State Consumer Disputes Redressal Commission
Dr. Arangamurugan, Government ... vs S. Sakthivel, Valluvar Colony, ... on 14 September, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Tmt.Vasugi Ramanan, M.A., B.L., MEMBER F.A.561/2008 [Against order in C.C.No.13/2006 on the file of the DCDRF, Tiruvarur] DATED THIS THE 14th DAY OF SEPTEMBER 2011 Dr. Arangamurugan, | Government Hospital Melpuram, | Appellant / Opposite Party Mannargudi Town, | Tiruvarur District. | Vs. S. Sakthivel, | Respondent / Complainant S/o.Somu, | Valluvar Colony, Marakadai, Lakshmangudi Post,HoH | Needamangalam Taluk, Tiruvarur District. | The respondent as complainant filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to pay Rs.3 lakhs towards compensation for mental agony, sufferings and medical expenses. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.20.06.2006 in C.C.56/2005.
This appeal coming before us for hearing finally on 23.08.2011, upon hearing the arguments of the either counsels and perused the documents, Written Arguments of both side, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant / OP : M/s.Anand, Abdul & Vinod, Advocate.
Counsel for the Respondent/ Complainant : Mr.K.Ganesan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. Brief facts necessary for disposal of the case:-
On 21.11.2004, the complainant had a fall from a tree and sustained injury on his right side scrotum,, as a stick pierced the scrotum, for which, he approached the opposite party-doctor for treatment at about 12 p.m. The opposite party examining the complainant, noticing an open wound, gave saline wash, widened the injury and according to him, there was no such foreign body available, thereby he closed the wound by sutures, for which, he had collected a sum of Rs.2,000/-. The pain, problem has not come to an end and therefore, he approached the opposite party on 28.11.2004, on which date, sutures were removed and the complainant was informed that there may be some pain because of the removal of the suture and it will be alright in due course of time.
But, as informed by the opposite party, there was no complete healing, swelling continued, even suspecting pus and therefore, the complainant approached the doctor at Mannarkudi by name Asokan, who had examined the complainant on 1.12.2005 and gave treatment upto 5.1.2005 as inpatient. During the investigation, doctor has noticed, a foreign body was inside the scrotum, for that, surgery was performed at Government Hospital, Mannarkudi and finally discharged on 19.1.2005. Thus, due to improper diagnosis and negligence committed in not treating the injury properly at the first instance, the complainant had suffered for 36 days, spending Rs.50,000/-, causing mental agony, which is to be reimbursed by the opposite party, since failed, despite legal notice. This consumer complaint is filed for the recovery for a sum of Rs.3 lakhs.
3. The appellant/opposite party would contend that he had treated the complainant/patient, as per the medical procedure and his sincere attempt to find out any foreign body, was not visible at that time. He has further stated that the x-ray, clinical examination has not revealed the presence of foreign body and therefore, treating the patient as per the established procedure, he closed the injury by sutures and prescribed medicines as well as Antibiotic and discharged on the same day, which cannot be treated as deficiency in service. The complainant, as advised, come for review on 28.11.2004, on which date, this opposite party noticed only a small amount of swelling, then removing the sutures, prescribing medicines, advised him to come for review, if there is any fresh complaint or if the swelling does not disappear. Within three or four days, the complainant came to the opposite party, complaining swelling did not get reduced, examination revealed no abnormality causing concern except the small amount of swelling at right scrotum and therefore, advised him to come for review after one week, informing the sensitiveness, if surgery is needed. The complainant did not turn up for review and later the opposite party came to know, that he went to Government Hospital at Mannarkudi and removed a foreign body by intervention of surgical procedure, for which, the opposite party cannot be held responsible, claiming a sum of Rs.3 lakhs as compensation, since he has not deviated any acceptable, established procedure in giving treatment to the complainant.
4. The District Forum based upon rival contentions of the parties as well relying upon the medical literature brought to its notice, felt that the opposite party has not exercised proper care and caution, at the time of diagnosing and giving treatment, thereby it has reached a conclusion that there was deficiency in service and negligence on the part of the opposite party.
On the basis of this finding, though the complainant had claimed a sum of Rs.3 lakhs as compensation, considering the medical bill, as well as the nature of sufferings, the District Forum directed the opposite party to pay only a sum of Rs.25,000/- as compensation with costs of Rs.3,000/-, granting time, failing default interest, which is impugned in this appeal.
5. The learned counsel for the appellant would contend, that the complainant has failed to prove the alleged negligence, as well as deficiency in service by letting in expert witness, that when the opposite party has not committed any professional deviation, being a qualified doctor, committed no error, the District Forum committed error directing to pay compensation, fixing negligence, ignoring the established norms and procedure followed by him and therefore, the order is liable to be set aside, which is challenged, informing us, how the doctor had committed negligence, how he failed to diagnose the problem of the patient, adopting the standard procedure. In order to appreciate the rival contentions, certain facts, admitted in nature, are to be remembered.
6. The complainant sustained an injury on his right side scrotum, because of a fall from a tree, as a stick has pierced the scrotum on 21.11.2004 morning.
Immediately at about 12 p.m., he approached the opposite party-doctor for treatment. The opposite party examining the nature of injury and unable to locate any foreign body on seeing sutured the wound, prescribed medicines with an advise to come for review, after some days. Admittedly on 28.11.2004, the complainant came to the opposite party for review, had the problem also. The opposite party having noticed a swelling, failed to probe the matter further and taking casually, removed the suture, claiming that he did this procedure as per the established procedure, in addition, prescribing medicines.
Believing the words of the opposite party, the complainant who had been to his house, unable to get any relief then compelled to approach the opposite party once again within three or four days, even as admitted by the opposite party, in the Written Version as well as in the Written Submission, with swelling. The opposite party at the third time also, has not exercised proper care and taking the swelling as not an abnormal one, advised the complainant to come for review after one week, assuring the drugs prescribed by him would take care of the swelling. Thus, unable to get the relief by going to the opposite party-Doctor three times, the complainant approached another doctor, who has been examined as PW2, who treated him and after surgery, removed a foreign body also from the scrotum injury, thereby giving complete relief.
In view of the above narrated facts, the complainant felt that the opposite party has not properly diagnosed the injury, explored the injury, which resulted swelling, continues problem, that should be construed as negligent act as well as deficiency in service and for the sufferings, he should have compensated, resulting the consumer complaint, ending in partial success, which is disputed.
7. The submission of the learned counsel for the appellant that he had followed established procedure alone, cannot relieve him, from the negligence or deficiency committed by him in this case, which can be seen by applying the principles Res Ipsa Loquitor. The complainant having suffered injury, on the right scrotum, narrating how he sustained injury, approached the opposite party for treatment. As rightly submitted by the opposite party, the injury was in a sensitive place, and in this view of the fact, it requires more attention and careful analysis, to find out whether any foreign body was inside and to find out the same, since there are many methods. At the first instance, the opposite party washed the injury, cleaned, sutured since he was unable to locate or see any foreign body, despite x-ray that cannot be faulted, we will take it. Second time, the complainant came to the opposite party, complaining swelling, pain and atleast at that time, the opposite party should have exercised more care as a prudent doctor, which he failed, this should be construed as deficiency in service. Not only that, when the complainant came to him, complaining the pain third time, it must be the duty of any prudent doctor, who is expected to apply due care and caution towards the patient, to probe the matter further, instead of prescribing medicines, advising him to come for review, if the swelling has not subsidized, forgetting the fact, from the first treatment, the swelling has not reduced. This act on the part of the opposite party should be construed as negligent act.
8. As rightly submitted by the learned counsel for the respondent/complainant Ultasonography is commonly performed for the scrotum abnormalties, which can disclose the foreign body also. An article produced on behalf of the respondent says Ultrasonography (US) is commonly performed for the assessment of scrotal abnormalities. It is ideal for the assessment of scrotal trauma, as it can be used for noninvasive evaluation of the scrotal contents, testicular integrity, and blood flow, as well as to visualize hematomas, other fluid collections, and foreign bodies, which principle is not challenged. If the opposite party-doctor had exercised due care, he should have advised the complainant, to go for Ultrasonography, which he failed, which has to be construed as breach of duty as well as negligence, leading to deficiency in service. The fact, the opposite party failed to take the minimum caution and care required by any prudent surgeon itself is sufficient, to hold that he has not discharged his duty properly, attracting the doctrine of Res Ipsa Loquitor, since there was a foreign body, causing swelling even infection to some extent, giving problem, which was cleared by another doctor.
9. In the Written Version itself, the opposite party has admitted that he came to know, that the complainant had gone to the Government Hospital at Mannarkudi, where a surgery was conducted to explore the presence of any foreign body and during which it was found that there was a very very small pinch of a piece of the stick, which was surgically removed. This should have been done by the opposite party, atleast when the complainant came to him at the third time, complaining of the swelling pain, which he failed and this act cannot come within the meaning of a doctor conducting himself prudently, whereas it should be taken, as negligent act, committing breach of duty. It is not the case of the opposite party, that there was no foreign body or the complainant has not suffered despite his treatment or his treatment had completely relieved the complainant from the suffering etc.,
10. As spoken by PW2 and as seen from Ex.A13, the complainant was admitted in the hospital, treated as inpatient from 6.1.2005 to 19.1.2005 and the foreign body was removed from the right scrotum, wherein the complainant sustained injury, for which alone, he had taken treatment from the opposite party.
The doctor who treated later has deposed that if the foreign body was not removed, the pain and suffering would have continued, causing infection, preventing the patient to attend day to day work, which part of the evidence is not very much challenged, though he was elaborate, in the cross examined about the original treatment given to the complainant by the opposite party. As we have repeatedly said, if the treatment was the first time alone, we may not find fault with the opposite party since he would have bonafidely believed by clinical examination, no foreign body was visible, though failed to go for Ultrasonogram.
But, when the patient repeatedly complaining the same pain, the opposite party should have properly analyzed the case would have taken Ultrasonogram, which would have revealed the foreign body, and since he had failed to do, that dereliction also should be construed as negligent act, followed by deficiency in service, which was properly considered by the District Forum, in which finding, we are unable to find any error, warranting our interference.
11. Regarding the quantum of the compensation also, considering the sufferings and medical expenses, being an inpatient, we feel, it is not on the higher side, not warranting our interference. Hence, the appeal is devoid of merit, liable to be dismissed.
12. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Tiruvarur, in C.C.13/2006, dated 20.12.2007. No order as to cost in this appeal.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT