State Consumer Disputes Redressal Commission
B.G.S Ravi Raman, S/O B.V. Ramana Rao, ... vs 1. Subham Prema Hospital, Rep By Its ... on 31 March, 2015
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BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION: HYDERABAD.
F.A.No.869/2011 against C.C.No.117/2009, District Forum-I,
Visakhapatnam.
Between:
Sri B.G.S.Ravi Raman, S/o B.V.Ramana Rao,
Hindu, aged 31 years,
residing at Door No.33-1-28/1,
South jail Road, Allipuram,
Visakhapatnam.
..Appellant/
Complainant
And
1. Subham Prema Hospital, rep by its Superintendent, Near Ramatalkies
Junction, Visakhapatnam.
2. Dr.Y.Siva Sai Kumar Reddy, S/o Y.Sivashankara Reddy, aged 42 years,
C/o Subham Prema Hospital, Visakhapatnam.
3. Dr.S.V.Adinarayana, S/o late Kanakam, aged 65
years, Subham Prema Hospital, Opp: Rama Theatre, Visakhapatnam.
4. The New India Assurance Company Ltd., rep by its Branch Manager,
2nd Floor, Pavan Paradise, Opp. Pollocks School, Visakhapatnam.
5. The New India Assurance Company Ltd., rep by its Branch Manager
having office at D.No.13-28-16, 1st floor, Sai complex, KGH Uproad,
Maharanipeta, Visakhapatnam-530 002.
Respondents/
Opposite parties.
Counsel for the Appellant: M/s.C.R.Vasantha Kumar.
Counsel for the Respondents: M/s.G.Ramagopal-R1 to R3.
Mr.Katta Laxmi Prasad R4 &R5.
QUORUM:SRI T.ASHOK KUMAR, HON'BLE MEMBER.
AND SRI S.BHUJANGA RAO, HON'BLE MEMBER .
TUESDAY, THE THIRTY FIRST DAY OF MARCH, TWO THOUSAND FIFTEEN Oral Order ( Per Sri S.Bhujanga Rao, Hon'ble Member.) *** The complainant filed the appeal dis-satisfied with the order dated 22- 8-2011 of the District Forum-I, Visakhapatnam made in C.C.No.117/2009, whereunder the complaint filed by the appellant/complainant against the respondents/opposite parties alleging medical negligence was dismissed. 2
For the sake of convenience the parties are described as they are arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant met with an accident on 21.01.2004, while proceeding to Malkapuram and was hit by a tipper from behind and he suffered multiple fractures in his left thigh and knee and to his left arm. His mother also suffered with injuries. Both of them were admitted in A.N.Beach Hospital, Visakhapatnam and later, on the same day, the complainant was shifted to Opposite party Hospital for better treatment. The complainant suffered multiple fractures to his left leg and he was operated on 23.01.2004 and the broken bones of his left leg were joined, using a non- ISI brand steel nail and screws and he was inpatient in the hospital for 15 days i.e. from 21.01.2004 to 05.02.2004. He incurred an expenditure of Rs.37,500/- towards medical expenses and hospital charges. He paid for the steel nail and screws that are supplied by the hospital for fixing in his body for interlocking the broken leg and also incurred Rs.20,000/- towards miscellaneous expenses. However on 7.6.2005, the complainant suddenly felt pain in his left leg and could not move freely and by evening he could not move any more on his own and on 8.6.2005, he went to the Opposite party hospital and X-ray was taken and it revealed that the steel nail and screws fixed earlier in his left leg were broken. He was again admitted in the hospital on 10.06.2005 and underwent surgery on 11.06.2005 and the nail and screws which were used earlier were removed and fresh ones of a non- 3 ISI brand were used again. For this 2nd surgery, he incurred an expenditure of Rs.31,078/- and other miscellaneous charges of Rs.10,000/- and was inpatient in the hospital till 22.06.2005. Even thereafter he had difficulty while climbing of stairs and while walking, he felt pain even after 2nd operation. The complainant alleges that all this pain and suffering was due to the careless and improper care taken by the Hospital authorities, while selecting a non-ISI steel nail and screws and the nail and screws were broken within 1 ½ years of fixing and had original brand of ISI steel nail and screws were used, this situation would not have arisen. During the 2nd surgery, it was detected by the surgeons that there is a gap of 1 ½ inches between the broken pieces, which has not yet healed. While so, on 1.10.07, again he developed severe pain in left leg and when he went for medical check up, the X-ray revealed the screw in the left leg was again broken. Hence, the complainant got himself admitted in Pallavi Hospital, Maharanipeta, Visakhapatnam and underwent surgery on 14.02.2007. For the 3rd time, the Doctors had removed the steel nail and a broken screw and implanted fresh ones and also done necessary bone grafting. He was in the hospital for six days and was discharged on 19.02.2007 and incurred an expenditure of Rs.60,000/- and advised bed rest. The complainant alleges that opposite party has legal obligation to compensate the complainant for this unnecessary suffering, pain and expenditure because of the negligent treatment given, which amounts to deficiency in service.
The complainant submits that he is not able to walk freely, cannot ride a bike, not able to perform his regular course of activities, and the conjugal 4 life also has been affected. Hence this complaint for a direction to the Opposite parties to pay an amount of Rs.17,00,000/- towards compensation for unnecessary suffering, pain, tension and mental agony and also to reimburse the amount of Rs.1,58,578/-, incurred by the complainant, for getting his knee operated for three times, besides costs of Rs.50,000/-. Originally only 1st Opposite party was sued, later the Doctors, who conducted the operation were sued as Opposite parties 2 & 3 and thereafter, the Insurers who provided professional insurance cover to the Doctors are impleaded as Opposite parties 4 & 5.
The 1st Opposite party filed counter admitting that the complainant joining in its hospital for the fracture injury on 21.01.2004 and also the surgery conducted upon him on 23.01.2004. It denied the allegation that it used non-ISI brand steel nail and screws and specifically pleaded that the nail and screws used have ISO certification supplied by M/s.S.H.Pitkar Orthotools Pvt. Ltd., Pune and the 2nd surgery was not disputed. Opposite party No.1 pleaded that the complainant informed them about slipping accidentally, after which he experienced pain in left thigh, which was mentioned in the case sheet at the time of his admission for 2 nd time. It is because of fall/slipping both the nail and screws were broken which must be due to an impact with a hard object like floor etc. and during the 2nd surgery also, it is Pitkar Orthotools Pvt. Ltd., which supplied the screws and nail were used and it is an ISO certified company. O.P.1 also denied knowledge of the breakage of nail and screws 2nd time also and pleaded that the complainant 5 never gave any reason for the breakage of the screws, when he approached Pallavi hospital. The screws or nails will not break on their own accord, unless there was unnecessary and careless pressure caused on those parts of the body. In other words the complainant must have again fallen down accidentally or must have acted in such a manner which led to the breakage of screws. As a matter of fact, breakage of screw does not cause severe pain and in fact in some cases it facilitates fracture of the bone to heal fast, because there will be compression at fracture site i.e. dynamisation, which is done in certain cases to help heal the fracture. Thus the breakage of screw in this case can only lead to dynamisation, but not adversely and hence the complainant cannot claim that he suffered severe pain. It is not understood how and why bone grafting was done in 3rd surgery and there is absolutely no mistake or negligence so far as the earlier operations conducted. OP 1 further contended that the Doctor, who conducted 3rd surgery, would have clearly mentioned in the certificate that this course of treatment was because of the mistake committed in the earlier operations and thus the entire suffering of the complainant was due to his negligence and inadequate and improper quadriceps exercises and there is no damage to thigh muscles at all. Thus there is absolutely no deficiency in service on the part of the Opposite party No.1 and prayed for dismissal of the complaint. Opposite parties 2 & 3, the Doctors who were impleaded filed a memo adopting the counter of Opposite party No.1.
6Opposite party No.4, Insurance company, which provided professional indemnity policy in favour of the Opposite party No.3, valid for one year from 28.06.2003 to 27.06.2004 for an amount of Rs.10,00,000/- pleaded that as per the documents filed by the complainant, Opposite party No.3 neither conducted the operation nor treated the complainant and hence it is not a necessary party to proceedings at all and the complaint is liable to be dismissed. If at all the complainant is entitled for compensation, it would be against the opposite parties 1 and 2 only and pleaded that the present complaint is only to gain amount from Opposite party No.4 second time, as it already settled the claim of the complainant including medical bills, expenses etc in MOP 232/2004 on the file of Addl. Dist. Court, Vizianagaram settled before the Lok Adalat, Vizianagaram for an amount of Rs.3,00,000/- and the said amount includes pain and suffering, medical expenses etc. Hence the complainant is not entitled to claim the medical expenses in the present C.C and the complaint is without any bonafides or merits and in fact the earlier settlement of the claim was suppressed by the complainant. Moreover Opposite party No.3 never informed Opposite party No.4 about the alleged treatment or submitted claim form in respect of the alleged claim of the complainant and hence prayed to dismiss the complaint.
Opposite party No.5, the Insurer of Opposite party No.2 pleaded that Opposite party No.2 the Insured, as per the policy conditions is liable to inform Opposite party No.5 immediately after receipt of claim and notice, but as on today, it was not done so and thus there is violation of policy conditions by opposite party No.2 and hence the Opposite party No.5 is not 7 liable to indemnify Opposite party No.2. OP 5 further stated that Opposite party No.4 already settled the claim of the complainant including the medical bills and expenses in MOP 232/2004 on the file of Addl.Dist.Court, Vizianagaram and made a payment of Rs.3,00,000/- and hence the complainant is not at all entitled to claim the medical expenses in the present C.C. hence the complaint is liable to be dismissed.
During the course of enquiry before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and Ops also filed their affidavits and Exs.A1 to A37 were marked on behalf of the complainant and Exs.B1 to B6 are marked on behalf of the OPs.
Upon hearing the counsel for both parties, on consideration of the material on record and on consideration of the evidence adduced by both the parties, the District Forum came to the conclusion that there is no medical negligence or deficiency in service on the part of the opposite parties and dismissed the complaint.
Aggrieved by the said order, the complainant preferred the above appeal urging that the District Forum erred in totally rejecting the claim and not considering the material on record. That the District Forum failed to observe that mere using of the some surgical implements would make it a genuine material. That the District Forum erred in coming to the conclusion basing on the surmises and conjectures. That the District Forum erred in drawing adverse inference in not examining or filing affidavit of Dr.Ravi Shankar. That the District Forum ought to have looked into the genuineness 8 of Ex.B2, while it was specifically alleged by the complainant that the said document is only a manipulated one for the purpose of the case and that the screws broke twice, the District Forum failed to look into the second occurrence at all and also failed to look into the documents filed by the complainant in a proper perspective. The appellant/complainant finally prayed to set aside the impugned order and allow the complaint.
In this appeal, the appellant/complainant filed FA.IA.No.241/2014 seeking to refer the x-rays that were marked as Exs.A32 to A36 before the District Forum, as to the reasons for non-union to any government hospital for the purpose of obtaining the radiologist opinion and this Commission by its order dated 05-12-2013 allowed the petition and directed the office to send the x-rays i.e. Exs.A32 to A36 to the Radiologist Department, NIMS., Hyderabad for their opinion. Accordingly the registry sent the above said x- rays to the NIMS., Hospital and after examination of the x-rays, the Radiology department, NIMS hospital, Hyderabad sent their report dated 09- 4-2014. The respondents/O.Ps filed their objections dated 09-9-2014 for the Radiologist report (NIMS) dated 09-4-2014.
The appellant/complainant filed another petition i.e. FA.IA.No.240/2014 praying to permit him to cross-examine the deponents, who have filed the affidavits on behalf of the respondents/O.Ps. before the District Forum. This Commission by its order dated 05-12-2013 allowed the petition, in part, directing the petitioner/complainant to file interrogatories and on such filing of the interrogatories, the deponents shall file their 9 replies. Accordingly the appellant/complainant filed interrogatories on 28- 10-2014 and the respondents/Ops. filed their reply to the interrogatories filed by the complainant.
We heard the counsel for both the parties and perused the material placed on record including the written arguments filed by the respondents/opposite parties.
Now the point for consideration is whether the order of the District Forum is vitiated for mis-appreciation of fact or law?
The facts that the complainant met with an accident on 21-1-2004 and sustained multiple fractures to his left leg, thigh (femur) and knee along with other injuries and he was admitted to OP 1 hospital and on 21-3-2004, the complainant was operated and steel nail and screws were fixed during the surgery for interlocking the broken leg and he was discharged from the hospital on 05-2-2014 are not in dispute.
The case of the complainant is that on 07-6-2005 at about 9.00 am while the complainant was preparing to go out, the complainant suddenly felt pain in his left leg where he was operated upon and could not move freely, he consulted the doctor at OP 1 hospital on 08-6-2005 and the x-ray revealed the broken steel nail and screws that were fixed earlier to interlock the broken bone in his left leg and he was admitted in the hospital on 10-6- 2005 and was operated for the second time on 11-6-2005. The steel nail and screws which were used earlier during the first operation were removed and fresh ones with a non ISI brand were used again to join the broken 10 bones. Even after second operation, he had difficulty while climbing steps and while walking also he felt pain. While so, on 10-1-2007, the complainant once again developed severe pain in the left leg and when gone for medical check up, the x-ray revealed that the screw at the left knee was broken, so again on 13-2-2007, the complainant was admitted in Pallavi Hospital, Maharanipeta, Visakhapatnam and underwent surgery on 04-2-2007 for the third time where the doctors had removed the steel nail and a broken screw and implanted fresh ones. The complainant alleges that all his sufferings are due to the negligent act on the part of the opposite parties 1 to 3, when they treated the complainant earlier in their hospital, therefore, there was deficiency in service on their part and as such they are liable to pay compensation as prayed in the complaint.
The respondents/opp.parties have admitted about the admission of the complainant in OP 1 hospital on two occasions i.e. on 21.01.2004 and 08-6- 2005 and conducting of surgery on the complainant twice. The Ops 1 to 3 contended that utmost care was taken and all precautions were taken and the complainant was treated with all necessary medicines and surgery as contemplated by the standards in the field. The complainant did not follow the minimum precautions which are given to him, due to which, he was affected. They denied the allegation that because of using of non ISI material, the screws and nails were broken. They further contended that the nails and other implements used by them are very much of standard quality i.e. 'Pitkar' company materials and in fact Dr.Ravi Shankar also used the nail from the same company as can be seen from the bill dated 17-2-2007 11 issued by Geeta Enterprises. Therefore, there is no deficiency in service on their part and the complainant is not entitled to any of the reliefs sought for in the complaint.
In view of the contentions of both the parties, it is an undisputed fact that the nail and screws that were fixed during the first operation conducted on the complainant by OPs 2 and 3 were found broken during the second operation. The specific contention of the OPs is that they have used the nails and screws of ISO certification supplied by M/s. SH Pitcar Ortho Tools Pvt. Ltd., Pune and that it is because of fall or slipping, the nail and screws were broken due to impact with the hard object like floor etc., Ex.A17, admission-discharge certificate issued by OP 1 hospital would show that Pitcar nail of 10 x 40 has been used. Similarly Ex.B1, case sheet, for the first surgery, produced by OP1 mentions that Pitkar nail 10 x 40 has been used. Though the complainant claimed that non-ISI marked implements were used, he could not place any material to show and disprove the assertion of the OPs that the Pitkar company is an ISI approved company in manufacturing the surgical implements. The complainant has not disputed the fact that even during the third surgery on the complainant, Dr.Ravi Shankar of Pallavi hospital also used the same company make nail and screws, which is also evidenced by Ex.B3 certificate, issued by the dealer. Even the interrogatories and the answers given by the opposite parties and the report of the Radiologist, NIMS do not support the contention of the complainant that the screws and nails and other implements used by the OPs 1 to 3 during the first and second operations conducted on the 12 complainant in OP 1 hospital are of inferior quality/non ISI marked implements. It is to be noted that the complainant did not examine or even file the affidavit of Dr.Ravi Shankar finding fault with the mode of surgery conducted or of quality of nail and screw used by the OPs 1 to 3. In these circumstances, we have no hesitation to hold that the complainant failed to prove that the OPs 2 and 3 used non ISI marked implements i.e. nails and screws during the first and second operations conducted on complainant in OP 1 hospital.
Regarding the cause for breakage of the nail and screws, the contention of the complainant is that all of a sudden, he developed pain, nearly one and half years after the surgery and when he approached opposite party No.1, on taking x-ray, it was observed that nail and screws were broken. On the other hand, the OPs 1 to 3, apart from taking a plea that implements of reputed company make were used, and they have also taken up a specific stand that there is no possibility of breakage of the nails unless there is extraordinary pressure that must have been used against it. The specific case of the OPs 1 to 3 is that the complainant must have had a slip, which resulted in such high pressure of ultimate breakage of nail. In support of the contention of the OPs. 1 to 3, they have filed Ex.B2, case sheet, for the second surgery done on 11-6-2005. As seen from Ex.B2, at the time of preliminary examination, it is categorically mentioned "patient states history of slipping accidentally after which he experienced pain at thigh". The complainant disputed the genuineness of Ex.B2 case sheet as manipulated document and denied that he never made such a statement before the OPs. Except a bald contention, there is no cogent evidence placed on record by the complainant to prove that Ex.B2 is a manipulated document. A perusal of entire Ex.B2 case sheet, made it clear that it is not 13 a manipulated document and it is a genuine document, came into existence, during the day today affairs of OP1 hospital. In these circumstances, we do not find any reason to disbelieve the entry made in Ex.B2 case sheet that the complainant had accidental slip, which resulted in pain to him. As rightly contended by the counsel for OPs. 1 to 3 unless some high pressure was put on that portion, there was no possibility of nail already fixed being broken and the said contention was supported by the entry made in Ex.B2, case sheet that the complainant had accidental slip which resulted in pain to him. It is therefore evident that the breakage of the nail fixed occurred only due to improper or negligent usage of the injured leg by the complainant and in the absence of any positive evidence on the part of the complainant that the surgical implements admittedly used by the OPs. 1 to 3 are of sub standard quality and not of ISI certified cannot be accepted.
For all the aforesaid facts and circumstances, the complainant has failed to prove that there is deficiency in service on the part of the OPs 1 to 3 as contended by the complainant and we do not find any irregularity or illegality to interfere with the well reasoned order of the District Forum.
In the result the appeal is dismissed confirming the order of the District Forum. However, there shall be no order as to costs.
MEMBER.
MEMBER.
JM Dt.31-03-2015.
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