State Consumer Disputes Redressal Commission
M/S. Bone And Joint Clinic Rep. By Dr. ... vs Anusuya No.22/C, Shanthi Nagar Iii ... on 3 June, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan,M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.160/2006 (Against order in C.C.NO.179/2003 on the file of the DCDRF, Chennai (North) DATED THIS THE 3rd DAY OF JUNE 2010 1.
M/s. Bone and Joint Clinic Rep. by Dr. Soundarapandian AA16, III Main Road, Anna Nagar Chennai 600 010
2. Dr. Ravisubramanian M/s. Bone and Joint Clinic
3. Dr. Siva Murugan M/s. Bone and Joint Clinic Appellants/Opposite parties Vs. Anusuya No.22/C, Shanthi Nagar III Street Chennai 600 088 Respondent/ Complainant The Appellants as Opposite parties filed a complaint before the District Forum against the appellants/opposite parties, praying for certain relief. The District Forum allowed the complaint granting Rs.3 lakhs as compensation. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.28.10.2005 in COP No.179/2003.
This petition coming before us for hearing finally on 25.3.2010. Upon hearing the arguments of the counsel on either side, this commission made the following order:
Counsel for the Appellants/opposite parties: M/s.P.R. Raman, Advocate Counsel for the respondent/ Complainant: Mr. K. Rajan, Advocate M. THANIKACHALAM J, PRESIDENT
1. The opposite parties in OP.No.179/2003 on the file of District Consumer Forum, Chennai (North), having failed to resist the case of the complainant, successfully, have come to this Commission, impugning the order dt.28.10.2005.
2. The complainant/ respondent, had an accident on 20.3.2000, by fall, in which she sustained injury on her right hip, for which, Bipolar Hip Replacement Right, surgery was carried out by the opposite parties, in between 20.3.2000 to 23.3.2000, by spending a sum of Rs.43,350/-.
3. After two years, in the month of March, the complainant experienced pain in the right hip, for which she consulted M/s.
Balaji Hospital, where she was advised to have surgery, since the Bipolar Hip Replacement Right surgery, performed by the opposite party was not proper, and it had broken, thereby causing immobilization of the complainant, even unable to walk. Thus it is clear, the opposite parties were negligent, careless and had acted with utmost callousness in using the defective instrument for implant. By the surgery conducted on 31.3.2002, by M/s. Balaji Hospital, Guindy, they have removed the broken instrument, implanted by the opposite party, then replaced it with another instrument. Because of the improper treatment, the complainant had to suffer chronic pain, and the same was also caused, by using substandard equipment, which lead to near death situation, for the complainant due to the post operative complications.
For performing correct surgery, it had caused a total sum of Rs.2 lakhs, which is liable to be paid by the opposite parties. Not only that, because of the negligence committed by the opposite party, the complainant was compelled to incur ICU charges at MMM Hospital, subjected to physical pain, mental agony and financial crisis, for all the complainant is entitled to a sum of Rs.10 lakhs with interest. Since the opposite parties failed to respond positively, the complainant was constrained to file the complaint.
4. The brief facts of the defense of the opposite parties:
On 20.3.2000 evening, when the complainant was brought to the opposite parties hospital, X-ray revealed intra capsular fracture of the neck of femur bone, for which she was advised to undergo hip replacement surgery. The Prosthetic device was imported from Zimmer Company in UK, which was found to be very effective, and relatively long lasting. Using that device alone the surgical procedure was completed on 23.3.00.
After discharge, the complainant has not consulted the opposite party, at any point of time, and in fact, it is not known to the opposite parties also, about what kind of treatment she had received from anyother hospital.
5. The operation was performed properly with due care, using standard materials. If the Prosthetic device had broken, it cannot be attributed to any negligence on the part of the opposite parties, since the life is subject to wear and tear, as well if the patient was not careful, there is likelihood of breakage. In the case of the complainant, the prosthetic device could have been retrieved, and it would have been easy for the expert to say, if the instrument was a bogus one, which was not done by the complainant. Therefore, the averments, that the opposite parties have not performed the surgery properly or committed negligence, are all imaginary invention, to support a high and tall fanciful claim of Rs.10 lakhs, for which respondents are not at all liable. Further there is no cause of action, against the opposite parties, and in fact the claim is barred by limitation also. Hence it is prayed the petition may be dismissed with cost.
6. The District Forum, purely based upon a certificate issued by the doctor (Ex.A12), taking it as an expert evidence, concluding that it was not challenged or controverted, came to the conclusion that the case of deficiency in service on the part of the opposite parties was proved. Thus concluding, considering the age of the complainant and other attending circumstances, fixed the quantum of compensation at Rs.3 lakhs, and directed the opposite parties to pay the said sum as per the order dt.28.10.2005, which is impugned in this appeal.
7. Heard the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and also the order passed by the District Forum.
8. On behalf of the appellants, the learned counsel would contend, that there is no material of any kind, to prove the alleged negligence, or to prove the alleged substandard materials, said to have been used by the opposite parties, that in the absence of expert opinion, to prove the above points, which are essential, on the basis of surmise and conjuncture, including presumption, which was not permissible, the District Forum has passed an order, not supported by legal flavour, and in this view, it should be eclipsed or upset, as the case may be.
9. Opposing the said submissions, it is the submission of the learned counsel for respondent/ complainant, that the discharge summary issued at the time of the second surgery, and the certificate issued by the doctor concerned are sufficient, which should be taken as expert evidence, on which basis, a decision has been rendered, should be accepted.
10. By going through the documents, relied on by the complainant, as well the inaction on the part of the complainant, then perusing the pleadings, and hearing the parties as said above, we are of the view, that the District Forum has misconstrued the documents-certificates, and discharge summary alone, as if they are expert opinion, in the absence of supporting affidavits, thereby it had committed blunder, which is to be rectified. The further mistake committed by the District Forum, appears to be, as if the burden was upon the opposite parties, to prove certain things, which is not the law. Law has not allowed/ permitted the Fora to presume, that the doctors should have performed the surgery negligently, or should have used certain materials, which is substandard. In the absence of the presumption available under the law, it is beyond the capacity of the Forum, to say that the opposite parties have to prove certain things, which also should be erased. Further, as rightly submitted by the learned counsel for appellants, what is an expert evidence, under what circumstances a certificate given should be challenged etc., and whether opportunities have been given to the otherside, are all not properly considered by the District Forum, which alone lead the District Forum, to take an erroneous conclusion, and in this view also, we are constrained to interfere in this case, in order set right the obvious mistakes committed by the District Forum. To decide the above points, now we have to see the admitted facts, and the action followed, including limitation.
11. The complainant, in an accident on 23.3.00, sustained injuries on her right hip, not under challenge. For the said injury, she had taken treatment with the opposite parties, between 20.3.00 to 23.3.00, is also not in dispute. In the course of the treatment, an instrument was implanted (Bipolar Prosthesis), in the right hip, which is the known procedure. The doctor, is a qualified doctor, since not questioned, as if having no qualification, to treat this kind of fracture, but he attempted to do so, thereby he was careless or negligent as the case may be. Thus we can take it safely, a qualified doctor, having hospital, treated the patient, adopting correct method of surgery, and the surgery performed is also not in any way faulted, except accusing that he used substandard equipment, in conducting the operation, which had broken subsequently.
The operation, or surgery was performed on 23.3.00, which date is given as cause of action, though the year is incorrectly given as 2002. After operation, we can say, admittedly the complainant had not complained any problem, to the opposite parties, such as because of the improper treatment given by the opposite parties, she was put to any inconvenience etc., Till March 2002, when she had to been to M/s. Balaji Hospital, it appears there was no problem. If Really, by the operation or by the alleged use of substandard prosthesis, problem had occurred, normally the patient should have gone to the doctor concerned, accused him, then not satisfied with his treatment, would have gone to someother doctor, it is not the case here. For the alleged negligence or carelessness, said to have been committed by the opposite parties, between 20.3.00 to 23.3.00, the complainant claimed a sum of R.10 lakhs on 21.3.2003, i.e., after the lapse of 3 years. In the cause of action paragraph also, the date is given as 23.3.00, when the defective surgery, using the defective instruments, for implantation was performed upon the complainant, by the opposite parties.
So far as the 2nd cause of action is concerned, it is not the direct cause of action, or first one, prima-facie unless it is connected or linked. Therefore, it is clear, as rightly submitted by the appellant, that after the lapse of two years alone the case has been filed.
12. Sec.24 (A) of the Consumer Protection Act mandates, not to take the case on file, if the case has been filed after two years, from the date of cause of action, thereby imposing a mandatory bar. In view of the admitted position, a case has been filed after two years, it should be held, that the claim is barred by limitation, which was not at all considered by the District Forum.
13. It is not the case of the complainant, as seen from the complaint, that there was continuous cause of action, or to claim compensation, new cause of action had arisen against the opposite party, etc. No petition also has been filed, though Act gives such a right, claiming exemption. In the absence of any such plea, claiming exemption viz. to condone the delay it should be held or affirmed, that the claim is barred by limitation, and in this view, irrespective of other merits, the petition is liable to be dismissed.
14. As seen from para 5 of the complaint, it is the case of the complainant, that the opposite party hospital was negligent, careless, and had acted with utmost callousness, in using the defective instrument of implant. Then in paragraph 6, it is said, substandard equipment in conducting the operation, had been used. No other kind of medical negligence has been alleged, such as unqualified doctor, not followed the protocol or the substandard procedure prescribed, by the known text, etc. Therefore, the initial burden is upon the complainant to prove that defective instrument for implant was used, or the equipment fixed was of substandard in nature.
The opposite parties, in their written version, would contend, that the device used was imported from Zimmer Company, in UK, further asserting that will lost even upto 15 years, if the patient was careful. This is the case of the complainant also probably based upon the certificate given by the doctor, working in M/s. Balaji Hospital. The complainant has not examined any expert person, to prove that the implant, used by the opposite party was substandard in nature, or it had broken due to manufacturing defect, or something like that. As said above, for two years, it seems, there was no problem of any kind.
It is the case of the opposite party also, as seen from written version, that the life of the prosthesis is subject to wear and tear, and if the patient is not careful, there is likelihood of breakage, thereby informing the probability for breakage also, despite the life assured for 15 years. In this view, it is for the complainant to make out a case that she was careful, and despite, the prosthesis had broken. When the complainant had suffered, the pain after two years, certainly she should have gone to the doctor, who performed surgery, and implanted prosthetic device.
In this case, it is not known why the complainant had not approached the opposite party, since it is not her case, that she had any problem at the time of the 1st surgery, with the opposite party. We are even inclined to think, whether it is correct or not, she might have sustained someother injury, causing breakage, and probably to avoid, she might have gone to someother hospital. Be it as it may. The position will not be changed, and it is for the complainant to make out her case of substandard material, or the negligence.
15. The main support, sought for by the learned counsel for complainant, to prove the negligence, or substandard material said to have been used by the opposite parties, was the discharge summary, issued by Sri Balaji Hospital, and the certificate (Ex.A20) issued by one Dr. L.Subramanian, on 17.5.2003. The District Forum also considered Ex.A12, as if is an expert opinion, or expert evidence, which cannot be, as held by the Apex Court in Ramesh Chandra Agarwal Vs. Regency Hospital Ltd., & Ors. reported in AIR 2010 Supreme Court 806. The Apex Court, while dealing expert witness, credibility, has observed his evidence is of advisory character, and credibility of such witness depends on reasons, stated in support of his conclusion, and data and materials furnished, which form basis of conclusions , which are all absent in the case in our hand. The District Forum, unnecessarily commented upon the opposite parties, as if the evidence was not rebutted by the opposite party, and the doctor was not cross examined by the opposite party, to prove their contention. In fact, the doctor who had issued Ex.A12, has not been examined as a witness, on behalf of the complainant, and this being the position, we do not find the logic behind the observation of the District Forum, that the Doctor has not been cross examined. It is also seen from the records that the doctor has not filed any affidavit also, in support of Ex.A12. This being the position, question of rebutting the certificate or cross examining the said doctor, will not arise for consideration, and in our view, the District Forum, traveled unnecessarily, beyond the scope, not understanding the law properly, thereby committed error.
16. If Ex.A12, was certain, supported by the discharge summary, atleast we can have some dependency, which are also absent in this case. In Ex.A12, certificate issued, after the case was filed, nowhere the doctor said with certainty, based upon reasons, as observed by the Honble Supreme Court, that the prosthesis was poor quality, or it had manufacturing defect etc., whereas it says The prosthesis, which was used for her, was found to be broken, probably due to poor quality of the meta or some manufacturing defect. Normally this prosthesis is supposed to last for a period of minimum 5 10 years, there by indicating, the so called expert is also not certain, whether the prosthesis used was of poor quality or it had manufacturing defect.
If retrieved prosthesis had been produced, before the Fora, by sending it to an expert, certainly we would have found out, whether it was a poor quality, or had any manufacturing defect etc.
17. The discharge summary (Ex.A5), issued by Sri Balaji Hospital, would disclose broken of bipolar prosthesis (R) hip.
It does not say, it had broken due to poor quality or manufacturing defect, or despite the patient was very very careful, it had happened. The copy of the X-ray available, is not correlated with the bipolar prosthesis, fixed by the opposite party. On the basis of the cost also, in the absence of actual material, one cannot say, a substandard material was used by the opposite party, resulting the complications after two years. Unfortunately, the District Forum, without going into detail, for the problem occurred after two years, from the date of surgery, unnecessarily and unwantedly, fixed medical negligence upon the qualified doctors, which should be removed, which follows the complainant is not entitled to any relief. For the above reasons, the appeal deserves acceptance.
18. In the result, the appeal is allowed, setting aside the order of the District Forum in C.C.No.179/2003, dt.28.10.2005, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Medical