State Consumer Disputes Redressal Commission
1. Dr.D.Radhakrishna Reddy, M.S, M.Ch ... vs 1. T.Kalyan Chakravarthi S/O ... on 14 November, 2012
BEFORE THE CIRCUIT BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT TIRUPATHI FA.NO. 777 OF 2011 AGAINST CC.NO.77 OF 2010 DISTRICT FORUM-II CHITTOOR AT TIRUPATHI. Between: 1. Dr.D.Radhakrishna Reddy, M.S, M.Ch (Neurosurgery), S/o Narayana Reddy, Indian, aged about 65 years, D.No.82, Sairam street, Tirupati, Chittoor Dist. 2. Dr.D.B.Sashidhar Reddy, MS, DNB (Ortho), S/o D.Radha Krishna Reddy, Indian, aged about 40 years, D.No.87, Sri Rama Devi Multi Specialty Hospital, Sairam Street, Tirupati, Chittoor Dist. .. Appellants/Opp. parties And 1. T.Kalyan Chakravarthi S/o T.Veeraiah, Hindu, aged about 21 years, R/o D.No.8/604, Prakash Nagar, Kadapa, YSR Kadapa Dist. .. Respondent/Complainant 2. The New India Insurance Co. Ltd., D.No.11 & 12, Balaji Colony, Opp.State Bank of Mysore, Tirupati, Chittoor Dist Rep.by its Branch Manager. .. Respondent/ Impleaded party ( R-2 is impleaded as per orders in IA.No.698/12 dt.2.7.2012). Counsel for the Appellant : M/s KRR Associates Counsel for the Respondent : Mr.M.Hari Babu for R-1 Mr.Katta Laxmi Prasad for R-2 CORAM: SRI JUSTICE D. APPA RAO, HONBLE PRESIDENT AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER
WEDNESDAY. THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND TWELVE Oral Order: (Per Sri Thota Ashok Kumar, Honble Member).
1. This appeal is directed against the order passed by the District Consumer Forum-II at Tirupathi against the orders passed in CC.No.77/2010 dt.6.9.2011. For convenience sake the parties as arrayed in the complaint are referred to hereunder.
2. The brief facts of the complaint are as under:-
On 12.9.2009 at about 8.30 P.M when the complainant was about to enter his house, the sunshade accidentally fell on his back due to which he sustained injury and he was rushed to Pragathi Orthopedic General Hospital, Kadapa.
One Dr.B.Ramachandraiah, who attended on the complainant, stated that he had a fracture to the back bone i.e L1 and he requires rest and there is no necessity for conducting any surgery and he can recover within six weeks by medication and accordingly he was discharged on 13.9.2009. However on the advise of the Medical Officer of Arogyamithra, Kadapa, the complainant was admitted in the hospital of the opposite parties for better treatment where different tests were conducted on him and stated that as there is a fracture to the Spine, it is necessary for him to undergo surgery and accordingly the opposite parties applied for the benefit of Arogyasree scheme at Hyderabad by on-line and obtained cash credit facility and after approval they performed the surgery on 16.9.2009 without the permission and consult of parents of the complainant and that said surgery was done malafidely to get financial benefit though it is not necessary.
The complainant was informed that the surgery was successful. It is stated that when there was no function of the lower limbs, the complainant brought the said fact to the notice of the opposite parties but they informed that the complainant is still under the influence of anesthesia and in due course of time he will be alright. But to his utter surprise, the condition continued for another two days and he was discharged on 2.10.2009. When the complainant asked about the condition and supply of case sheet, the opposite parties did not respond properly.
3. The complainant stated that he was shifted to other hospitals by spending huge amounts and Dr.T.M.Nagesh who examined him stated that the surgery was failure and requires re-surgery and advised to approach higher institutions. Subsequently the complainant got admitted in NIMS, Hyderabad where re-surgery was performed and the original internal fixation fixed by the opposite party was removed and fresh implants were fixed. However, on account of improper surgery, spinal nerve was damaged and the complainant was totally paralyzed down below the hip and both the lower limbs i.e legs are without any function, and the condition continued even now in spite of spending huge monies. The complainant who was aged about 19 years studying intermediate has lost his bright future, sustained severe loss, mental agony and suffering and literally his life was ruined. Hence claimed a compensation of Rs.1,60,474/- towards medical and miscellaneous expenses incurred at various places and another sum of Rs.1,00,000/- for the future medical expenses and Rs.7,39,576/- towards loss of amenities, mental agony and damages. In all the complainant claimed a sum of Rs.10,00,000/- with interest at 24% p.a.
4. The opposite party filed written version denying the allegations made in the complaint but admitted that the complainant admitted in their hospital for treatment and that under the scheme of Arogyasree the complainant was treated and surgery was performed on him which was necessary on account of the damage caused to the spine to the fracture of the bone and in fact when the complainant came to the hospital his both legs were not functioning. In other words, the complainant was suffering with defect on account of injury itself and as surgery was inevitable it was performed, and the complainant as well as the attendants were well informed about the necessity of the surgery. It is further contended that though the surgery was successful the recovery would be very slow say about for six months and that too normalcy cannot be resorted but the recovery will be about 50 60%.
It is further contended that the patient who was advised total bed rest was unnecessarily shifted to various places like other hospitals at Tirupati, Rayavellore and Hyderabad and this has aggravated the injury and that these opposite parties have taken all the reasonable care and performed the surgery. There is no deficiency in service on their part and thus prayed for dismissal of the complaint with costs.
5. The complainant filed affidavit evidence and marked Exs A-1 to A-46. The first opposite party filed his affidavit evidence and examined Dr.M.Vamsidhar Reddy through Advocate Commission as RW.2 and marked Exs.B-1 to B6 on their behalf.
6. Having heard both sides and considering the material on record, the District Forum allowed the complaint in part and directed the opposite parties to pay to the complainant a sum of Rs.1,60,474/-, and Rs.2,00,000/- towards compensation and costs of Rs.2000/- with interest at 9% p.a from the date of complaint till the date of realization. The District Forum further stated that in the event of amount being deposited, the complainant is permitted to withdraw Rs.2,00,000/- and the balance amount shall be kept in Fixed Deposit in Nationalized Bank at Kadapa and the complainant is entitled for interest every month after initial lapse of one year from the date of deposit and directed the complainant to furnish the bank particulars to the Forum.
7. Aggrieved by the said order, the opposite parties filed this appeal.
8. During the pendency of the appeal, the appellants filed an application FA.IA.No.698 of 2012 to implead M/s New India Insurance Co. Ltd., as the second respondent and this Commission vide orders dt.2.7.2012 allowed the said application. Accordingly M/s New India Insurance Co. Ltd., is added as second respondent in the appeal.
9. The appellants mainly contended that the complainant utterly failed to prove the allegation against the opposite parties that during the course of spine surgery the screws were fixed to the nerves instead of bones, and that the case sheet Ex.B-1 and discharge summary E.B-3 reveal that the surgery was done under C Arm Verification and implants were correctly placed and X-Rays taken immediately after surgery in the intensive care unit which were produced under Ex..B-4 and that the same reveals perfect placement of implants. It is further contended that the medical report of NIMS, Hyderabad, which was sought by the District Forum before numbering the complaint, merely states that they found the screws medially placed but does not attribute the same to the appellants nor does the report specifically disclose that there has been negligence on the part of the appellants. The medical opinion sought from SVIMS, Tirupati also negatives the contention of the complainant that the surgery was done faultily and that the findings of the District Forum that the screws were mis-fixed and hence medical negligence and deficiency of service is proved is nothing but fallacious. It is settled principle of law that for imposing liability for negligence, the breach of duty complained of should be directly connected to the damage suffered, but without any proof adduced by the complainant to the effect that the improperly fixed screws have damaged the nerves in the spinal cord resulting in nonfunctioning of the lower limbs of the complainant, the District Forum ought not to have concluded that it may be that screws were fixed to the bones but the logical conclusion cannot be drawn that it did not travel the canal. The District Forum ignored Ex.B-4 X-Rays which were taken immediately after surgery when the respondent/complainant was in the intensive care unit which showed correct placement of screws. It is also contended that the District Forum failed to consider that no expert evidence is adduced by the complainant to establish the allegations of negligence made against the appellants/opposite parties and that without expert evidence no case of medical negligence can be made out and that the Expert reports of NIMS or SVIMS or medical record produced by the respondent/complainant do not disclose any mistake or negligence on the part of the opposite parties and in the absence of doctors evidence to that effect allegations of negligence are legally unsustainable and thus prayed to allow the appeal and set aside the impugned order. 2nd respondent/Insurance company contended that opposite party no.1 who said to have conducted operation is not an insured person and that the policy in question in original is not filed and that even otherwise policy bearing No. 612700/36/09/34/0000001 was issued for the period from 04.04.2009 to 03.04.2010 and that no information was given during the subsistence of the policy and that opposite party no.2 did not conduct any operation and he is only RMO of the hospital and there is no basis for medical negligence by the second opposite party. It is also contended by the 2nd respondent/Insurance company that it is for the insured to first contest the case under intimation to the company and Ops 1 and 2 have to satisfy the award if any and then seek indemnification after having satisfied the order and it is mandatory that the terms and conditions of the policy are complied with and that this Commission cannot assume jurisdiction in the present case as it is a separate contract between the Insurance company and the Opposite party no.2 and that had the complainant made the Insurance company as a party to the Consumer Complaint, it would have filed counter, adduce evidence and since it was not so made, the Insurance company is not in a position to contest the case as required under law and that the Insurance company is not a proper or necessary party to the Appeal and thus prayed to dismiss the Appeal against it.
10. Heard both sides with reference to their respective contentions in detail.
11. Now the point for consideration is whether the order of the District Forum is vitiated by law and facts ?
12. There is no dispute that the complainant was admitted in the hospital of opposite parties 1 and 2 for treatment on account of the damage caused to the Spine due to fracture of the bone and that under the scheme of Arogyasree he was treated and surgery was performed on the complainant on 16.09.2009.
13. According to the complainant, since there was no function of his lower limbs after such a surgery he was shifted to several other hospitals and that Dr. T. M. Nagesh, who examined him stated that the said surgery was failure and requires resurgery and that on such advise he was got admitted in NIMS, Hyderabad where re-surgery was performed and the original internal fixation, fixed by the opposite parties was removed and fresh implants were fixed and that as evidenced by Ex. A-46 on account of improper surgery Spinal nerve was damaged and he was paralyzed down below the hip and that his legs are not functioning as before and thus he was subjected to medical expenses, mental agony and disability etc.
14. On the other hand, the opposite parties strongly resisted the case of the complainant and mainly contended that by the time the complainant was brought to their hospital, his both lower limbs were not functioning and that they have taken all precautions as required to be taken by ordinary competent persons in treating the complainant and that there is no legal or dependable evidence on record to establish that the surgery conducted by them was a failure and that the evidence of RW.2 coupled with Ex.
B4 X- rays establish their contentions.
15. Had the surgery conducted by opposite parties was perfect, the complainant would not have undergone another surgery at NIMS because it is not a fancy to have second surgery, rather it is painful and expensive. There is no whisper from RW-2 that the 2nd surgery was not necessary or uncalled for. According to the said witness the screws which were so travelling into the canal of the Spine, were due to displacement. The opposite parties contend that the complainant should have taken rest after the first surgery but instead of it, he had been to different hospitals hurriedly and it caused hindrance to the implants. As righty observed by the District Forum, there is no reference either in Ex. A-46, 2nd MR report or Ex. B4 X ryas, to show the displacement of the implants, originally fixed by the opposite parties in the first surgery. It appears that to help his professionals, RW.2 made a feeble attempt in supporting the case of the opposite parties that it may be on account of displacement and he was not sure in the said context. There are strong circumstances on record to hold that it was so on account of mis-fixation but not on account of displacement as contended by the opposite parties and that such mis-fixation necessitated for 2nd surgery when the screws which were so fixed were nearer to the Spine, which is one of the vital organ, the opposite parties ought to have taken more care and it also requires specialization to perform such a surgery. They did not take post operative X-ray to find out whether the implants were properly fixed or not . According to RW.2 with the latest technology, the implants were fixed and there cannot be any chance of medical negligence. Even then it is difficult to conclude that the screws did not travel to the canal and that the implants were safely launched into the bones and did not cause any damage to the nerves.
16. In a decision reported in (CPJ) 2010 (III) page 1 , Honble Supreme Court of India held that only when the complicated questions arise, then only the Consumer Forum is expected to rely upon the complicated issues arise the parties may be directed to approach the Civil Court and in the given case basing on the principle of Res Ipse loquitur can also be applied.
Therefore, the argument of the OPs that there is no expert evidence on behalf of the complainant holds no water. In a decision between Baby Akanksha (minor ) Vs. Kukresa Nursing Home 2008 CTJ 293, Honble Delhi State Commission held that whenever a case of medical negligence is field by a layman it becomes an obligation of the District Forum to obtain the expert opinion on its own. Probably for the said reason initially the District Forum before numbering the Consumer complaint the District Forum sought medical report of NIMS, Hyderabad and it gave report that they found the screws medially placed and in the circumstances of the case, we are satisfied to hold that it amounts to professional negligence on the part of the opposite parties 1 and 2.
17. The District Forum rightly discussed the matter and came to a conclusion assigning reasons that the opposite parties rendered deficient service to the complainant and that it also amounts to medical negligence for which they are answerable. It also discussed and arrived at a right conclusion that the opposite parties are liable to pay Rs.1,60,474/- towards medical expenses etc, Rs.2,00,000/- compensation and costs of Rs.2,000/-. Absolutely, there are no reasons to take a different view. It appears that since there is no percentage of disability and details of Income and therefore the District Forum taken into consideration of the age, discomfort, loss of prospects, agony etc., granted global compensation of Rs.2,00,000/-
. Had there was any evidence in the said context, there was possibility/necessity of calculating compensation basing on multiplier provided under the provisions of M. V. Act. Hence., order under Appeal is sustainable and accordingly it is ordered and appeal filed by the opposite parties 1 and 2 against the respondent/complainant is liable to be dismissed.
18. Admittedly, the complainant did not make the 2nd respondent/Insurance company as party to the Consumer Complaint, nor the opposite parties 1 and 2 informed about the surgery to the said Insurance company during the subsistence of the alleged policy. It is a separate contract between 2nd opposite party and the Insurance company . It is for the opposite parties 1 and 2 to prove that they did not commit any violation of policy conditions to seek indemnification of their liability.
Hence it is difficult to fasten 2nd respondent insurance company with any liability in this case and hence the Appeal against 2nd respondent is also liable to be dismissed. However, the opposite parties are at liberty to take necessary recourse against the Insurance company before competent Forum/Court by establishing their case
19. In the result, the appeal filed against 1st respondent/complainant and 2nd respondent Insurance company is dismissed confirming the order of the District Forum. However, the opposite parties 1 and 2 are at liberty to take necessary recourse against the Insurance company before competent authority by establishing their right, if any, against the said Insurance company. The parties shall bear their own costs of the Appeal.
PRESIDENT MEMBER DATED :
14.11.2012.