this the complainant has produced the medical literature relating to the AbstractA Randomized Trial of Vertebroplasty for Painful Osteoporotic Vertebral Fractures.
We found no beneficial effect of vertebroplasty as compared with a sham procedure in patients with painful osteoporotic vertebral fractures, at 1 week or at 1, 3 or 6 months after treatment and in that abstract on the basis of survey conducted to the test patients of 78 participants enrolled and 71 completed the 6 months follow up in which Vertebra Plasty did not result in a significant advantage in any measured out come at any time point. There were significant reductions in over all fell in both study groups at follow up assessment with respect to drain at night and at rest, physical functioning, quality of right and perceived improvement. They found no beneficial effect of Vertebra Plasty as compared with a share procedure in patients that Ostriopatic Vertebral Fractures at one week or 3 or 6 months after treatment. Further it is also pointed out from that extract it is mentioned as follows :- Prepared PMMA (approximately 3 ml) was slowly injected into the vertebral body and satisfactory infiltration of the vertebral body was confirmed radiographically. A bipedicular approach. Injection was used only if there was inadequate instillation of cement with the unipedicular approach. Injection was stopped when substantial resistance was met or when the cement reached the posterior quarter of the vertebral body; injection was also stopped if cement leaked into extraosseous structures or veins. Al participants in the vertebroplasty group received cephalothin, administered intravenously immediately after PMMA injection.
From these details it is seen that only approximately 3 ml bone cement was given for such analysis and injection was stopped when substantial resistance was made or when the cement reached in the posterior quarter of the vertebral body. Injection was also stopped after cement leaked in to techlnitious structures or vains. In our case the opposite parties 2 and 3 have not explained why they have chosen to administer 4.5 ml of bone cement and what basis. Even though they alleged that it is the normal dose used to give such management and they have not produced any earlier records for the same kind of treatment done are made in their 1st opposite party hospital or in any other places to show that it is an international acceptance procedure.
9. The contentions of the complainant such treatment was taken on the complainant may be as an experimental basis to try for the results and this arguments cannot be brushed aside simply. On perusal of the Exhibit B15 discharge summary filed by the opposite party which is relevant to Exhibit A2 filed by the complainant, for the treatment given on 18.11.06 and 19.11.06 it is found that On 18.11.06 after the administration of bone cement with image identification. Post operatively patient had pain and weakness of right hip and knee muscles. So urgent CT of the dorso lumbar spine was done. And TT revealed Extravasation of bone cement and spinal canal and immediately treatment was recompressor and removal of cement was taken and only on 19.11.2006 patient taken for urgent Laminectomy and decompression and removed of extravasation cement done by 2nd opposite party and Dr.L.Shyama and Dr.Santhana Kannan under G.A and Extravasation cement for the post aspect was removed as a single piece without disturbing the spinal cord. The cement to the anterior to the cord was left disturbed wound closed in layers and after Haemostasis and patient was given Electrical Stimulations to the both lower limbs. Since she had weakness on both lower limbs after surgery a power in the left lower limps recovered is also found post operative and in the MRI Report it is reported evidence of Intra spinal hyperdense material for bone cement seen on right side at L1, L2 level on left side at T12 L1 level compressing the lower collasid cord and bones conuscanda junction and since recovery was not practiced as expected they were advised to take the CT and MRI Report to Dr.Devadoss and Dr.Rajamani for further consultation and were advised for another surgery for the possible recovery and it was suggestive who have the surgery here. Since they were not willing to have the next surgery here they were discharge at request.
10. From these details it is clear that there was leakage of bone cement due to excessive administration of the quantity more than 3 ml as alleged by the complainant or otherwise due to other reasons have been stated it was noticed on 18.11.2006 at the first earlier occasion itself at about 6 p.m in the evening as soon as the Vertebra plasty was done which is not involved in any major surgery by open method and in spite of that only on the next day on 19.11.06 alone the second operation by way of open method was conducted to remove the excess cement which became harder and remined as a single piece as per Exhibit B2 discharge summary details which lead to be future complications to the complainant with which we are of the view that there is negligence on the part of the opposite parties side in giving the treatment in a delayed manner and not giving alternative treatment immediately in spite of the defect was noticed as soon as the leakage of cement was found thereby sufferings to the complainant were made.
It is also not in dispute subsequently the complainant had treatment after consultation with the Dr.Devadoss and Dr.Rajamani at Apollo Hospital from 15.1.06 to 1.3.07 as per Exhibit A4.
It is also proved by the complainant the subsequent physical condition of the complainant due to the complications arose because of the wrongful or delayed treatment was given through the documents Exhibits A7 photographs which reflects the position of the patient before treatment and after treatment and she was also given a disability certificate by the Government of Tamilnadu as per Exhibit A8 in which a disability was mentioned as 80% having loss of sense below the hip. The opposite partys counsel have relied upon the following rulings to establish that there was no negligence on their part.
1) 2009 (3) S.C.C. Page - 1
2) 2009 (4) S.C.C. Page - 705
3) 2009 (7) S.C.C Page 130
4) 2010 (3) S.C.C. Page 480
5) Unreported Judgement of Supreme Court in Civil Appeal No.8983 of 2010 (SLP.No.5479 of 2009) dated 20.10.2010.
Since we are of the view even though that the opposite parties 2 and 3 are well versed in their service as qualified surgeons and having more experience and in general there may not be any possibility of negligence or carelessness, while giving treatment on their part as far as the present case is concerned, since the above said parties have failed to explain why they have come forward with the non conventional treatment of Vertebraplasty by method of injecting bone cement without having any open type of surgery when the complainant was suffering with severe pain due to the fracture on the back bone in such an age of around 60 years and even in that unconventional procedure they have not established the procedure for applying normal quantum of bone cement to be injected whether it is for 4.5 ml or only or of 3 ml through satisfactory evidence or medical proof and also for not explaining the reason for not proceeding with immediate surgery for the removal of Decompressive Devasation of excess cement entered in to the spinal column when they detected the same as soon as the surgery was over and only on the next day alone further operation was carried out which we feel which is the cause for all the complications of immobilization of the complainant below her hip and if the 2nd operation was carried out on 18.11.06 itself the damage caused to the complainant could have been averted.
On perusal of the case records and the discharge summary relied upon by the opposite parties there are no proof or entries with reasons for not performing the recovery operation on 18.11.06 itself.
11. Further as contended by the complainant whether it is mandatory for the presence of Radiologist while administering bone cement by way of Vertebraplasty with the assistance of image identification. Even though it is not contraverted the opposite parties contended their hospital is having sophisticated image intensifier (Philips BV 25 Gold) as stated in the arguments no proof was filed for the existence of the same, except the entry in the discharge summary in Exhibit B12 for the entry dated 18.11.06 which was stated as under GA patient in pron position the collapsed L1 Vertebra was identified with image intensifier. What type of image identification whether assistance of Radiologist was available are all not mentioned. In those circumstances in view of the foregoing reasons and for the discussions made above we are of the view that the 2nd and 3rd opposite parties have not carried out the treatment to the complainant in giving bone cement injection by way of Vertebraplasty surgery with out due care and diligence and thereby they are in deficiency of service for which complainant is entitled for suitable compensation. Accordingly we are answering this point in favour of the complainant.
12. Point No.2 : Since the opposite parties 2 and 3 are attached to the 1st opposite party hospital which is not disputed and in those circumstances for the negligence act of opposite parties 2 and 3 being the management and authority of opposite parties 2 and 3. 1st opposite party also liable for the deficiency along with opposite parties 2 and 3 and accordingly we are answering this point also in favour of the complainant.
13. Point No.3 : The complainant has claimed various amounts to the extent of Rs.55,00,000/- towards cost given to the opposite parties and cost incurred for future treatment and for pain and sufferings and mental agony. Regarding this the opposite parties contended the complainant has claimed fabulous amount and as far as the treatment of opposite parties side is concerned complainant having mediclaim policy and for the amounts spent in the 1st opposite party hospital it was settled by the Medi Assist Insurance Company as per document Exhibit B18 which is not disputed by the complainant.
Regarding other claims are concerned even though the complainant filed bills as Exhibit A1 and A5 relating to subsequent treatment at Apollo Hospital as far as the 1st opposite partys treatment it is seen from the document Exhibit B18 mediclaim the amount was almost settled by the insurance company and as far as the other expenses incurred towards the treatment at Apollo hospital concerned and regarding future loss concerned for which Consumer Forum cannot grant such claims.
In view of the deficiency pointed out and proved by the complainant against opposite parties 1 to 3, we are of the view that in all granting a lump sum of Rs.5,00,000/- as compensation awarding would be justified and in this regard and for any other amount, complainant is not entitled except for the cost along with the above determined compensation.
14. In the result this complaint is allowed in part. (1) The opposite parties 1 to 3 are jointly and severally held liable for the negligence and deficiency of service in giving treatment to the complainant at 1st opposite partys hospital for which opposite parties 1 to 3 are directed to pay Rs.5,00,000/- only as compensation jointly and severally to the complainant for the deficiency of service and mental agony to the complainant. (2) To pay a sum of Rs.5,000/- as costs to the complainant. (3) The payment shall be complied with within 2 months from the date of this order. (4) In other respects the complaint is dismissed.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 Xerox copy of Receipt and bills (Series) by opposite parties to complainant.
A2 Xerox copy of Discharge summary by opposite party to complainant dated 15.01.07.
A3 Xerox copy of Receipt and bills Series by Apollo Hospital to complainant.
A4 Xerox copy of Discharge summary by Apollo Hospital to complainant.
A5 Xerox copy of Receipts and Bills (Series) A6 Xerox copy of Notice & Ack. card complainant to opposite parties.
A7 Colour Xerox copy of Photographs (Before and after operation) A8 Xerox copy of disability Identity Card Govt. of Tamilnadu to Complainant.
Exhibits of the opposite party B1 Xerox copy of ISO 14001: 2004 Certificate dated 8.8.06 for 1st opposite party.
B2 Xerox copy of ISO 9001 :2000 Certificate for 1st opposite party.
B3 Xerox copy of M.S.(Ortho) Decree Certificate of 3rd opposite party.
B4 Xerox copy of DNB (Ortho) Certificate of 3rd opposite party.
B5 Xerox copy of Admission card of the complainant dated 14.11.06.
B6 Xerox copy of Written consent dated 18.11.06.
B7 Xerox copy of Pre Anesthetic Evaluation Report .
B8 Xerox copy of C.T. scan report dated 18.11.06.
B9 Xerox copy of Written consent dated 19.11.06.
B10 Xerox copy of Written consent dated 19.11.06.
B11 Xerox copy of Entire case sheet pertaining to complainant dtd.14.11.06 to 15.1.07.
B12 Xerox copy of Nurses Daily record dated 14.11.06 to 15.1.07.
B13 Xerox copy of Intake and out put record dated 14.11.06 to 15.1.07.
B14 Xerox copy of Temperature chart dated 14.11.06 to 15.1.07.
B15 Xerox copy of Discharge summary dated 15.1.07.
B16 Office copy of the reply notice with postal receipt dated 25.7.07.
B17 Xerox copy of Returned cover.
B18 Xerox copy of Settlement Advice issued by Medl. Assistant dated 22.8.07.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ Medl.