State Consumer Disputes Redressal Commission
M. Vengadesan, S/O. Muthukrishnan vs M/S. A.G. Padmavathi Hospital Ltd, Rep. ... on 11 January, 2023
1
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the 11th day of January 2023
Consumer Complaint No.05/2017
M. Vengadesan, S/o.Muthukishnan,
Hindu, aged about 37 years
Balaji Nagar, II Cross Street,
Aranganoor, Seliamedu Post,
Bahour Commune, Puducherry. ... Complainant
Vs
1. M/s.A.G.Padmavathi Hospital Ltd.,
Rep. by its Managing Director
Dr.G.Elangovan, having office at
R.S.No.127/1A, Villianur Main Road,
Arumparthpuram, Puducherry-605 110.
2. Dr.Aravindan Kalamegam,M.B.B.S., DNB (Ortho)Spine,
Trauma & Joint Replacement,
Director & Head of AG Padmavati Hospital,
R.S.No.127/1A, Villianur Main Road,
Arumparthpuram, Puducherry-605 110.
.. Opposite Parties
BEFORE:
HON'BLE THIRU JUSTICE R. PONGIAPPAN
PRESIDENT
DR.S.SUNDARAVADIVELU,
MEMBER
TMT.S. OUMASANGUERY,
MEMBER
2
FOR THE COMPLAINANT
Tvl.V.Veeraragavan and V.Purushothaman, Advocates
FOR THE OPPOSITE PARTIES 1 AND 2:
Tvl.S.Vimal & K.Ashok Kumar, Advocates
(Complaint amended as per order dated 06.12.2019 in MP No.11/2019)
O R D E R
(By Thiru.S.Sundaravadivelu, Member) This complaint has been filed by the complainant against the OPs under section 12 (1)of the Consumer Protection Act (hereinafter called the Act in short) alleging negligence in performing surgery on the complainant seeking the following relief :
(1) To pay Rs 76,07,711 towards the cost of medical treatment and compensation for the mental suffering and agony undergone, (2) To pay Rs 25,000 as cost of the proceedings and (3) Any other relief as deemed fit.
Initially the complaint was filed only against the 1st Opposite party. Thereafter the 2nd opposite party was allowed to be impleaded vide order in M.P no 9/2019 dated 21.11.2019.
3Gist of the complaint is as follows:
2. The complainant was working as a Machine operator in Ms Vedha Bricks Karikalampakkam, Puducherry and earning Rs 11,000 pm. He was doing plumbing and electrical works on weekly holidays fetching additional Rs 5000.In May 2014, he felt pain in his right leg. After taking first aid treatment at Primary Health Centre, Karikalampakkam, he went to JIPMER, Puducherry where he was admitted as Inpatient on 02.06.2014 and underwent plastic surgery and blood clotting was removed and discharged on 16.09.2014. As he again felt pain in the right knee joint, he went to JIPMER hospital again on 15.11.2014, wherein in he was advised to undergo stiffness knee joint surgery.
He consulted the doctors at MIOT hospital, Chennai on 20.11.2014 who advised to undergo treatment for lingering infection first and after the infection is controlled, physiotherapy has to be undergone for mobilizing the knee and then quadriceps plasty surgery has to be done to reduce the knee pain.Rs.2,10,000 was quoted as the estimated charges.
3. He consulted the Opposite party hospital on 20.11.2014 and he was advised to undergo the same treatment which was suggested by MIOT Hospital, Chennai and promised cure at Rs 1,50,000/-. Resultantly, he was admitted in the Opposite Party Hospital on 22.11.2014 and Knee arthroscopy was done on 27.11.14 and discharged on 10.12.2014. Even though he paid Rs 1,50,000/- he was given bill for Rs.98,431 only. He underwent physiotherapy as advised by 4 the Opposite Party at home. But there was no improvement in his health condition. On 26.01.2015, during his consultation in the Opposite Party hospital, he was suggested to undergo 'Total Knee Replacement with Endo -Model Link Rotational Prosthesis' at a cost of Rs.2,15,000. The said surgery was done on 28.01.2015 at a cost of Rs.3,26,811/-. He visited the OP hospital for further diagnosis to reduce pain in his leg on various occasions between 21.02.2015 and 10.06.2016 hiring taxi for travel and spent Rs.30,000/- on traveling expenses. Rs 12,345/- was spent on medicines and lab tests etc. In the meanwhile from 06.04.2015, he underwent radiotherapy at Cancer trust hospital and research centre, Puducherry on the advise of the Opposite Party at a cost of Rs 7,681/-.
4. Since pain was not reduced, he went to the JIPMER Hospital where he was informed that 'infection at Proximal shaft of right femur and right knee joint was found. The complainant consulted the Op and he was advised to undergo 'Arthrodesis' stiffness treatment in his knee or 'Retrieval of implant and revision surgery ' ie removal of the prosthesis kept mistakenly in his knee and refitting after cleaning or fitness treatment or amputation of the right leg. Additional Rs.2,00,000/- was quoted for this treatment.
5. Then the Opposite Party gave an undated letter advising him to take treatment elsewhere without incurring much expenditure. The complainant consulted the doctors at Indira Gandhi Govt General Hospital and Post Graduate Research Institute, Puducherry and he was admitted as inpatient on 29.07.2016 5 and his right leg was amputated and discharged on 07.10.2016. Rs 9,643/- was incurred as expenditure on this treatment.
6. It is the grievance of the complainant that if the stiffness surgery had been performed, amputation need not have been done. Stiffness surgery was less costly, affordable and less risky. But the more expensive, more risky Total Knee replacement was done. The Opposite Party hospital never exercised due diligence. The Opposite Party made several misleading, medically unfounded promises with malafide intention to grab money from the complainant. Due to deficiency, lack of proper and correct medical services of the Opposite Party his right leg was amputated. He is unable to look after his family. He had taken loans to the tune of Rs. 10,00,000/- from various persons.
7. He estimates his loss of income as Rs 46,08,000/- and seeks a compensation of Rs 25,00,000 for the mental suffering and reimbursement of the expenditure incurred on treatment. Totally a sum of Rs 76,07,711/- is sought by the complainant vide this complaint.
8. In his reply version first opposite party (originally Opposite Party) stated that the complaint has been filed on false and frivolous grounds and denied the averments in the complaint. The Opposite Party admitted that the complainant was admitted in his hospital but was under the care of Dr.Aravindan Kalamegam and never treated by the Managing Director of the Opposite Party hospital. The treatment plans, methods of treatment, necessity of implants and 6 implants used are entirely at the said Surgeon's discretion, who is duly qualified and takes independent decisions. No allegation of deficiency in service for the infrastructure provided for the treatment has been made against the hospital. Hence no cause of action has arisen against the Opposite Party hospital.
The second Opposite Party who was impleaded vide order in MP No.09/2019, dated 21.11.2019 filed reply version. The defense of the second Opposite Party as set out in the reply version can be summarized as follows:
9. In November 2014, the complainant approached the Opposite Party hospital with the complaint of stiffness of the right knee. This was found to be due to Sequelae of Necrotising Fascitis - a disease causing extensive damage to the soft tissues of outer right thigh and leg after multiple surgeries in other hospitals. After the dead and diseased portion of the thigh and leg soft tissues were removed by surgery, soft tissue cover was replaced by skin grafting, taking skin from the left thigh. He was having severe pain in the entire right lower limb and stiffness of right knee joint with only painful jog range of movement(very minimal).Knee was fixed in 30" flexion due to soft tissue contracture. The complainant was given options of treatment including I) Arthrodesis(fusing the joint)(ii) Trial of mobilization under anesthesia (moving the joint under anesthesia and (iii)Revision for joint replacement. The complainant chose trial mobilization under anesthesia ie option (ii). After getting consent of the complainant he was initially treated under epidural 7 anesthesia from end of November 2014 to early December 2014 and active range of movement exercises were given in the ward. Arthroscopic adhesiolysis could not be done as the right joint was severely damaged and the scope was not easily passable and therefore only a blunt instrument adhesiolysis was performed. Since the patient was insisting to have a mobile knee joint, knee replacement surgery was suggested. After getting due consent from the complainant and his relatives and due investigations confirming complete remission of infection by joint fluid culture and blood investigations the patient was put on intravenous and oral antibiotics coverage.(Exhibit R2 page57-59) Total knee replacement was done by a team of qualified surgeons including a plastic surgeon on 28.01.2015. Endo model LIK total knee prosthesis was implanted and the patient was able to walk bearing weight and stiffness of the knee was improved up to 70-80 degrees of flexion. However there was persisting pain in the right knee and also in his left thigh donor site from where the skin was taken for skin grafting in the right leg while treating the Necrotising Fascitis in JIPMER. Persistent pain prompted the Opposite party to look for any source of infection by repeated investigations through joint fluid culture which returned negative results. Excess bone formation was noticed through x-rays. Hence suspecting myositis ossification, he was referred to Pondicherry Cancer Hospital for radiotherapy. The complainant was visiting JIPMER Hospital for plastic surgery follow up and they didn't recommend amputation as the soft issue had healed completely. Even the bones scan done 8 at JIPMER was non-specific for infection. Since the patient expressed inability to follow the treatment at the Opposite party hospital, he was referred to JIPMER or any other higher centre for further course of action. Before making the referral the complainant was assessed on his ability to walk and he was counseled on options available for further improvement. (i)removal of the present implant(excision arthroplasty), (ii) Redo revision of total knee replacement surgery Arthrodesis or, (iii) multiple drill holes in femur to let the pressure inside thigh bone to temporarily let down intra -osseous pressure.
10. Amputation was not suggested by the Opposite Party as a painless mobile knee was desired which was a possibility till the last day of follow up. The potentially avoidable present situation is due to his Necrotising fasciitis. According to the Opposite Party, pain, persistent infections alone are not indications for amputation. Revision of total knee replacement and other options were suggested bonafidely for the treatment of the complainant. Amputation treatment was adopted by another professional similarly placed. The Opposite Party would further say that he possesses the medical qualification and skills expected of an ordinary skilled practitioner in the field. Clinical observations were made and diagnostic tests done and treatment given as would be done by a doctor of ordinary skill in accordance with the opinion of responsible body of professionals in the field. He denied any wrong-doing medical negligence or causing willful harm to the patient/ complainant.
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11. During the enquiry, the complainant examined himself as CW1 and marked exhibits C1 to C21. The second opposite party examined himself as RW1 and marked exhibits R1and R2.
Both sides made oral arguments and also filed written Arguments :
12. Counsel for the complainant argued/ submitted the following in written arguments:
13. He incurred huge cost towards the treatment but the ailment was not cured and there was no positive result and he continued to suffer pain. He informed his medical history and treatment taken in other hospitals and produced the medical records at the time of consultation and discharged his primary duty. He followed the medical advices given by the Opposite Parties, taken the medicines prescribed and did physiotherapy. Infection in the blood of the complainant was not reduced before performing the 1st surgery which was one of the reasons for the failure of the surgery. The second surgery of total knee replacement was also done without reducing the infection leading to the failure of the surgery. The nature and line of treatment was not informed. RW1 specifically admitted in cross that the line of treatment was not explained.
14. No valid consent was obtained. Signature was obtained in pre printed consent forms with blank spaces without disclosing the details of the treatment.
15. Without treating the Necrotising Fasciitis sequelae, 1st surgery arthroscopy was performed. The complainant approached the Opposite party for 10 right pain knee and stiffness. One of the known complications of knee arthroscopy is knee stiffness. Hence the arthroscopy ought not to have been performed. The 2nd surgery total knee replacement should have been done directly after reducing the infection without performing first surgery. RW 1 admitted in cross that it is possible to perform total knee replacement without going for knee arthroscopy.
16. The Opposite party has categorically opined for amputation in his own handwriting whereas in reply version stated he has not recommended amputation. After conducting the first operation, without conducting necessary tests, X-ray CT scan etc to check post operative complications and rate of infection, second surgery was done.RW1 admitted in cross that no test or scan was done after completing all procedures.
17. Only certain medical records relating to the complainant were submitted that too belatedly and even now entire records have not been submitted. Hence it is apprehended that the records were created by the Opposite parties.
18. It is not necessary to examine medical experts as the Opposite party has extensively admitted that no tests were done before performing a second surgery and no records were produced to prove that antibiotics were given and there was no infection before performing both the surgeries. The second opposite party has only a Diploma in Ortho and he is not a surgeon and hence he is not qualified to perform surgery and he doesn't have the requisite knowledge or 11 skill. Names of anesthetist or plastic surgeon are not mentioned in the case records.
19. Counsel for the complainant submitted the following judgments in support of his case.
1. Mrs.Swapnil Mishra Vs. Pushpanjali Healthcare
2. Vinod Khanna Vs.R.G.Stone Urology and Laparoscopy Hospital & Others.
3. Ms.Neha Kumari & Another Vs. Apollo Hospital & Others.
4. Panrjijatha Multispeciality Hospital Vs. B.Radhika.
5. BRS Heart Institute and Research Centrel Vs. Kuljit Kaur.
6. Nazreth Hospital & 2others Vs. Sona Singh
7. V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Another.
8. Meenakshi Mission Hospital and Research Centre Vs. Samuraj and Another.
The counsel for the Opposite parties argued / submitted in written arguments the following :
20. The opposite parties are functioning on principal to principal basis and are not vicariously liable either way. The second opposite party was impleaded after 4 years from the date of original cause of action alleged in the complaint.
Hence the complaint is barred by limitation.
21. The complainant and his wife gave written consent for the treatment of 'trial mobilization under anesthesia 'out of the three options given to him. 12 Appropriate antibiotic and other medicines were given and active range of movement exercises were given in the ward under anesthesia. Then arthroscopy was attempted but since the right knee joint was severely damaged, blunt instrument adhesiolysis was done and discharged with necessary medications. The complainant has admitted this during his cross examination. The treatment given as above are accepted practice in the field of medicine. Since the patient insisted to have mobile knee joint, knee replacement surgery was suggested. The patient and his relatives gave their written consent. Necessary investigation confirming complete remission of infection by joint fluid culture and blood investigation, X-ray and CT scan were done externally by the patient before admitting as an inpatient. The patient was put on intravenous and oral antibiotics coverage. Total knee replacement surgery was done by qualified team of surgeons and he was discharged with due advice. He was able to walk bearing weight and flexion increased upto 70 - 80 degrees. Because of complaint of persistent pain, he was advised to have repeated investigation through joint fluid culture etc which returned negative for infection. All the medical investigation reports are available with the complainant as he was treated as outpatient then and they have been suppressed by the complainant. Treatment at JIPMER affirms the treatment method adopted by the Opposite party to be proper. Amputation was not a plan of action suggested by the Opposite party. Painless mobile knee was sought by the op which was a possibility till the last day of follow up. No false promises were made. The 13 complete medical records of treatment taken in JIPMER and General Hospital where amputation was done have not been produced. The out patient records have not been produced whereas bills have been produced. Advice given by MIOT cannot be a standard to be followed by the second opposite party. The second opposite party possess the required medical qualification and skills expected of an ordinary skilled practitioner. The complaint has been filed on assumption and surmises and are not substantiated by any material on record or experts opinion. The treatment given is the correct line of treatment known among the medical fraternity in the relevant field. The complainant has not come with clean hands and is trying to mislead the Commission. There are no differences between the written version, medical records, documentary evidence and deposition .He was treated for stiffness of knee keeping in mind his past history of Necrotising Fascitis sequelae.Necessary post operative care was given.
22. The counsel for the op along with the written arguments has enclosed the following medical literature and citations.
Medical literature:
1. An Open source article - Arthroscopic Lysis of Adhesions and Anterior Inverval Release with Manipulation under Anesthesia for Severe Post Traumatic Knee stiffness. A Simple and Reproducible step-by-step guide by Mohit Kukreja M.D., Jeansol Kang, M.D. Emily J.Curry B.A. and Xining Li M.D. 14
2. An Open source article -Prognostic Factors of Arthroscopic Adhesiolysis for Arthrogibrosis of the knee.
3. Endo Model Rotating Knee Prosthesis : a functional analysis. Citations
1. Judgment of Hon'ble National Commission in Ravinder Kumar Varshney Vs. Dr.I.,A.Khan- Consumer Case No.458 of 2022, dated 01.09.2015.
2. Order of Stay by the Hon'ble Supreme Court in RG Stones Urology Vs. Vinod Khanna & Others. In Civil Appeal No.2993/2020 dated 18.11.2020.
3. Judgment of Hon'ble National Commission in First appeal Nos.53 of 2010, 115 of 201 dated 08.01.2021.
4. Judgment of Hon'ble Surpeme Court in Dr.Harish Kumar Khurana Vs. Joginder Singh, dated 07.09.2021.
23. Arguments heard and documents perused.
After considering the pleadings set out on either side, the following issues were framed for settling the disputes.
1 Whether the complainant is a consumer under the Consumer Protection Act 1986?
2. Whether the complaint against the Second opposite party is barred by limitation?
3. Whether there was any deficiency or negligence in the treatment 15 given to the complainant ?
4. If there was negligence, what is the relief to be given to the complainant? Issue No.1:
Whether the complainant is a consumer under the CP Act ,1986?
24. As per Section 2 d (ii) of Consumer Protection Act,1986 'Consumer 'means any person who hires or avails of any services for a consideration which has been paid or promised. Section 2(1)(o)defines service as service of any description made available to potential users including the provision of facilities in connection with banking ,financing ,transport etc. Rendering of service free of charge or under a contract of personal service is excluded from the ambit of service as defined. Medical services was not specifically included in the definition. In 1995,in the case of V P Shantha Vs Indian Medical Association Hon'ble Supreme Court brought the medical profession within the ambit of service as defined in Section 2 (1) (o) of the Act. The complainant in this case has availed treatment from the OPs on payment of consideration. Hence this Commission has no hesitation in holding that the complainant is a consumer under the Act.
Issue No.2:
Whether the complaint against the second opposite party is barred by limitation?
25. It is seen from records that the complainant submitted a petition which was numbered as I A 09 of 2018 to implead Dr.Aravindan Kalamegam as 16 second opposite party on 4 4.2019. It was not objected and the counsel for the op hospital filed vakalat for the proposed party. Hence the petition was allowed and Dr.Aravindan Kalamegam was impleaded as an opposite party (second opposite party). After endorsing no objection at the petition stage, the second opposite party cannot turn around now and say that the complaint against second opposite party is time barred. Therefore the issue is decided against the second opposite party.
Issue No.3:
Whether there was deficiency and negligence in the treatment given to the complainant?
26. The basic principle relating to medical negligence is known as the Bolam rule. In the judgment of McNair,J in Bolam Versus Frien Hospital management committee (1957 )1 WLR 582 this was laid down as follows "where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is not the test of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
27. In paragraphs 24 and 32 of the landmark Jacob Mathew's case Hon'ble Supreme Court observed thus:17
"The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before the courts in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner eXercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge."
28. Let us analyse the issues raised by the complainant in the backdrop of the Bolam test and principles for medical negligence enunciated by the Hon'ble Supreme Court.
29. It has been alleged that the second opposite party has only a Diploma in Ortho and hence he is not qualified nor he has the requisite skill or expertise.
30. It is seen from Exhibit C6 that the op2 possesses D.Ortho and DNB (Ortho) qualifications. DNB Ortho is considered as equivalent to postgraduate qualifications in the medical field and qualified to perform orthopedic surgery. Hence the charge that the op 2 is not qualified to perform orthopedic surgeries nor he has the requisite skill is not correct.
Second allegation is correct treatment was not given.
31. The complainant approached the ops with the complaint of pain and stiffness in the right knee on 20.11.2014.He had already taken first aid treatment in Primary Health Centre , Karikalampakkam and treatment in 18 JIPMER for Treatment for pain in Right lower limb and trauma in June 2014 and Sep 2014. As per the exhibit C5 andC6 he was diagnosed to be suffering from Post Necrotising Fasciitis Sequelae with secondary osteoarthritis and knee stiffness by the second opposite party. He was done knee arthroscopy and blunt adhesiolysis under general anesthesia on 27.11.2014.
32. Knee arthroscopy is a minimally invasive surgical procedure that allows doctors to view the knee joint without making a large incision (cut ) through the skin and other soft tissues. During the procedure a small camera called an arthroscope is inserted into the knee joint and the pictures taken by the camera are displayed in a video monitor. Miniature surgical instruments are guided with the help of these images seen in the monitor. Since small incisions are made, less pain and less stiffness are caused to the patient leading to faster recovery. Knee arthroscopy is done when the painful condition does not respond to non surgical treatment including rest, physiotherapy, medications etc. It may relieve painful symptoms of many problems of the knee. It is used for removal of inflamed tissue, loose fragments of bone cartilage, treatment of knee sepsis (infection) (source: orthoinfo .aaos.org.)
33. As per the medical literature produced by the counsel for Op which is an open source article titled "Arthroscopic lysis of admissions and anterior interval release with manipulation under anesthesia for severe post- traumatic knee stiffness: A simple and reproducible step by step guide"post -"traumatic 19 knee stiffness is common after injuries around the knee and surgery.Management is guided by the type of initial injury, range of motion loss,time since injury and cartilage status. Cases refractory to conservative management may be treated with manipulation under anesthesia,arthroscopic lysis of adhesions or open quadriceps plasty. Although technically demanding, arthroscopy benefits from being minimally invasive, allows for direct visualization of structures and allows all round arthroscopic release of adhesions to improve mobility and decrease the risk of fracture prior to MUA. Postoperative formal physical therapy protocol and patient compliance are imperative to achieve good outcomes.
Another paper titled "Prognostic factors of arthroscopic adhesiolysis for arthrofibrosis of the knee" has also been submitted. It says "Open surgery quadricepsplasty was undertaken frequently for arthrofibrosis in the past. However it is a high risk procedure that requires long rehabilitation and post operative immobilization. Recently the advent of arthroscopic ligament reconstruction techniques and accelerated rehabilitation programs has contributed to the reduced incidence of postoperative knee stiffness. Moreover gentle manipulation and arthroscopic adhesiolysis have become accepted as viable treatment modalities for arthrofibrosis of the knee. It facilitates early rehabilitation and decreases the risk of surgery and post operative complications. Thus arthroscopic adhesiolysis can be an effective treatment method for patients with a ROM deficit caused by intra articular 20 adhesions after knee surgery."
Thus it may be seen from the medical literature quoted above that knee arthroscopy procedure is being used in painful knee conditions.On the other hand no evidence has been produced by the complainant to indicate anything to the contrary. The counsel for opposite parties has submitted another article titled "ENDO - Modell rotating knee prosthesis : a functional analysis"
which discusses the reasons for the need for revision and replacement of artificial knee joints implanted in the patients. These articles / technical notes reveal that the treatment line adopted by the second opposite party is correct and no evidence or expert opinion has been produced by the complainant to prove otherwise.
34. Advice given by Dr.Mohandass of MIOT hospital in Exhibit C 4 mentions the following line of treatment:
(1). Admission (2). Swab to send for culture and sensitivity (3).Lingering infection has to(be)overcome. (4) After the infection becomes quiescent, to attend physiotherapy to improve quadriceps and mobilize the knee after which the residual stiffness can be overcome later by surgery quadricepsplasty. Per Contra the opposite party would argue that the prescription and advice given by the MIOT Hospital cannot be a standard to be followed by the medical fraternity similarly placed, including the second opposite. He also cited the order of Hon'ble National Consumer Disputes Redressal Commission in 21 Shyam Sunder Dash vs Tata Memorial Hospital and others in FA no 53 of 2010.In the said order the Hon'ble National Commission has quoted the judgment of Hon'ble Supreme Court in Achutrao Haribhau Khodwa vs State of Maharashtra 1996,vol 2 643 that "The skill of medical practitioner 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 a 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 to be guilty of negligence." In the Bolam's case cited supra it was held that " A doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view".
35. In the case on hand it has been established that the op has done the surgeries accepted and widely practiced by the medical profession for the ailments presented by the complainant.
36. In the light of the above, we are of the view that the contention of the 22 complainant that the op ought to have followed only the line of treatment given by MIOT hospital is not correct and the op is not wrong to have chosen the line of treatment followed by him. .
37. Next allegation is without reducing the infection in the blood ,both surgeries were done which led to their failure.
38. It is the allegation of the complainant that without reducing the infection in the blood, the first surgery was done and without due post operative care and diagnostic tests and blood tests the second surgery Total Knee Replacement was done. The second opposite party counters this by saying the complainant was given antibiotics as shown in Exhibit R1 page 47 -52 before the first surgery. Perusal of the exhibit R1 page 47-52 shows that Gentamycin, an antibiotic, was given from 27.11.14 to 3.12.14. Exhibit R2 page 59 also shows that piptaz an antibiotic was given before and after surgery. The discharge summary in page 5 of Exhibit R2 shows that hematology and biochemical infections were within normal limits and the surgery Total Knee Replacement was done on 28.01.15 under spinal epidural anaesthesia.Post operative period was uneventful. He was treated with antibiotics and other supportive medications. Range of motion improved to 70 degrees. Before operation it was upto 5 degrees only. The OP further says the complainant was assessed by joint fluid culture after discharge and the report returned negative for infection. Total knee replacement surgery was performed with due 23 medication and physiotherapy advice. But the said report is available only with the complainant being an outpatient and he has not produced it before the commission. This reply of the op is not acceptable as they should have kept the report in the case sheet of the patient even if the test was done outside. The op has also mentioned in his defence that blood investigation at JIPMER did not reveal any active infection status and the soft tissue had definitely healed. Bone scan taken at JIPMER also was nonspecific for infection. However the related reports from JIPMER have not been filed even though from Exhibit C3 which is case sheet /consultation notes of JIPMER it could be seen that blood tests were prescribed to be done and the patient was prescribed antibiotic trial for one week. The opposite party has produced some evidence for giving antibiotics and also says some records have not been produced by the complainant. On the other hand, the complainant has not produced any material evidence in support his claim. As already discussed the line of treatment is to be decided by the qualified doctor and as long as it is an accepted practice to the medical profession, it cannot be faulted. Hence, this allegation is hold as not valid.
39. The other contention of the complainant is that the first procedure arthroscopy surgery was not necessary and the total knee replacement could have been done directly. However as rightly pointed out by the Opposite parties in written arguments this is not supported by any expert opinion and hence rejected.
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40. The complainant has also alleged that the line of treatment was not explained and the op has admitted this in his cross examination. The Opposite parties would counter this in his written arguments that complainant had admitted in his cross that he was given three options for the treatment. Perusal of cross examination of the complainant reveals that he was given three options as stated by the opposite parties. Hence this allegation of complainant is not correct. The citation given by the complainant Mrs Swapnil Mishra vs Pushpanjali health care of Delhi State Commission is found not relevant in this regard.
41. Further the complainant said 'informed consent' was not obtained for the treatment and consent was obtained in pre-printed forms. He had cited the case of Vinod Khanna vs R.G.Stone urology and Laparoscopy hospital .In this case Hon'ble National Consumer Disputes Redressal Commission had determined that the uniform use of preprinted and fixed informed consent cum undertaking form is an unfair trade practice and imposed a cost of Rs.10,00,000 on the hospital. The op counters this by saying written consent was obtained from the complainant and his wife for the first surgery as in page 7 of Exhibit R 1 and for the total knee replacement surgery in page 95 and 97 of Exhibit R2 . A perusal of the consent letter given by the complainant and his wife show that possible complications, side effects including cardiac arrest, nerve injury, secondary surgical procedure and implant removal were explained to them and consent obtained. The Opposite party also informs that the order of the 25 Hon'ble National Commission has been stayed by the Hon'ble Supreme Court.
42. Discrepancies alleged between the written version, medical records and deposition have been denied by the op in his written arguments. We have not gone into those aspects as we find that the discrepancies if any are not relevant to decide the alleged deficiency.
43. The complainant has alleged that the opposite party has made misleading and false pleadings regarding his status in the hospital and suggestion of amputation as a course of action.
44. Per contra the op pleaded that he is a consultant in the op hospital and he was suggesting amputation as the last course of action and he wanted the complainant to be mobile. The judgment cited by the complainant Neha Kumari Vs Apollo Hospital and ors deals with limitation issue and found irrelevant and the reason for citing it is not known.
45. Another grievance of the complainant is that tests and scans were not done after the first surgery and before doing the second surgery .He has cited three case laws in this regard.
46. All the three citations talk about due post operative care and management. The opposite parties state that X ray, CT scan ,blood test were done externally by the patient before admitting as inpatient for the second surgery ie Total Knee Replacement. It is also seen from the exhibit R2 page 6 discharge summary and page 16 that X ray and CT scan was taken from outside and usual blood 26 investigations done. As already observed, it is the duty of the hospital to have the reports for its record even if the tests were done outside. The Opposite parties are advised to maintain the medical records properly.
47. As per the complainant the names of the anesthetists during the two surgeries are not mentioned whereas it is observed from Exhibit R2 page 17 that their names are indeed mentioned.
48. The following facts were also considered by us.
The complainant took treatment from various hospitals starting from Primary Health Centre, then JIPMER hospital, the op hospital ,and Government General hospital spread over a period of nearly two years from the date of fall in May 2014 to October 2016 date of discharge after amputation. There is a time gap of more than one and half years from the date of Total knee replacement surgery and amputation in Govt.General Hospital. No negligence has been alleged on the surgeries per se. Negligence has been alleged only on the pre and post operative management and medications which have been refuted by the op2 with medical literature and records.
49. Medical records pertaining to the treatment in JIPMER( except few documents) and Govt.General Hospital have not been produced nor the doctors have been impleaded or brought in as witnesses. No experts have been examined as witness to substantiate the allegation of negligence/ deficiency. Or at least medical literature to support their claim could have been produced. 27 This has not been done. To establish medical negligence, necessary evidence is essential. In accordance with the observations of Honble Supreme Court in Dr.Harish Kumar Khurana vs Joginder Singh and others in Civil Appeal no 8118 of 2009 wherein it was observed that "14.Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered."
50. Hon'ble National Consumer Disputes Redressal Commission in Ravinder Kumar Varshney vs Dr.I.A.Khan in CC 458 of 2002 observed as follows: "11.The Honble Apex Court ,as well as this Commission in catena of decisions has held that ,the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated on a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals."
51. In view of the above findings and discussions and applying the principles on medical negligence as laid down by the Hon'ble Apex Court and Hon'ble National Commission, we are of the view that no negligence or deficiency has been established in the treatment given to the complainant by 28 the opposite parties. This issue is answered accordingly. Issue No.4
52. In view of the decision in issue No.3, the complainant is not entitled to any relief.
In the result, the complaint is dismissed. There will be no order as to costs.
Dated this the 11th day of January 2023.
Sd/-
(Justice R. PONGIAPPAN) PRESIDENT Sd/-
(S.SUNDARAVADIVELU) MEMBER Sd/-
(S. OUMASANGUERY) MEMBER LIST OF COMPLAINANT'S WITNESSES:
CW.1 03.12.2021 M. Vengadesan
LIST OF OPPOSITE PARTIES' WITNESSES:
RW.1 10.11.2022 Dr.Aravindan Kalamegam
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 -- Salary of complainant deposited in Indian Overseas
Bank, Reddiarpalayam, Puducherry for the period
from 08.05.2011 to 30.06.2014.
29
Ex.C2 02.06.2014 Photocopy of JIPMER Admission case summary
and discharge record of the complainant.
Ex.C3 30.10.2014 Photocopy of JIPMER Hospital Consultation
Summary.
Ex.C4 20.11.2014 Photocopy of medical advice letter given by the
MIOT Hospital, Chennai.
Ex.C5 22.11.2014 Photocopy of discharge summary issued by the
opposite parties.
Ex.C6 24.02.2015 Bill for Arthroscopy for a sum of Rs.98,431/-
issued by the opposite parties.
Ex.C7 25.12.2014 Bills indicating consultation & medicines
purchased at the first opposite party hospital.
Ex.C8 26.01.2015 Photocopy of Discharge summary after Endo-
Model Rotational Prosthesis Surgery performed by
the opposite parties.
Ex.C9 -- Bills for Rs.6000/- dated d 06.04.2015 &
08.04.2015 issued by the Puducherry Cancer Trust
Hospital & Research Centre, Puducherry.
Ex.C10 08.04.2015 Photocopy of report and medical prescription issued by the Puducherry Cancer Trust Hospital & Research Centre.
Ex.C11 22.05.2015 Medicine bill for Rs.1681/- for Radio Therapy issued by Puducherry Cancer Trust Hospital & Research Centre, Puducherry.
Ex.C12 -- Photocopy of Medicine prescription slips for the period from 21.02.2015 to 10.06.2016 issued by the opposite parties.
Ex.C13 -- Tax bills dated 21.02.2015, 04.04.2015, 03.06.2015 for a sum of Rs.7500/-.
30Ex.C14 -- Bills for medicines, consultations, X-rays, lab charges for the period from 25.12.2014 to 30.06.2015 issued by the opposite parties.
Ex.C15 24.02.2015 Bills for RS.3,26,811/- issued by the opposite parties.
Ex.C16 19.10.2015 Report given by the JIPMER Hospital.
Ex.C17 10.06.2016 Advice given by the opposite parties to undergo
cleaning of Endo Model Rotational Prosthesis
instrument or knee stiffness surgery.
Ex.C18 -- Advice given by the opposite parties to take further
treatment for further diagnosis.
Ex.C19 17.10.2016 Photocopy of discharge slip issued by Government
General Hospital, Puducherry.
Ex.C20 -- Bills for Rs.9,443/- for the period from September
2016 to December 2016.
Ex.C21 21.10.2016 Letter given to Legal Services Authority,
Puducherry by the first opposite party stating the
second opposite party was not employed in its
hospital.
LIST OF OPPOSITE PARTIES' EXHIBITS :
Ex.R1 22.11.2014 Photocopy of case sheet of the complainant
maintained in the opposite party hospital.
Ex.R2 26.01.2015 Photocopy of case sheet of the complainant
maintained in the opposite party hospital.