State Consumer Disputes Redressal Commission
Dr.C.Balasubramaniam, J.K.Medical ... vs Subramani, S/O.M.Senniappan, ... on 20 April, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Honble Thiru Justice R.REGUPATHI, President Thiru.A.K.Annamalai, Judicial Member F.A.No.527/2010 & 547/2010 [Against order in C.C.No.22/2009 on the file of the DCDRF, Erode] FRIDAY, THE 20th DAY OF APRIL 2012. F.A.No.527/2010 Dr.C.Balasubramaniam, J.K.Medical Centre, Near Bus Stand, Kangayam. .. Appellant/2nd opposite party /Vs/ 1. Subramani, S/o.M.Senniappan, Sambhavalasu, Kangayam Taluk, Erode District. .. 1st Respondent/Complainant 2. Dr.T.P.Arul Nallasamy, J.K.Medical Centre, Near Bus Stand, Kangayam. .. 2nd Respondent/1stopposite party Counsel for Appellant/2nd Opposite party : M/s. B.L.Lavanya, Advocate. Counsel for 1st Respondent/Complainant : M/s.K.S.Jaya Ganesan, Advocate. Counsel for 2nd Respondent/1st opposite party : Given up. F.A.No.547/2010 Dr.T.P.Arul Nallasamy, J.K.Medical Centre, Near Bus Stand, Kangayam. .. Appellant/1stopposite party /Vs/ 1. Subramani, S/o.M.Senniappan, Sambhavalasu,Kangayam Taluk, Erode District. .. 1st Respondent/Complainant 2. Dr.C.Balasubramani, J.K.Medical Centre, Near Bus Stand, Kangayam. .. 2nd Respondent/2ndopposite party The 1st Respondent as complainant filed a complaint before the District Forum, against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.25,000/- towards wrong operation charges, to pay Rs.70,000/- towards second operation charges and to pay Rs.4,00,000/- towards compensation for mental agony and to pay Rs.5,000/- as costs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dated 29.7.10 in C.C.No.22/2009. The appeal coming before us for hearing finally on 3.4.2012, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for Appellant/1st Opposite party : M/s. V.Balaji, Advocate. Counsel for 1st Respondent/Complainant : M/s. K.S.Jaya Ganesan, Advocate. Counsel for 2nd Respondent/2nd opposite party : Given up. COMMON ORDER
A.K.ANNAMALAI, JUDICIAL MEMBER
1. Opposite parties are the appellants come forward with separate appeals.
2. The complainant had undergone treatment with the 1st opposite partys hospital in which the 2nd opposite party performed the surgery for appendicitis. After some months of the treatment since the complainant had developed pain in the stomach and other complications he got advise from one Gem Hospital at Coimbatore and subsequently undergone another surgery and the complainant alleged that because of the improper sutures made by the 2nd opposite party during earlier surgery, the subsequent developments were occurred and thereby there was negligence on the part of the opposite parties which made him to file a consumer complaint claiming Rs.25,000/- towards compensation for wrong surgery and Rs.70,000/- towards expenses for the second surgery and Rs.4,00,000/- towards compensation for mental agony, physical strain and negligence and Rs.5,000/- as costs.
3. The opposite parties denied the allegations of the complainant in their written version and contended that the complainant had treatment with them for the appendicitis and got admitted on 16.7.08 and the surgery was performed on 17.7.2008 and he was discharged on 23.7.08 with advised to follow the post operative instructions and thereafter one week later for the complaint of pain in the operative site the wound found infected.
There were pus collection for which necessary treatment and dressings were given and medicines were prescribed and advised to continue the medicines. After two months once again complainant come forward with complaints of mild swelling and pain over the operative site and it was diagnosed as the incisional hernia and advised for surgery for which he did not turn up to the opposite parties and it is not correct to say that Hernia occurred due to improper suture during the operation conducted by the opposite parties and it is the result of failure of facial tissues to heal and close following laprotomy which can occur as post operative complications due to various factors like age mal nutrition presence of ascites, cortico steroid use, diabetes, cigarette smoking and obesity. Hence the allegations of the complainant are baseless and he has paid only Rs.9,500/- towards surgery and other expenses not Rs.25,000/- as alleged. Further since the complainant demanded discharge summary to suit the medical insurance claim which was refused to furnish a wrong particulars on account of which the complainant got antagonized and complaint was filed with ulterior motive.
4. Based on both sides materials and after an enquiry, the District Forum came to the conclusion that there was deficiency on the part of the opposite parties due to improper suture which made the complainant to have second surgery for Hernia thereby caused mental agony and expenses and allowed the complaint with direction to pay the sum of Rs.9,500/- towards the charges already collected and Rs.14,000/- towards expenses for the second surgery made and Rs.1,00,000/- as compensation allowing with cost of Rs.2,000/- payable by the opposite parties.
5. Aggrieved by the order of the District Forum, the opposite parties 1 and 2 have come forward with separate appeals in F.A.No.547/2010 and 527/2010 respectively.
6. In the grounds of appeal they have contended among other things the District Forum erroneously taken in to consideration of the details of discharge summary under Exhibit A8 issued by the Gem Hospital and thereby a wrong conclusion was arrived at the finding by the Gem Hospital the presence of peritoneal tuberculosis which is totally unconnected with earlier surgery and the person who undergoes open abdominal surgery is at the risk of incisional hernia which may cause due to various factors and there was no negligence on the part of the opposite parties and the finding relating to the operation would reveal the facts and circumstances of the case thereby these appeals are to be allowed.
7. Since both the appeals are arising against one and the same impugned order passed in C.C.No.22/2009 by the District Consumer Forum, Erode, these appeals are taken together, heard in common and the order being passed in common on merits.
8. While considering both sides arguments, averments and contentions it is not in dispute that the complainant had undergone surgery for appendicitis with the opposite parties hospital and the surgery was performed by 2nd opposite party and after some months later the complainant undergone another surgery at Gem Hospital and the complainant alleged it was happened because of due to improper sutures were made during the first surgery by the opposite parties and thereby he had come forward with the complaint. It is also not in dispute that he had undergone treatment at Gem Hospital and because of the results which caused him to come forward with the case alleging negligence and deficiency on the part of the opposite parties.
9. While considering the dates of events the complainant had at the earliest approached the opposite parties on 7.5.08 for acute pain and it was found acute appendicitis and subsequently he got admitted for the surgery on 16.7.08 with opposite parties and surgery was performed on 17.7.08 and he was in the hospital for treatment till 23.7.08 and he was discharged. At the time of discharge from the records relied upon by both sides it is seen that the complainant was not having any complaint against the opposite parties and no symptoms or complications or other difficulties were reported except to state that after a week due to infection in the wound dressing was given with treatment of antibiotics and subsequently it is alleged by the opposite parties after two months he approached for swelling in the stomach and pain for which he was suggested another surgery for suspected Hernia.
But only after nearly 5 months from 23.7.08 as per the Gem Hospital record under Exhibit A8 he got admitted with that hospital for treatment on 3.12.08 and the surgery was performed on 4.12.08 and was discharged on 5.12.08. On perusal of Exhibit A8 discharge summary the complainant made complaint of occasional abdominal pain in umbilicus of swelling in operated site and others symptoms are normal and was stated open appendectomy was done 4 months back and through the scan it is revealed incisional hernia prominent bowl loops seen in the left side of lower abdomen and it was diagnosed incisional hernia with treating peritoneal tuberculosis abdomen and surgery was suggested for diagnostic laparoscopy with tuberculosis biopsy and in the findings it was found 6X5 cm right illioc osa defect with small intestinal loop adherent in this sac. Multiple flimsy additions of liver.. and the procedure was adopted with laparoscopy using 3 ports and during post operative period observed the patient was admitted for laparoscopy IPOF. In view of treating peritoneal tuberculosis the procedure was postponed and discharge advise given to take normal diet to attend normal work review after one week to follow the medicines and to remove plasters on 7.12.2008. The District Forum from these details available under Exhibit A8 and from the details of findings it relating to the defect in illiac cosa with small intestinal loop came to the conclusion that it was because of the improper surgery and improper suture done by the opposite parties happened. This view was wrongly taken by the District Forum while considering the dates of events and it is to be noted that after the first surgery performed on 17.7.08 and after discharge of 23.7.08 only on 3.12.08 nearly after 5 months, the complainant approached Gem Hospital and in the meanwhile there are no records to show that he had any symptoms of serious complication and unbearable pain got complications because of the earlier surgery performed by the 2nd opposite party etc. The learned counsel for the appellants have brought to our notice regarding the post operative complications in case of open method appendecetomy and relied the medical literatures through which it is elecited . From the book MANNGOTCS ABDOMINAL OPERATIONS 11th Edition.
POSTOPERATIVE VENTRAL WALL (INCISIONAL) HERNIA that A postoperative ventral abdominal wall hernia, more commonly termed incisional hernia, is the result of a failure of fascial tissues to heal and close following laparotomy. Such hernias can occur after any type of abdominal wall incision, although the highest incidence is seen with midline and transverse incisions.
Postoperative ventral hernias following paramedian, subcostal, McBurney, Pfannestiel, and flank incisions have also been described in the literature. Laparoscopic portsites may also develop hernia defects in the abdominal wall fascia.
And further it is also pointed out that, Multiple risk factors exist for the development of an incisional hernia. Some of these risks are under the control of the surgeon at the initial operation, while many others are patient-specific risks for postoperative ventral hernia include advanced age, malnutrition, presence of ascites, corticosteroid use, diabetes mellitus, cigarette smoking and obesity. Emergency surgery is known to increase the risk of incisional hernia formation. Wound infection is believed to be one of the most significant prognostic risk factors for development of an incisional hernia. It is for this reason that many surgeons advocate aggressive and early opening of the skin closure to drain any potential infection at the fascial level.
Postoperative sepsis has also been identified as a risk for subsequent incisional hernia.
From these details it is clear that any person who undergoes open abdominal surgery is at risk for incisional Hernia and those risk factors are obesity, weak abdominal musculature, poor nutrition, chronic cough, multiple surgeries and in this case complainant has not come forward to prove what are the post operative management of care he had taken and advices followed etc., as apart from the treatment by the doctor the patient care and follow up action in management of treatment are also must for the complete healing of ailment. Further the learned counsel for the appellant have relied upon a ruling reported in 2004(8) (SC) 56 in which it is observed as follows :-
In the case of the medical profession to pinpoint who is responsible for not providing proper and efficient service This issue, of pinpointing the person concerned in the case of health care, discussed in detail Moreover, in light of the fact that the burden to absolve itself in any case shifts on to the hospital/doctor, and the hospital/clinic concerned has to produce the treating doctor and all evidence that all care and caution was taken by it or its staff to justify that there was no negligence involved in the matter.
Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution/hospital then that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient.
It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.:
In this case the opposite parties have proved that because of the surgery alone the alleged symptoms of subsequent complications after lapse of 5 months have not occurred and as per the biopsy result under Exhibit B6 they have performed correct surgery for appendectomy on the basis of the istopathology scan report under Exhibit B6 and there was no proof to prove that there were improper sutures were made and because of which the complainant had to suffer. Further the case records under Exhibit B1 and progress report under Exhibit B2 would have elicit the stage details of treatment with the opposite parties and the complainant was undergoing treatment and in those circumstances we are of the view that there was no negligence or deficiency in service on the part of the opposite parties giving treatment to the complainant and it is not proved because of the improper suture during earlier surgery the complainant was made to suffer subsequently with other complications especially when such post operative open type appendectomy surgery was performed the patient is at risk for developing Hernia which was proved in this case and for which also the treatment was postponed by the Gem Hospital due to the biopsy report under Exhibit A6 as glaucomatous inflammation suggestive of tuberculosis portonual biopsy that is presence of abdominal TB and thereby in view of the foregoing reasons and discussions made as above the appeals are to be accepted as meritorious by setting aside the order of the District Forum.
10. In the result, the appeals are allowed by setting aside the order of the District Forum, Erode in C.C.No.22/2009 dated 29.07.2010 and the complaint is dismissed.
No order as to costs in these appeals.
11. The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellants, duly discharged.
A.K.ANNAMALAI, R.REGUPATHI JUDICIAL MEMBER PRESIDENT INDEX : YES / NO sg/B-I/aka/Medl.