State Consumer Disputes Redressal Commission
M/S. Sundaram Medical Foundation Dr. ... vs V. Thanikaivelan S/O. Dr. P. ... on 31 May, 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.,B.L., JUDICIAL MEMEBR F.A.NO.12/2007 (Against order in C.C.NO.358/2003 on the file of the DCDRF, Chennai (North) DATED THIS THE 31st DAY OF MAY 2011 1.
M/s. Sundaram Medical Foundation Dr. Rangarajan Memorial Hospital Dr. Mrs. Vijaya Bharathi Rangarajan (Former Executive Director) Rep. by T.N.P.Durai, Director Administration Shanthi Colony, 4th Avenue, Anna Nagar, Chennai 600 040
2. Dr. P.V. Jayashankar M/s. Sundaram Medical Foundation Dr. Rangarajan Memorial Hospital Shanthi Colony, 4th Avenue, Anna Nagar Chennai- 600 040 Appellants/Opposite parties Vs. V. Thanikaivelan S/o. Dr. P. Vivekanandam No.AE-121, Second Floor, Block 78 Shanthi Colony, 4th Avenue Anna Nagar, Chennai- 600 040 Respondent/ Complainant The Respondent as Complainant filed a complaint before the District Forum against the opposite parties, praying for a direction to refund Rs.16297/-, Rs.52,702/- towards operation charges alongwith compensation of Rs.15 lakhs. 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.1.9.2005 in COP No.358/2003.
This petition coming before us for hearing finally on 28.4.2011. Upon hearing the arguments of the counsel on both sides, perusing the material papers on record, lower court records, as well as the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/Opposite parties: M/s. T.K. Bhaskar Counsel for the Respondents/ Complainant: Mr. L. Rajasekar M. THANIKACHALAM J, PRESIDENT
1. The appellants, who suffered an adverse order, in the hands of the District Forum, as opposite parties in OP.No.178/2001, as per the order dt.1.9.2005, have come before this commission, seeking redress, finding fault with the order.
2. The respondent/complainant, approached the District Forum, for the reliefs
a) to refund the amount collected towards the surgery and other Hospitalisation Expenses amounting to Rs.16,297/-
b) to reimburse a sum of RS.52,702/- incurred towards the operation charges and Hospitalisation charges incurred due to the negligence of the complainant
c) to pay a sum of Rs.15,00,000/- towards compensation for the negligence loss of business, disability, pain and sufferings.
On the following grounds:
3. The complainant met with an accident, while riding the scooter on 20.11.00, at 2.45 p.m, in which he suffered the injuries viz.
1. Left wrist: Smith Fracture with dislocation of distal radio ulna joint
2. Right Leg: Comminuted Fracture Proximal 1/3 Tibia with depressed fracture lateral condyle.
for which, he was admitted in the 1st opposite party hospital at 3.30. pm., where the 2nd opposite party treated the complainant, explaining the mode of treatment, for which, the complainant also agreed and pursuant to the same, he was taken for surgery, for which family members have also agreed. Later enquiry revealed, the 2nd opposite party has not performed any surgery, whereas they have applied POP around the leg, which also bivalved, which also rolled round subsequently. Thereafter, the complainant was discharged on 22.11.00, with an advise to come for review on 29.11.00.
4. As advised by the 2nd opposite party, the complainant attended the review, and after examination, the 2nd opposite party instructed his colleagues to apply new POP on the old POP, informing to come for review on 20.12.00, on which date, X-ray was taken, and thereafter the complainant was informed that the fracture in the leg and wrist would be cured with the POP. Inspite of one month treatment, there was no improvement and had no callous formation activity also seen. The right leg was showing a sign of deformity, because the alignment was not proper. Infact the 2nd opposite partys colleague Dr. Kumaresan, twisted the right leg manually, and pushed up the right limb, informing that would hasten the healing ability.
5. After couple of days, the complainant when noticed from the X-ray, that the parallel bone of the tibia, dropped further down, and the deformity in the right leg, shortening of the limb etc., when reported, it was not taken into account.
The opposite parties, not performing surgery, they have charged for surgery also, which they are liable to refund.
There was no sign of improvement, and by the treatment given by the opposite parties, the complainant was dejected, and therefore he was constrained to look for alternative treatment.
Therefore, he was referred to Dr.T.K. Shanmugasundaram, for further treatment, and complainant was admitted in M/s. Kumaran Hospital on 7.3.2001, where surgery was performed on 9.3.2001, later discharged on 21.3.2001, for which treatment, the complainant had incurred a sum of Rs.52,702/-.
6. The course of treatment given by the 2nd opposite party, in the 1st opposite party hospital, for about 3 months, was termed as conservative treatment, which has not given the desired result. As the opposite parties, negligently commenced the wrong treatment, due to wrong diagnosis, they should be held responsible. Because of the immobilization and deformity, the complainant who was doing business, incurred heavy loss, as well suffered mental agony, torture, and therefore claiming compensation, notice was issued, which elicited only reply, false in nature, no reimbursement of the amount. Hence the complaint.
7. The brief defense of the opposite parties:
Absolutely, there was no negligence in the treatment, administered to the complainant, and infact he was treated with the requisite degree of care, which is necessary, under the facts and circumstances of the case. After the accident, when the complainant was admitted in the hospital on examination, two major injuries were noted, they are
a) Comminuted fracture of Proximal 1/3rd Tibia and Fibula with depressed fractures of lateral condyle of Tibia Right leg.
b) Fracture of Distal end Radius with displacement with involvements of distal Radioulnar Joint-Left Wrist.
For which, explaining the mode of treatment including surgery and conservative treatment, consent was sought for, from the complainant, who opted for conservative treatment, for which consent was also given.
On the basis of the consent given by the complainant, the fracture was reduced to get acceptable alignment, under image intensifier and A/K POP cast was applied, later discharged from hospital on 22.11.00, advising to come for review on 29.11.00, on which date, as outpatient X-ray was taken, and found to be same alignment, including swelling in the leg, though come down. The complainant was informed about the option of conservation or surgical treatment, on the complainant, but the complainant wanted to continue the conservative treatment, which was done accordingly.
8. After 7 weeks, since the day of injury, X-ray showed good union signs, and the POP was removed, from the wrist, physiotheraphy was started, to mobilize the left wrist joint. X-ray of leg revealed, very little evidence of callous formation, and despite the fact the same was informed to the complainant, he insisted in continuing with the conservative approach to the injury, for which fiber clause cast was recommended, but the complainant insisted conventional POP cast, and therefore AK P.O.P cast was applied for further four weeks. Advising the complainant to come on7.2.2001, on which date X-rays were taken, showing progress, of the healing. He was advised further, explaining that if the fracture does not show any sign of progress in another two weeks, to consider surgical option of ORIF and bone crafting. Thereafter, the complainant did not come up for any further followup, and if anything had happened thereafter, the opposite parties cannot be held responsible. The injury sustained by the complainant, being complex nature, involving wrist and leg are likely to lead, permanent disability, whatever method of treatment chosen, and it is the nature of injury sustained, as a result of road traffic accident. As such, the opposite parties have not committed any negligent act, either at the time of giving treatment, or in the postoperative period also. If the complainant had taken treatment, on his own elsewhere, taking risk, spending the amount, the opposite parties are not liable to answer the same. The delayed union, and the non-union are not uncommon in comminuted fractures, involving in the middle and 1/3rd of the tibia, by whatever method used to treat the fracture, therefore, it is incorrect to say that the permanent disability caused, due to the wrong diagnosis, and treatment by the opposite parties. The opposite parties, have adopted standard and widely accepted mode of treatment, in treating the complainant, taking into consideration of his age, health and nature of injury. The other averments are denied as false, praying for the dismissal of the complaint, since the opposite parties are not liable to reimburse the medical expenses, or not answerable for the alleged monetary loss.
9. The District Forum, based upon the documents, relied on by the parties viz.
Ex.A1 to A7, B1 to B24, coupled with Proof affidavits, felt that the opposite parties have committed gross deficiency in service, which had lead a deformative right leg of the complainant, for the said negligent act, which should be construed as deficiency in service also, they should be held responsible. In this view, though the complainant had claimed more than Rs.15 lakhs, under all the categories, the District Forum quantified a compensation of Rs.2,50,000/-, directing the opposite parties to pay jointly and severally, alongwith cost of RS.1000/-, as per order dt.1.9.2005, which is impugned in this appeal, on various grounds, as enumerated in the memorandum of appeal.
10. The complainant, though claimed more than RS.15 lakhs, has no grievance, when the District Forum granted only a sum of Rs.2,50,000/-, and in this way alone, it seems, he has not preferred any appeal. Therefore, in this case, we need not go into detail, regarding quantum and it will serve the purpose, if we decide the medical negligence alleged viz.
deficiency in service.
11. On 20.11.2000, the complainant met with a road accident, while riding his scooter, thrown away, resulting injuries, in the left wrist, as well in the right leg seriously, grievous in nature. He was admitted in the 1st opposite party hospital, on the same day, at about 3.30 p.m, where he was treated by the 2nd opposite party/ortho specialist. Admittedly, the complainant was treated by the opposite parties conservatively, not undertaking any surgery. After adopting the conservative procedure, taking x-ray etc., the doctors have applied A/K P.O.P cast and discharged after two days, on 22.11.00. As instructed by the 2nd opposite party, on 7.2.2001, the complainant attended the review also. Even as admitted by the opposite parties, the fracture in the wrist showed good union, resulting removal of P.O.P, advising physiotheraphy. But X-ray of right leg showed very little evidence of callous formation, and despite this fact, no alternative procedure was adopted, for which the explanation given by the opposite parties is, complainant had chosen to conservative treatment, instead of choosing ORIF surgery despite advise.
12. Admittedly, after 7.2.2001, the complainant has not gone to the hospital of the opposite parties, either for further treatment, or for review, whereas he had taken treatment in the Kumaran Hospital on 7.3.2001, where surgery was performed on 9.3.2001.
After the surgery, the complainant felt, the opposite parties have not properly diagnosed his problems, and they have also given wrong treatment. Thus accusing, leveling deficiency, he issued a legal notice, claiming compensation, which elicited only a reply, denying averments, resulting the consumer complaint, as said above.
13. There is no plea in the complaint, to our understanding, what is the deformity continued to the complainant, after taking treatment in M/s.Kumaran Hospital from 7.3.2001, except saying somewhere, there was deformity. In paragraph 10 of the complaint, we find some accusation against the opposite parties, stating that the treatment did not give the desired result, as the opposite parties negligently commenced wrong treatment, due to wrong diagnosis, made by the 2nd opposite party, and his colleagues. Thus two deficiencies are alleged viz.
wrong diagnosis, and wrong treatment.
Therefore, initially, it is for the complainant to make out a case, that the opposite parties have not acted as prudent doctors, which is expected from a qualified doctor, that they have not only diagnosed properly, but also have given wrong treatment, resulting further complication. In fact, though the fracture was not healed properly upto 7.3.2001, we would say admittedly, from the facts and circumstances of the case, for that no negligent act or deficiency in service can be attributed to the opposite parties.
In order to ascertain the alleged negligent act, now we have to remember the nature of injury, mode of treatments available, whether preference of one method, when many methods are available, failure of the same, should be construed as negligent act, or wrong diagnosis or wrong treatment, as the case may be.
14. The learned counsel for the appellants argued before us that the choice of the conservative treatment, over the other is not by itself mean any negligence on the part of the appellants, which was not properly taken into consideration by the District Forum, resulting erroneous conclusion, warranting our unavoidable disturbance. A further submission was made that the complainant himself had chosen, the conservative treatment, than the surgery, and bone grafting and accordingly, which is also an accepted mode of treatment, followed by the appellants, cannot be faulted even if there was no proper union, which is the known complication, considering the nature of injury. The learned counsel for the appellant also invited our attention, that the doctors can be made liable, if their treatment fell short of the standard required, for which practically there is no evidence in this case, but unfortunately the District Forum without analyzing the documents produced by the opposite parties, has come to an erroneous conclusion, as if the opposite parties have committed gross negligence, which should be erased resulting dismissal of the complaint also.
15. Per contra, the learned counsel for the respondent/ complainant would contend, that even as admitted there was no proper union of fracture, resulting the complainant going to another doctor for treatment, where deformity was noticed, which should be construed as negligent act, as well as deficiency in service, as correctly held by the District Forum. A further submission was made, that no surgery was performed, and no consent was obtained, from the complainant, for conservative treatment, and despite this fact surgery charges were collected, only applying AK/P.O.P, which had caused non-union, despite roughly 3 months lapsed, which should be construed as deficiency, since as a prudent doctor, the 2nd opposite party has not advised and give proper treatment, which is expected from a qualified surgeon.
16. As seen from the records, the complainant was given only conservative treatment i.e., not going for surgery. The problem is only in the right leg, and there appears to be no problem, as far as the fracture in the left wrist is concerned. Closed tibial shaft fracture, can usually be managed effectively, with cast or press immobilization, if acceptable alignment is maintained, which procedure appears to be adopted in this case. It is the dictum of the Apex Court also in Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra and others in Civil Appeal No.3318/1979, The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor be be guilty of negligence.
17. In Jacob Mathew Vs. State of Punjab & Another reported in III (2005) CPJ 9 (SC) , the Apex Court had considered not only the law of this land, but also the law pronounced by other countries, wherein it is observed a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In the same decision, it is further observed, placing reliance upon the decision of the House of Lords it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.
Which we have also followed in O.P.No.46/2005.
18. In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another, reported in AIR 1969 Supreme Court it is observed, The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency, thereby indicating a doctor is the best judge to give the treatment, or decide the nature of treatment, diagnosing the problem, with the consent of the party in which we cannot interfere casually, unless it is shown positively, emphathetically, undoubtedly, that the doctor failed in his duty or his action was below the standard, which was expected from a prudent doctor. Having the above principle in mind, now we have to see, what kind of treatment opted by the complainant, and what kind of treatment given by the opposite parties, whether it would amount to negligence or deficiency though there was a deformity.
19. As seen from the records, we would say the complainant has not discharged the initial burden of proving the medical negligence, in view of the further fact, the rule of evidence applicable in the case of res ipsa loquitor, is not applicable to the present case, from the given facts. Ordinarily, in this kind of cases, when a lay man accuses the doctor, forum expects expert opinion, but find fault with the treatment given by the qualified doctor, for which admittedly the complainant has not let in any evidence, except alleging in the complaint, as well as in the affidavit, that there was wrong diagnosis or wrong treatment, without informing what is the wrong diagnosis, what is the wrong treatment given, when the treatment given by the 2nd opposite party is acceptable, that too, chosen by the complainant, or his family members, as the case may be.
Therefore, the allegations in the complaint, that without performing the surgery, the opposite party has collected surgery charge or did not extend the surgery treatment, appears to be imaginary, as rightly put it in the written version, only theatre charge, and other related charges, were collected under the heading surgery, and infact admittedly also, there was no actual surgery. Therefore, on the basis some fees collected, under this heading, it cannot be taken as deficiency in service, or negligent act. In the complaint itself, the complainant was fair enough to accept that after the examination, the 2nd opposite party had suggested for surgery, with open reduction with plate and screws for tibia, and rolling POP cast treatment was suggested, for the left wrist after manipulation for dislocation and leave the fibula alone. Thus it is seen, both the treatments were informed, and has rightly urged by the learned counsel for the appellant, inviting our attention to the literature, both the treatment, whether it is conservative or surgery, as its advantage, or disadvantage also. Therefore the doctor, had chosen one mode of treatment, than the other mode, cannot be faulted, as negligent act, as held by the Apex Court.
20. The operative treatment is not above the problem, and it is also having advantage and disadvantage, as seen from the text, which need not be reiterated, here unnecessarily. Because of the advantages and disadvantages in the conservative and operative treatment, as per the affidavit of the 2nd opposite party, when he explained, the complainant had opted conservative treatment, which is evidenced by Ex.B5, where the wife of the complainant has signed, which is the case of the complainant also, that the family members have also agreed. Ex.B5 is not under challenge, except saying the complainant has not signed. When the wife was authorized as legal alternative, there is nothing wrong in obtaining the consent, when the patient was not in a position to sign. Thus, the consent to diagnostic, operative or treatment procedure, given by the wife can be taken as implied consent of the complainant, wherein conservative treatment is accepted i.e., AK / POP cast. Accordingly, as seen from the case records, treatment was given, and later discharged on 22.11.00.
21. Admittedly, as advised by the 2nd opposite party, the complainant came for review on 29.11.00, on which date, the doctor noticed based upon X-ray report, same alignment, even informing surgical treatment, for which the complainant was not willing. Thereafter, on 10.1.2001, as per the affidavit of the 2nd opposite party, since there was little evidence of callus formation, surgery was suggested, but the complainant insisted in continuing conservative approach, and accordingly a fresh AK/Pop cast was applied, which was reviewed on 7.2.2001, where there was some progress of healing, not to the satisfaction. It is the specific case of the 2nd opposite party, that he informed the complainant, that if the fracture does not show any sign of progress, in another two weeks, surgical option of ORIF and bone grafting should be considered. But, unfortunately, after 7.2.2001, admittedly also the complainant has not approached the opposite party, and probably dissatisfied, had taken treatment in Kumaran Hospital from 7.3.2001 to 21.3.2001, wherein also the doctor has stated, the fracture in the left distel radial was treated conservatively, and for the gross deformity in the right leg, treatment was given, adopting surgery, which was suggested by the 2nd opposite party also.
Thus it is seen, when the complainant had opted for conservative treatment, which is also one of the recognized mode of treatment, the 2nd opposite party in the hospital of the 1st opposite party, had given treatment, and as per the admitted complication, when there was no full proof progress, he suggested surgery also, thereby in our considered opinion, the 2nd opposite party had performed his duty properly, and the complainant on his own, probably not satisfied with the treatment given by the 2nd opposite party, left and had taken treatment in Kumaran Hospital, for which we cannot accuse the opposite parties, as if they have committed deficiencies.
22. As we have already pointed out there is no semblance of evidence regarding the wrong diagnosis, or wrong treatment, except words available in the complaint. Even in the discharge summary given by Kumaran Hospital Ltd., it is not the case of the said hospital, that the previous treatment was fallacious, based on wrong diagnosis, and infact no affidavit of the doctor also has been filed, accusing or faulting the treatment, given or adopted by the 2nd opposite party conservatively, which was accepted by the complainant himself, as per the consent. Therefore, even any deformity had caused, that is bound to be in this kind of fracture, for which a treating doctor, as per the wish of the insured, cannot be penalized, as ruled by the Apex court, which was not properly considered by the District Forum, that too when the 2nd opposite party had exercised due care, and attention and when it has not been established, any negligence in the treatment administered to the complainant. The District Forum, without properly examining the medical records available on the side of the opposite party, it is not at all faulted, with any particular incident, has simply recorded a finding, that the opposite parties have committed gross deficiency in service, purely based upon Ex.A3, i.e., Discharge Summary, given by Kumaran Hospital Pte Ltd., where we find no evidence regarding the wrong diagnosis, or wrong treatment, said to have been given by the opposite parties. For the above said reasons, we are unable to agree with the findings of the District Forum, rather constrained to interfere with its finding, resulting the appeal meritorious, to be accepted.
23. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.358/2003 dt.1.9.2005, and the complaint is dismissed. 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.
J. JAYARAM M. THANIKACHALAM JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Medical