State Consumer Disputes Redressal Commission
G. Sudheer vs Smt. Bhagawan Devi Hospital on 29 January, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
(ADDITIONAL BENCH)
F.A.No.149 OF 2019
AGAINST ORDERS IN C.C.397/2015
DISTRICT CONSUMER COMMISSION-II, HYDERABAD
Between:
G.Sudheer, S/o G.Ambaji,
Age about 54 years, Occ.: Unemployed,
R/o 11-1-264, Bhoiguda, Aghapura Kaman,
Hyderabad-500 001, Ph.No.9391146211.
........Appellant/Complainant
And:
Smt.Bhagawan Devi Hospital,
Rep. by its Prop. Dr.Om Prakash Agarwal,
21-7-191, Mamajumla Phatak, Charkaman,
Hyderabad-500 002.
.....Respondent/Opposite Party
Counsel for the Appellant/Complainant : M/s.Gopi Rajesh and
Associates
Counsel for the Respondent/Opposite Party : M/s. Pramod Kumar
Kedia
QUORUM :
HON'BLE SRI V.V.SESHUBABU MEMBER - (J)
&
HON'BLE SMT. R.S. RAJESHREE, MEMBER - (NJ)
MONDAY, THE 29th DAY OF JANUARY
TWO THOUSAND TWENTY FOUR
**********
Order : (PER HON'BLE SRI. V.V.SESHUBABU, MEMBER - JUDICIAL)
1.This appeal is filed by the Appellant/Complainant U/s. 15 of the Consumer Protection Act, 1986, by the unsuccessful complainant against the order of dismissal, dated 30.01.2019 in CC No.397/2015 by the District Forum-II, Hyderabad, to allow the appeal and pass such further or other orders as this Commission deems fit and proper in the circumstances of the case.
22. The brief averments of the complaint in CC 397/2015 are that the complainant, a small business man met with an accident on 02.08.2013 near Muralidharbagh due to negligence of one auto driver within the jurisdictional limits of Abids P.S. and on same day at 03:00 P.M. was admitted in the opposite party hospital and after investigations and x-rays, found with fracture of left hip and advised to undergo operation; that in the operation a steel rod was inserted and was discharged on 08.08.2013 by incurring an expenditure of Rs.85,520/-; that few days after the surgery, he developed pain in the hip and blood was coming out from the operation site and puss was also formed; that unable to control the pain, contacted the opposite party, who advised some cream/ointment and applied bandages by assuring no problem; that treatment went on like this for about one month and complainant incurred Rs.20,000 to Rs.25,000/-, but there was no relief from the pain and on the other hand it got increased; that the same was brought to the notice of the opposite party and so, another operation was performed on 26.02.2014 for the removal of steel rod and by-polar was done without informing on the ground that, the wound was infected and given medication for regular consumption; that on verification, complainant found the tablets as a sedatives and anti-depressant; that on this occasion, the complainant incurred Rs.60,000/- for treatment, but he was not given any bill or discharge summary; that inspite of the 2nd surgery due to no relief in the pain, the complainant unable to attend day to day activities and became dependent on family; that he suffered financially and due to the same, the education of his son and daughter was discontinued; that having learnt about getting some CM relief fund for the poor and downtrodden, the complainant went to Kamineni Hospital and obtained estimation for the treatment to the tune of Rs.3,27,000/-; that due to the negligence and deficiency of service of the opposite party, the life was ruined totally; hence, the complaint, claiming Rs.6,60,000/- towards medical expenses, Rs.3,40,000/- for damages and mental agony.
33. Brief averments of the written version of Opposite Party are that a complaint is not maintainable either on facts or under law; that the complaint is vexatious in nature and filed to make a wrongful gain; that the complainant was admitted on 02.08.2013 at 3:00 p.m. with a fracture of left hip and after necessary investigations was advised to undergo operation that after obtaining high risk consent and after explaining about the pros and cons of the operation, it was performed on the 03.08.2013 by inserting steel rod at the facture site; that he was patient of hypertension, due to excess smoking and alcoholic; that he was discharged on 08.08.2013, in a stable condition and he was charged with a bill for Rs.85,520/- but he paid only Rs.70,000/- that the allegations of the complainant about no relief of pain and aggravation of the same for which he undergone treatment and was charged Rs.20,000/- to 25,000/- by the Opposite Party is not true and correct; that after discharge complainant came for review with pain in hip and fever and so, he was prescribed with strong anti-biotics for two weeks; that due to improper use of the medicines the infection in the hip was not reduced; that every time complainant was treated with utmost care and caution that on 24.02.2014, complainant again admitted in the hospital as the wound site got infected and after blood test, opinion of experts the cemented bipolar prostheses was removed after obtaining consent from the complainant and his attendants and was discharged on 04.03.2014, with medication as per protocol; that the complainant not paid Rs.10,000/- of the OT charges and escaped from the hospital; that the complaint is put strict proof of all the averments made in the complainant which are in the nature of the financial loss sustained by him, the discontinuation of the studies by his son and daughter and his approach to Kamineni Hospital and securing treatment estimation for Rs.3,27,000/- etc. With this requested to dismiss the complaint with exemplary costs.
4. Before the Forum below, complainant filed evidence affidavit as Pw1 as marked Ex: A1 to A16 and Pw1 was also subjected to 4 cross-examination by the Opposite Party. Dr. Omprakash Agarawal filed evidence affadivit as Rw1 and got marked Ex: B1 and B2.
5. The Forum below, settled the following points for discussion viz..:
Whether any deficiency of the service is there on the part of Opposite Party?
Whether complainant is entitled for the relief sought? To what relief?
Both sides filed written arguments and made oral submissions. Having gone through the entire material available on the record, the Forum below, dismissed the complaint on merits. Aggrieved by the same the present appeal is preferred.
6. The Grounds of the appeal in brief are :-
1. The order of the District Forum is contrary to law, weight of evidence and probabilities of the case.
2. The order is based on assumptions and presumptions and one sided in nature.
3. The Commission below failed to appreciate the case law and failed to observe the money incurred by Pw1 for the treatment and mental agony suffered by him due to the negligent act of the Opposite Party.
4. The Forum below failed to consider that the Opposite party has not issued any Bill for the Expenditure incurred by complainant for treatment and bandages applied to him and also for Rs.60,000/- bill was not given for the second surgery .
5. The Forum below failed to observe that operations are performed on complainant without informing the risk involved in the operation and without obtaining consent.
With these grounds and others that will be urged at the time of arguments, requested to allow the appeal and also the complaint by granting the reliefs as prayed there in.
57. Now, the point for determination in this appeal are:-
1. Whether there is in the negligence and deficiency in service on the part of Opposite Party while treating the complainant?
2. Whether the order of the Forum below is sustainable under law?
3. Whether the complainant is entitled for the reliefs as claimed in the complaint?
8. Nobody is examined and no document is marked before this Commission Heard the arguments on both sides and they have also filed case law. For the sake of the convince the parties will be addressed as they arrayed in the impugned order.
9. POINTS 1 to 3: It is the main contention of Pw1 that without informing anything the Opposite party had performed the operation and even removed the Bipolar prostheses and due to the negligence there is a shortening of left leg and also limp to Pw1. There is no dispute that Pw1 involved in a road traffic accident on 02.08.2013, within the jurisdictional limits of Abids police station, as he was dashed by auto and on the same day he was admitted in the Opposite Party Hospital at 3.00 p.m. It is not in dispute that Pw1 was subjected to medical tests and investigation and was diagnosed with left hip fracture and advised to undergo operation. It is also not a dispute that an operation was performed on Pw1 on 03.08.2023 with the procedure of cemented Bipolar Hemiarthoplasty i.e., FX NOF LEFT HIP. As per Ex.A2 he was admitted with swelling + tenderness + restricted movements. Ex.B1 goes to show that high risk consent form was signed by wife, son and brother in law of Pw1, besides Pw1 himself. It further goes to show that Pw1 was noted as an elderly person with obesity, Hypertensive, alcoholic, smoker with history of Gastric Ulcer, Fatty liver-two years back, Piles. It is also mentioned the chances of Mal-union and infection are 2 to 5% and chances of shifting the patient to higher center at 2 to 3%.
610. The above consent form itself which contained the signatures of Pw1 and his family members goes to show that, they were appraised about the pros and consequences of the operation and also the risk involved there in. Added to the same Pw1 admitted in the Cross examination about the information to family members at the time of admission, and subscribing of signatures by them on the high risk consent form/Ex.B1; PW1 also admitted that during his stay in the hospital, all this surgeries, procedures and treatments are mentioned in the documents relied on by the Opposite Party and he also got knowledge about the experience of Rw1 in performing the operations on the Orthopedic side for the last 2½ decades and also Pw1 got knowledge regarding the efficiency of Doctor and further that reason only, he was admitted in the Opposite Party hospital. In view of the above facts, it is foregone conclusion that the contention of Pw1 that he was kept in dark regarding the treatment and also the risk involved in the operation etc., is a false statement.
11. In the argument another angle is projected that without consent and information, Rw1 removed the Bipolar prostheses. It is important to note that admittedly Pw1 went to the Opposite Party hospital with an infection at the facture site and when pain was subsisting. It is clearly mentioned in the B2 that, Pw1 was diagnosed with post-operative infected left hip Bipolar prosthesis and surgery was performed in removing implant and cement and tissue biopsy. It is also mentioned in the case sheet that, attendants were informed by the doctors about the condition of patient i.e., infected prosthesis of left hip and about the surgery to remove prosthesis/debridement etc., and also mentioned about the consequences i.e., shortening of limb, limp on walking, chances of reinfection, need for repeated surgeries, it required in case of chronic infection and also about the risk involved in the anesthesia/blood transfusion/surgery and having accepted for the same, again Pw1, his son and wife signed beneath above noted writings. It shows even at the time of removal of bipolar cement prosthesis, Pw1 and his family members were informed about the 7 risk involved in the operation. For reasons better known to Pw1 he denied giving the consent for both the operations and mischievously pleaded that he had no knowledge about the removal of the implant and consequences involved in the operations.
12. Then the next question that comes for the consideration is the alleged negligent treatment said to have been given by the Opposite Party. It is not the contention of the Pw1 that the first and second operations were performed on him without any necessity. Where exactly, the Rw1 was negligent in giving the treatment is not mentioned anywhere. Rw1 is also not examined in cross, to establish the negligence if any on his part. No expert Doctor is examined on behalf of Pw1 to prove that on what aspect Rw1 went wrong, while treating Pw1. The shortening of leg is not a ground by itself to presume that the treatment was given negligently to Pw1. In the second consent form itself it is mentioned that there is a possibility for shortening of limb including limp on walking and chances are there for repeated surgeries. Therefore, we are of the view that there is no negligence or any deficiency of service on the part of Rw1 while giving treatment to Pw1.
13. The allegation of the discontinuation of studies by son and daughter of Pw1 is not established with any documentary evidence. On the other hand in the absence of the negligent or deficiency of service by the Opposite Party, the above aspect pales into insignificance. Same is the case with the alleged financial loss suffered by Pw1. No body from the Kamineni Hospital is examined to support the estimation of expenditure given by them under Ex.A5. When Rw1 is not found fault with any negligence, the Ex.A5 is also has no bearing on the case. Case law relied upon by Appellant Counsel in viz., 1.2010(3) CPR 101 (SC). 2. 2008(1) CPR 237 (SC). 3. 2008(1) CPR 267 (SC). 4. 2009(3) CPR 51-Tamil Nadu State Consumer Dispute Redressal Commission. 5. CC. 229/2014 between Takur Dasharatha Ram Singh and Rohini Super Speciality Hospitals and another by this Commission (Additional 8 Bench) are noway helpful to Pw1 and facts therein are no way related to present case. So, all the points are answered against Appellant/Complainant.
14. IN the result the Appeal is dismissed without costs by confirming the order in CC 298/2015 dated 30.01.2019 by the learned District Consumer Disputes Redressal Forum-II, Hyderabad.
Sd/- Sd/-
MEMBER(M-J) MEMBER (M-NJ)
Dated : 29.01.2024
*KSK