State Consumer Disputes Redressal Commission
The Proprietor, Excell Hi-Tech ... vs Mr.S.Ramachandran,Valliyoor,Tirunelveli ... on 13 April, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.Nos.06/2013 & 07/2013
(Against the order made in C.C.No.105/2004, dated 14.02.2007 on the file of the
District Forum, Tirunelveli.)
THURSDAY, THE 13rd DAY OF APRIL 2022.
F.A.No.06/2013
(F.A.No.164/2007 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.C.No.105/2004, dated 14.02.2007 on the file of the
District Forum, Tirunelveli.)
The Proprietor,
Excell Hitech Hospital,
N.H.No.7, Valliyoor, Tirunelveli. Appellant/2nd Opposite Party
-Vs-
1. S.Ramachandran,
S/o Sudalaimuthu,
241/1A, Housing Board,Valliyoor,
Tirunelveli District. 1st Respondent/Complainant
2. Dr.B.Sankara Venkatesan,
Orthopaedic Surgeon,
Balaji Ortho Hospital,
Near Amaravathi Hosptal, Valliyoor,
Tirunelveli District. 2nd Respondent/1st Opposite Party
Counsel for the Appellant/Opposite Party-2 : Mr.B.Sivathilagar, Advocate.
Counsel for the Respondent-1/Complainant : M/s A.Hajamohideen, Advocate.
Counsel for the Respondent-2/Opp.Party-1 : M/s Anand Abdul Vinodh Associates.
F.A.No.07/2013
(F.A.No.223/2007 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.C.No105/2004, dated 14.02.2007 on the file of the
District Forum, Tirunelveli.)
Dr.B.Sankara Venkatesan,
Orthopaedic Surgeon,
Balaji Ortho Hospital,
Near Amaravathi Hosptal, Valliyoor,
Tirunelveli District. Appellant/1st Opposite Party
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-Vs-
1. S.Ramachandran,
S/o Sudalaimuthu,
241/1A, Housing Board,
Valliyoor,
Tirunelveli District. 1st Respondent/Complainant
2. The Proprietor,
Excell Hitech Hospital,
N.H.No.7, Valliyoor,
Tirunelveli. 2nd Respondent/2nd Opposite Party
Counsel for the Appellant/Opposite Party-1 : Mr.R.Anand, Advocate.
Counsel for the Respondent-1/Complainant : M/s A.Hajamohideen, Advocate.
Counsel for the Respondent-2/Opp.Party-2 : Mr.B.Sivathilagar, Advocate.
Both the appeals coming before us for final hearing on 07.10.2021 and upon
perusing the material records, this Commission made the following:-
COMMON ORDER
THIRU.N. RAJASEKAR, PRESIDNG JUDICIAL MEMBER.
1. The appeal in F.A.No.06/2013 has been preferred under section 15 r/w section 17 (1) (a) (ii) of the Consumer Protection Act, 1986, by the appellant/2 nd opposite party against the order made in C.C.No.105/2004, dated 14.02.2007 on the file of the District Forum, Tirunelveli, directing the opposite parties are to pay a sum of Rs.2,00,000/- towards compensation for mental agony and sufferings and to pay a sum of Rs.34,178/- towards the payment of financial loss and to pay a sum of Rs.5000/- as cost to the complainant.
2. Aggrieved against that order of the learned District Forum, Tirunelveli made in C.C.No.105/2004, dated 14.02.2007, the 1st opposite party has preferred their appeal separately in F.A.No.07/2013, before this Commission praying for setting aside the order passed against them.
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3. As both these appeals are arising out of one and the same order of the learned District Forum, Tirunelveli made in C.C.No.105/2004, dated 14.02.2007 both these appeals are jointly heard and disposed of by this common order.
4. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum, Tirunelveli.
5. The case of the complaint is as follows;- The complainant was working as a Head Constable at Valliyoor Police Station and doing work at District Police Office Tirunelveli. On 13-02-2003 at about 8.30 A.M he was coming to the Valliyoor Bus stand by walk. At that time he was hit by a tourist vehicle and he fell down. This resulted with a fracture in his left knee. So he underwent treatment for communicated fracture at the Hospital of the 2nd opposite party. He was admitted in the said hospital on 13-02-2003 as I.P.No.53/2003. On the demand of the 1st opposite party a sum of Rs.10,000/- was deposited in the Hospital, for which no receipt was given by the 2nd opposite party. (However this Rs.10,000/- was adjusted) and receipt for Rs.30,000/- was given on 26-02-2003 which includes this Rs.10,000/-.
The 1st opposite party diagnosed it as fracture in the left leg ankle joint. On the advice of the 1st opposite party Anesthesia was given by a Doctor from Nagercoil on 13-02-2003 itself for which a sum of Rs.595.90/- was paid by the complainant. The 1st opposite party did the operation on 13-02-2003 and did the internal fixation of plate and screws on the same day itself. The complainant had been in the Hospital as in patient from 13-02-2003 to 26-02-2003. On 25-2-2003 suture was removed by the 1st opposite party and the complainant was discharged on 26-02.2003. On 26-02-2003 another sum of Rs.20,000/- was demanded and was 4 paid to the 2nd opposite party and the 2nd opposite party authorities gave a receipt for Rs.30,000/- which includes the amount of Rs.10,000/- paid on 13-02-2003. Apart from the above payment of Rs.30,000/- the complainant had to spend a sum of Rs.10,429/- towards medicines. The medicines were purchased from the Pharmacy of the 2nd opposite party which is in the Hospital premises itself on the advice of the 1st opposite party. After the dischargement, the complainant periodically attended the hospital and each and every time on the advice of the 1 st opposite party medicines were bought from the same pharmacy in the hospital which amounted to Rs.2841.10/-. Apart from the above expenses physiotherapy was done for the period from 15-04-2003 to 28-04-2003 at a cost of Rs.360/ - at the same hospital.
In spite of the operation, taking medicine and physiotherapy, the complainant could not get cured. There were swelling and bleeding wounds with pain in the ankle. He could not attend his routine work in the normal condition and as a Police Constable, he was forced to enter on leave. Initially he entered on leave with effect from 07-04-2003 to 06-05-2003, again from 14-05-2003 to 03-07-2003, and again from 19-08-2003 to 17-09-2003. So, the complainant had to undergo another operation on the advice of the 1st opposite party in the same Hospital. He was admitted on 02-10-2003. Again the 1st opposite party did the operation. This time the plate and screw of internal fixation were said to be removed. In this connection a sum of Rs.6750/- was paid to the Hospital. The complainant had been in the Hospital till 09-10-2003. Medicines to an amount of Rs.3029.20/- were bought during the above period from Pharmacy of the Hospital. In spite of this operation also and medicine the complainant was undergoing severe pain in the ankle and 5 swelling all round. The complainant had to enter on leave again from 03-10-2003 to 30-11-2003. So the complainant again consulted the 1st opposite party on 29-10-2003. In this occasion the 1st opposite party referred the case to one Dr.Mohandoss M.D.at Nagercoil. So suspecting the treatment given by the 1st opposite party the complainant could not go to Nagercoil.
Instead the complainant consulted another local Ortho Doctor by name Dr.T.Thiraviam at Valliyoor itself. An x-ray was taken by him on 07-11-2003. That x-ray discloses that a screw is sitting within the wounds in the ankle. This means that the screws stated to have been removed by the 1st opposite party on 02-10-2003 was not completely removed and one screw was left over negligently. The above doctor also gave a certificate dated 07-11-2003 and advised for an ankle arthritis surgery again. So another doctor S.Poovalingam M.S(Ortho) D.Ortho of Shifa Hospital, Tirunelveli was consulted on 11-11-2003. He diagnosed that one screw has been left out while other screws were removed. This had happened due to the negligence of the 1st opposite party.
So, the complainant had to undergo another operation on 29-11-2003. A sum of Rs.3839.77 was spent towards this operation. In this operation the screw left out was removed on 29-11-2003. Now the complainant becomes alright. His prolonged treatment for a period of nearly 10 months made him severe physical as well as mental and financial strains. He was forced to enter V.R.S with effect from 01-06.2004.
As narrated above the complainant had to spend a heavy amount.
1. As per Receipt dated 26-02-2003 : Rs.30,000.00
2. As per Invoice No.A.D.2922 dated 13-02-2003 Of J.M.J.Surgicals. : Rs. 595.90 6
3. Medicines for the period from 13-02-2003 to 26-2-2003. : Rs. 8,802.90
4. Medicines for the period from and beyond that period . : Rs. 2,020.60
5. Cost of Physiotherapy. : Rs. 360.00
6. 2nd Operation expenses : Rs. 6,750.00
7. Medicines thereon. : Rs. 4,595.20
8. 3rd Operation at Tirunelveli and Medicines thereon. :
Rs. 3,839.77 ___________ Total : Rs.56,964.37 ____________ The negligence of the 1st opposite party paved way for the above expenses which went waste and the complainant had to undergo frequent medical check-up and treatment again and again and this amount to deficiency of service apart from medical negligence. The complainant must be compensated with the above amount apart from a heavy compensation for mental and physical agony. The complainant estimates an unquantifiable compensation of Rs.5,00,000/-. Under these circumstances the complainant has claimed as prayed for in the complaint.
6. The 1st opposite party filed written version as follows: The complaint is not maintainable either in law or on facts. The complainant through the General Secretary, Tamil Nadu Peoples Consumer Federation is not maintainable in the absence of any authorization and the rules and regulations produced along with the complaint.
The complainant who got himself admitted in the Excell Hitech Hospital as an inpatient was referred to this opposite party as he is an Orthopaedic surgeon. This opposite party had no direct dealing with the complainant so far as the payment of 7 charges and medical expenses. Everything was paid into the hospital directly. This opposite party was attached to the hospital The 1st opposite party was a consultant Orthopaedic surgeon at Excell Hitech Hospital from June 2002 to December 2003. Subsequently he has set up his own independent clinic. While he was in Excell Hitech Hospital, the case sheet for the patients attended by this opposite party were maintained by the hospital and the opposite party is not in possession of any of the sheets including that of the complainant.
On 13-03-2003 the opposite party was called by Excell Hitech Hospital administrators to see the complainant who had already been admitted with the H/O road traffic accident. The complainant had sustained a high velocity injury to his left leg. On clinical examinations he had huge tender tense swelling of leg and ankle with deformity of leg and ankle. The xray revealed communicated fracture of lower end of tibia involving of ankle joint. First aid treatment such as IV fluids, Injection tetanus toxid, Injection diclofenac was given and fracture immobilized temporarily with elastocrepe bandage compression. The complainant and his relatives were explained about the injury sustained by the complainant and the 3 various modalities of treatment including after effects of such treatment were also explained to them.
1. To put him a plaster of Paris immobilization for 6 months.
2. Treatment by external fixation of surgery.
3. Open reduction and internal fixation with plate and screws. The complainant with a view to avoid prolonged immobilization and to have early ankle movement prefers open reduction and internal fixation. The complainant 8 was explained in detail about the after effects of the proposed treatment and the complainant wholeheartedly consented for surgery (ORIF). The initial routine screening tests were done which were within normal limits. This opposite party sought the assistance of Dr.Senthilkumaran, an anesthetist and he examined the complainant and found him fit for anesthesia.
On 13-02-2003 ORIF with plate and screw surgery to set right the fracture was performed. The opposite party performed the surgery under epidural anesthesia given by Dr.Senthilkumaran. Intra-operatively the fracture was stabilized rigidly. Tight elastrocrepe bandaging done to ensure early mobilization of ankle, which is the advantage of the particular treatment. The x-ray taken immediately after surgery showed good bony alignment without any subluxation of ankle joint and rigid fixation of fragments. Post operatively the complainant was encouraged to do ankle joint movements and he was given good post-operative by means of IV antibiosis, analgesics and regular dressing and the complainant had an uneventful post- operative period and ultimately on 25-02-2003 sutures were removed and he was discharged on 26-02-2003 with specific instructions to follow namely;
1. Strict non weight bearing of left leg for 3 months (not walk and stand with leg).
2. To take the prescribed appropriate oral antibiotics and analgesics. During the follow up days 1 x 1 cm wound was noted over medial malleous with mild serous discharge which indicated early injection. Serous discharge was sent for culture and sensitivity and antibiotics were given according to the report and the complainant was advised not to weight bear till fracture gets united. On further follow up the wound was better and dressing done and oral antibiotics continued. On 15-04-2003 the complainant came with complaint of pain and swelling over ankle and when she 9 was questioned about weight bearing, he informed that he was walking with the help of a stick for the past few days which was against the advice of this opposite party. Examination reveals healed wound with swelling of ankle joint x-ray was taken which showed a minimal periosteal reaction which indicate infection. The patient was strictly advised not to weight bear till fracture unites and oral antibiotics were given. For the swelling and pain the complainant was advised to undergo physiotherapy by means wax bath from 15-04-2003 to 28-04-2003 and after physiotherapy the pain was less and the swelling was better. The x-rays taken showed progress of union. On 07-06-2003 the complainant came up for follow up. There was only minimal serous discharge which was sent for culture and sensitivity and the report showed no growth in culture which indicated that infection is under control. Against the advice, the complainant started weight bearing and he had joined duty. On 02-10-2003 the complainant came with fever severe swelling pain and inability to stand and walk. The complainant said he had a trivial fall and since then the pain and swelling progressively increased. Hence, x-ray was taken which showed secondary arthritis with subluxation of ankle. Implant and screw loosing and infection. The fall had percipalated the complication. The complainant was advised to get admitted immediately and to undergo surgery. It was proposed to give him IV antibiotics followed by arthrotamy and joint lavage and possible removal of implants which will relieve the patient's symptoms and to go for surgical arthodesis latter as a permanent modality of treatment. The complainant also consented IV antibiotics started immediately after admission and continued for 8 days.
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On 02-10-2003 under spinal anesthesia given by a qualified anesthesiologist arthrotomy debridement and complete joint lavage was done and infected plate and many screws were removed intra operatively. This opposite party found medial malleolus fracture was not united completely. So, removal of medial malleolus screw at this stage would hamper bony union. So that screw in the presence of infection was left only for further union of medial malleolus, in relation to the advantage of the complainant. Immediately after surgery, this was very well explained to the complainant and relatives. Complainant and relatives were very well aware of non removal of one screw over medial malleolus and reasons for keeping it. This opposite party told him this screw has to be removed after complete union of medial malleolus, which may take another 6 weeks and then only the wound will heal. Post operatively complainant was given IV antibiotics, analgesics and regular dressing and infection was under control post operatively. On 09-01-2003 the complainant was discharged. On discharge there was a wound over medial malleolus region. The complainant was advised on discharge. (i) Not to walk or stand with leg for 6 weeks. Otherwise weight bearing at this stage would disorganize his ankle joint. (ii) To continue oral antibiotics for 6 weeks (iii) Removal of screw after 6 weeks.
On 29-10-2003 again the complainant came for follow up with minimal pain and swelling. The complainant said he was walking with stick against this opposite party's advice. The minimal pain and swelling was due to (i) weight bearing (walking) prematurely, with the affected joint (ii) presence of infected screw which was left willingly to promote union. This opposite party advised him to remove the screw later and surgical arthrodesis after that as a permanent modality of treatment. 11
On the same day, to get a second opinion from this opposite party's Senior Doctor and to clear complainant doubts, he was referred to Dr.Mohandoss, Nagercoil. The complainant did not come for follow up at all. In stead of going to Dr.Mohandoss, the complainant seems to have consulted Dr.Thiraviam. Not being satisfied the complainant has approached Dr.Poovalingam who has done the operation and removed the screw that was left out for the reasons stated supra. The allegation that one screw was left over negligently is absolutely false. No doctor will certify that the screw was left over negligently. Neither the opinion of Dr.Thiraviam nor the opinion of Dr.Poovalingam will suggest negligence on the part of the opposite party. Admittedly the complainant has become alright. For the prolonged treatment the complainant has to blame himself as he has not followed the strict advice given by this opposite party. There is no necessity for the complainant to seek V.R.S. The expenses incurred by the complainant are legitimate and the treatment received by him from this opposite party is proper and genuine. There is no negligence on the part of this opposite party. The complaint itself is vexatious and it is motivated. Under these circumstances the complaint may be dismissed with costs.
7. The 2nd opposite party filed written version as follows: The complaint is not maintainable either in law or on facts. It is not correct to say that 1 st opposite party was working as Orthopaedic Surgeon at this 2nd opposite party's hospital. So this opposite party is not responsible for the deficiency of service and negligence of the opposite party. The 1st opposite party never worked under the 2nd opposite party at any point of time. The most of the allegations made under the complaint are false. This opposite party is not responsible for any compensation. 12
The 1st opposite party is running a separate hospital of his own at Valliyoor in the name and style as Balaji Ortho Hospital. Because no operation theater with proper facilities was available this opposite party let out the operation theater and a room for rent. No direct contact between the complainant and this opposite party. This opposite party has collected room rent and servicing charges only. The bills submitted by the petitioner already proved the same The 1st opposite party was never working under the 2nd opposite party as alleged in the complaint. There is no Master and Servant relationship with this opposite party and the 1st opposite party. Hence the opposite party cannot be vicariously held liable for the act of the 1st opposite party. This opposite party is an unnecessary party to this proceeding. Under these circumstances the complaint may be dismissed with costs.
8. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that there is some negligence on the part of the opposite parties on the ground that for the removal of screw the complainant has to undergo third operation. So leaving of one screw in the ankle will amounts to deficiency in service and negligently on the part of the first opposite party, when there is no proper and sufficient explanation offered by the first opposite party to leave the one screw in the ankle itself and passed the impugned order directing the opposite parties are to pay a sum of Rs.2,00,000/- towards compensation for mental agony and sufferings and to pay a sum of Rs.34,178/- towards the payment of financial loss and to pay a sum of Rs.5000/- as cost to the complainant.
9. Being aggrieved against that order both parties filed a two separate First Appeals. The appeal filed by the 2nd opposite party has taken on file in FA 164/ 2007 13 before the Principal Bench at Chennai and the same was transmitted to this circuit Bench on the point of jurisdictional limits and taken on file in F.A.No.06/2013.
10. The appeal filed by the 1st opposite party as taken on file in F.A.No.223/2007 before the Principal Bench at Chennai and the same was transmitted to this circuit Bench on the point of jurisdictional limits and taken on file in F.A.No.07/2013.
11. Both appeals are joined together since both appeals are connected and posted for pronouncing common order.
12. For the reception of additional documents namely case sheets in respect of the complainant which was dismissed by this Commission and the appellant/1st opposite party took the matter for Revision before Hon'ble National Consumer Disputes Redressal Commission and by order dated 19.10.2015 the Revision Petition No.575/2011. The Hon'ble National Consumer Disputes Redressal Commission had directed the District Forum to allow the said additional documents to be filed by the appellant. After giving an opportunity to the appellant to prove the documents in accordance with law and also the complainant was permitted to file additional documents to rebut to the additional documents allowed to be filed by the appellant. Accordingly this Commission has remitted the matter to the Learned District Forum for receiving proposed additional documents and for giving opportunity to the appellant herein to prove the documents and opportunity to the complainant to file additional documents to rebut to the new documents sought to be filled by the appellant. The District Forum has taken the case sheets it's filed as one of the Exhibit as Ex.B2. The appellant filed a separate specific application before the District Forum for the examination of expert witness for establishing the case of the opposite party. About the facts and circumstances for leaving the screw after the 14 surgery was over. The above application was returned by the District Forum with an endorsement that neither this Commission nor the National Commission has observed that the examination of additional witnesses could be undertaken in this connection.
13. After receiving the additional documents as Ex.B2 by the District Forum the first opposite party preferred an unnumbered C.M.P.S.R.No.371/2018 for permitting him to adduce evidence through examining the witness in the light of the order passed by the National Commission in Revision Petition No.575/2011 and the same was dismissed. The memo filed by the counsel for the 1st opposite party informing this Commission permitting the opposite party to approach the Hon'ble Madurai Bench of Madras High Court to stop the proceedings in this appeal and the same was rejected. Therefore Ex.B2 is marked as additional document in F.A.No.07/2013 by the appellant.
14. Being aggrieved against the order passed by the District Forum challenging it by filing the appeal in F.A.No.06/2013 the 2nd opposite party by stating that the appellant/2nd opposite party had only facilitated the second respondent by providing the operation theatre and post operative facilities and there is no relationship of master and servant relationship between the appellant and the 2nd respondent doctor. The second respondent was never on the rolls of the appellant and the second respondent was neither employed nor attached to the hospital. The second respondent is an orthopaedic surgeon and he did not have an operation theatre of his own he used to admit his patients and use the facilities of the hospital. Hence vicarious liability cannot be fastened on the appellant there is no negligence on the part of the second opposite party in respect of the treatment given. Neither the 15 opinion nor the evidence given by the experts attributes any negligence towards the second respondent doctor. Therefore the appeal may be allowed and to set aside the order passed by the District Forum.
15. In the separate appeal filed by the first opposite party in F.A.No.07/2013 stated that the Forum below failed to appreciate the facts that the evidence let in by Dr.T.Thiraviam examined as RW1 clearly envisaged that by virtue of the visuals of the x-ray it was clear that the union of the medial malleolus with one screw was delayed and arthritis and infection were found. He had also opined that leaving a screw to keep the fractured bones intact while removing the other screws was standard Orthopaedic Protocol Management followed by orthopaedic surgeon high velocity injury were more prone to complications like infection and arthritis removal of the medial malleolus screw at that time would have definitely hampered progressing of the union. For the said reason the screw was intentionally not removed and that the appellant had advised the first respondent to undergo removal of the screw after three weeks. The pain and delayed union of the left ankle joint was not due to technical error but only due to presence of infection.
16. Ex.B2 is marked as additional evidence in F.A.No.07/2013 on the side of 1st opposite party.
17. Points for consideration are:-
18. (1) Whether the opposite parties are negligent in performing surgery?
(2) Whether the order passed by the Learned District Forum, Tirunelveli in C.C.No.105/2004 dated 14.02.2007 is sustainable under law or not?
19. Point: The complainant has availed the service of the doctor B.Sankaravenkatesan who has conducted the surgery at the Excell Hitech hospital at 16 Valliyoor. The complainant was working as a Head Constable at Valliyoor police station he met with an accident on 13.02.2003 at Valliyoor immediately after the accident he was admitted at the Excell Hitech hospital at Valliyoor in I.P.No.53/2003 for treatment. The complainant was attended by doctor B.Sankaravenkatesan and he has diagnosed the injury and performed of surgery (ORIF) on 13.02.2003 at Excell Hitech hospital and the complainant was discharged on 26.02.2003. The complainant was re-admitted in the same hospital and the same doctor has performed the second surgery on 02.10.2003 and one screw was left in the ankle and the complainant had discharged on 09.10.2003 from the hospital. The complaint of pain in the injury the complainant has once again approached the doctor on 29.10.2003 on the same day he was referred to doctor Mohandoss at Nagercoil for 2nd opinion by the doctor. Instead of going to Dr.Mohandoss the complainant has consulted Dr.T.Thiraviam on 07.11.2003 and the said doctor advised him for an ankle arthritis surgery. The third operation was conducted by Dr.S.Poovalingam at Shifa Hospital, Tirunelveli on 11.11.2003 and during the operation the doctor has removed this screw left by the Dr. B.Sankaravenkatesan on 02.10.2003 during the second surgery. The complainant was servicing in the police department as Head Constable was forced to enter V.R.S. from the service with effect from 01.06.2004.
20. The counsel for the complainant would contend that during the 2nd surgery on 02.10.2003 the doctor has left one screw in the injury negligently which caused heavy pain and paved way for the deficiency in service.
21 . Whereas the counsel for the opposite party would contend that the doctor has left the screw intentionally not removed. Since, he found medial malleolus fracture was not united completely. So, removal of medial malleolus screw at that 17 stage would hamper bony union. So, that the screw in the presence of infection was left only for further union of medial malleolus, in relation to the advantage of the complainant.
22. The complainant examined PW2 Dr.S.Poovalingam to prove the act of leaving a screw in the injury negligently. The above witness is a senior specialist in the Orthopaedic field.
23. The Learned District Forum relying upon the evidence deposed by the witness who is an expert of more than 30 years in the field of consultative orthopaedic and he is also formerly Professor of Ortho in Tirunelveli Medical College and he is the President of the Indian Medical Association Tirunelveli and also Chairman of St.John's Ambulance. He is also the consulting doctor Legal Aid Authority, Tirunelveli and he is working as a Principal of Devendra College of Physiotherapy.
24. The above witness deposed before the District Forum that the complainant came on 11.11.2003 before him at Shifa Hospital with the complaint of pus coming from the left ankle with pain. He told to the witness that he was previously treated and surgery was also done on the left ankle. Further he informed that because of pus oozing out the screws were removed before. On considering the previous history from the complainant the witness took the x-ray of left ankle of the complainant. On perusal of x-ray the witness noticed there was one screw left out without removal. The above screw was inside the joint serving no purpose and caused pain. The inner malleolus was vascular (dead). The witness removed the screw which was embedded in the joint. The fracture was mal united with infection. The M.O.1 the view of the x-ray, the screw appears to be fixing the dead medial malleolus. But the lateral view it is clear that the screw is not fixing the medial malleolus. The presence 18 of screw inside the joint is the cause of pain and infection. After removal of the screw the infection is controlled, pain is remarkably reduced and there is no movement in the left ankle. The above statement of the witness before the District Forum categorically proved the negligence committed by the first opposite party during second surgery.
25. For the question raised on the side of the opposite party the witness answered below: Question: Even in the presence of infection, necessary implant can be left out without removal to promote further union if fracture not united completely? Answer: This screw is left very rarely in the presence of infection.
26. The complainant produced the Ex.A1 to Ex.A12 supporting his case and examined himself as PW1 and examined the witness PW2 who is an expert is having rich experience in dealing with the orthopaedic surgery. Once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or negligence. The Hon'ble Supreme Court of India - in the case of - Smt. Savita Garg -Vs- National Heart Institute 2004 (8) SCC 56 It has been observed as under: - "Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of treating doctor/or hospital. Therefore, in any case, the hospital which is in a better position to disclose that 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.
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27. It has been also observed in reported case of Kusum Sharma & Ors vs Batra Hospital &Medical Research 2010 3 MLJ 512 SC negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. "A medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field".
28. It was proved by the complainant leaving one screw during the second surgery would amounts to negligence on the part of the 1st opposite party. The evidence of PW2 to prove the case of the complainant.
29. Now it is the duty of the opposite party to justify that there was no negligence on their part. When the witness answered in the cross examination leaving a screw is very rarely in the presence of infection. Therefore leaving of screw by the first opposite party is not a standard practice in the field. Now, the duty of discharging the burden heavily on the opposite parties they must produced sufficient supporting evidences and medical text. The opposite parties not able to disprove the statement of PW2 that it is only a standard practice adopted in the field. The opposite parties relying on the evidences adduced by the witness RW2 Dr.T.Thiravium examined on the side of opposite parties. No supporting evidences or medical text is mentioned by the above witness in his deposition were not produced.
30. The above witness mentioned infection is a inherent risk and inevitable happening of all orthopaedic surgery. Here the allegations raised by the complainant is only with regard to prolonging of treatment not adopting standard practice by leaving a screw. The statement of PW2 would clearly prove the negligence on the 20 part of the first opposite party. The statement of RW2 not supports the case of the opposite party. PW2 noticed the screw not properly fixed. In the x-ray taken by the opposite party it proves the negligence on the part of the first opposite party in performing the surgery. In the absence any medical text or any other supporting evidences it could not be accepted as valid one by this Commission.
31. The medical text produced by the opposite party in additional typeset only relevant to data for the reported incidence of wound infection. The negligence is only left out one screw led prolonged treatment and pain suffering monetary loss. The crew also not properly fixed as explained by PW2 who is an expert in this field. The medical text is no way of support the case of the opposite party. The creditability of expert witness and an ordinary witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions - discussed in the citation relying on III (2009) CPJ 17 (SC) Malay Kumar Ganguly vs Sukumar Mukherjee (DR) & Ors was produced by the opposite party with their additional typeset. The witnesses PW2 and RW2 are examined on both sides has discussed above PW2 is in a better position than the RW2. Since, no supporting evidences or medical text was produced by the opposite party. Therefore, this commission is having the view accept the statement of the witness PW2 alone. The opinion given by the PW2 only based on diagnosis treatment given to the complainant and also seen the x-ray taken at the time of admission.
32. It was also discussed in the above citation at page number 59 " in determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account. When leaving a 21 screw without any purpose for improving re-union of fracture and also causing infection could not be a standard procedure and also failure to take reasonable care it does not require any etc., skill or diligence. A normal prudent man would be decided to remove the screw present without any purpose and cause infection pain and suffering.
33. The citation relied on by the opposite party - (1996) 2 SCC 634 - in the case of Achutrao Haribhau Khodwa and Others -Vs- State of Maharashtra and Others enclosed in additional typeset and also not support the case of the opposite party. In the above case the patient was admitted for a simple case of sterilization operation after delivery. But even after a normal surgery she did not come out of the hospital alive. Leaving the mop, in the patient's abdomen during the first operation (sterilization) led, ultimately, to her death. Since that a mop not left inside the body, the second operation would not have taken place. Leaving of that mop inside the abdomen of the patient which led to the development of peritonitis leading to her death. We have no hesitation in holding that Chandrikabai died due to negligence of R2 & R3 (two performed first surgery of (sterilization).
34. In the above citation also discussed in para 14 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 to be guilty of negligence. But in the present case leaving the mop patient's abdomen during the first operation for sterilization led ultimately to her death.
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35. When we consider the above discussions compared with facts of present appeal the PW2 who is an expert in the field categorically stated before the District Forum, when the complainant approached him for consultation he took x-ray and found the presence of screw inside the joint serving no purpose and causing pain and also noticed the inner malleolus was dead. The fracture mal united with infection for supporting his version M.O.1 x-ray taken by PW2 and the case sheet maintained in Shifa Hospital is marked as Ex.A12. The case of the first opposite party he left out the screw only for benefit of the patient and the re-union of fracture was falsified by the statement of PW2 when it was left without any purpose and also causing infection and oozing of pus Leaving this screw without removal aggravate the condition of the patient which ultimately prolonged the treatment and sufferings. The PW2 further stated after removal of this screw the infection was controlled pain is remarkably reduced. It is a development would clearly prove leaving the screw no way benefited the patient it was only aggravate the wound. The first opposite party after knowing the leaving one screw inside the joint without any purpose. As a normal prudent doctor be ought to have removed the left out screw during the second surgery. The first opposite party raised an allegation the patient not followed his instructions is reason for the prolonging of a treatment.
36. There is no denial for the version of 1st opposite party that he was called by the 2nd opposite party hospital to attend the patient when he was admitted in the hospital. When there is no denial the complainant was brought to the 2nd opposite party hospital for treatment the hospital arranged for the engagement of the 1st opposite party for giving treatment to the complainant.
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37. The complainant was under legal obligations to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailments which he suffered only due to improper performance of surgery by the doctor and if the surgery had been successful he would not have suffering of ailments by the patient. After surgery may be due to various reasons known in medical hysterics prudent whereas suffering of any such ailments is a result of improper performance of the surgery and thereto with the degree of negligence on the part of doctor are the nexus of two factors to sue a doctor for his negligence. To prove the case of negligence of doctor the medical evidence of experts in the field to prove the later his requires.
38. The complainant herein proved his complaint by producing Exhibits as well as evidence on his side and discharged the burden of proving the negligence on the part of the opposite parties. When the complainant discharged the initial burden and make out a case of negligence on the part of the opposite parties the onus shifts on to the opposite parties. Here both opposite parties are failed to discharge their burden to prove that there is no negligence on their part. Therefore, the opposite parties are negligent in performing the surgery and answered accordingly for the point for consideration no.1.
39. Point No.2: The Learned District Forum passed the impugned order after considering the evidences adduced by both parties before it. In its order discussed the events and relying upon the evidences given by PW2 who is an expert in the field. The contention of the first opposite party that the complainant did not follow up the advice cannot be taken into consideration in the absence of any supporting evidence against the expert evidence of PW2. The learned District Forum also found 24 leaving of one screw in the ankle will amounts to deficiency in service and negligence on the part of the 1st opposite party in the absence of any explanation. The learned District Forum also held that the objection raised by the second opposite party that there is no relationship between the opposite parties as master and servant, the first opposite party is using the second opposite party hospital also rejected by District Forum. The learned District Forum discussed in its order para 26 no proper authorization to represent the case on behalf of the proprietor of Excell Hitech Hospital. The present appeal F.A.No.06/2013 is filed only by the proprietor. In the appeal while fixing the quantum of compensation, the learned District Forum discussing the point in its order in para 27 allowing only 60% in the claim of medical expenses and also awarding compensation of Rs.2,00,000/- for mental agony and sufferings fixing. Even though the complainant claim Rs.5,00,000/- as compensation in his complaint. The complainant did not filed any cross appeal for enhancement of compensation. Therefore the question of enhancing compensation does not arise.
40. The learned District Forum came to a conclusion by fixing negligence on the part of the opposite parties 1 & 2 and passed the award in favour of the complainant. Based on the discussions above it is held that there is no illegality, irregularity or jurisdictional error in the order passed by the District Forum and the same is ordered to be upheld. Therefore the order passed by the learned District Forum is sustainable under law and answered accordingly for the point for consideration no.2.
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41. In the result, F.A.No.06/2013:-
In the result, the appeal is dismissed by confirming the order of the learned District Forum, Tirunelveli made in C.C.No.105/2004 dated 14.02.2007. In addition the appellant/2nd opposite party is directed to pay additional cost of Rs.5000/- to the 1st respondent/complainant in this appeal.
42. F.A.No.07/2013:-
In the result, the appeal is dismissed by confirming the order of the learned District Forum, Tirunelveli made in C.C.No.105/2004 dated 14.02.2007. In addition the appellant/1st opposite party is directed to pay additional cost of Rs.5000/- to the 1st respondent/complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 13rd day of April 2022.
Sd/-xxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.