State Consumer Disputes Redressal Commission
Mr.K.Thirunavukkarasu vs International Centre For Cardio ... on 14 January, 2015
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE HONBLE THIRU JUSTICE R. REGUPATHI PRESIDENT THIRU.A.K.ANNAMALAI JUDICIAL MEMBER
TMT.
P. BAKIYAVATHI MEMBER C.C.NO. 47/2008 DATED THIS THE 14th DAY OF JANUARY 2015 Date of Complaint : 19.8.2008 Date or Order :
14.1.2015 Mr.K.Thirunavukkarasu Son of Kumarasamy No.35, Vaidhyanathan street Shenoy nagar Chennai 600 030 ..complainant Vs M/s International Centre for Cardio Theoratic and vascular disease hospital (A unit of Frontier Life Line Pvt. Ltd) Represented by its Director Dr.K.M.Cherian R-30-C, Ambathur Industrial Estate Road, Chennai 600 101 Dr. K.M.Cherian Dr.N.Madhu Sankar Dr.K.Satya Sridhar Dr. Sanjay Theodore Dr. Ganapathy Subramaniam- Staff Surgeon ..All having their office at No.R.30 C Ambathur Industrial Estate Road Chennai 600 101 ..opp.parties Counsel for complainant : M/s G.Ilamurugu Counsel for Opp.parties 1 to 3 & 6 : M/s K. Apparnadevi Opp.parties 4 & 5 : Exparte THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER The complaint filed under Section17 of the Consumer Protection Act, 1986 alleging negligence and deficiency of service regarding treatment given to him by the opposite parties claiming direction for payment of Rs.3,50,000/- towards medical expenses and Rs.15,000/- for other expenses, Rs.20,00,000/- (Rupees Twenty lakhs only) for mental agony and physical strain and Rs.10,00,000/- for compensation for permanent disability and for cost.
2. The gist of the complaint in brief as follows:
The complainant is a Retired Government servant due to his age, he had some uneasiness in his chest and feeling uncomfortable and as suggested by the Apollo hospital for Angiogram undergone coronary Angiogram at the Apollo hospital, Chennai on 13.2.2006 and he had contacted the 1st opposite party in order to get the 2nd opinion since the Apollo hospital reported symptom of Coronary Artery disease class III Angina Triple Vessel disease and in the 1st opposite partys hospital also Dr. P.P.Mohammed Mustafa suggested for bye pass surgery accordingly by paying Rs.1,40,000/- got admitted in the 1st opposite partys hospital on 22.2.2006 where the 2nd to 6th opposite parties conducted the by-pass surgery on 23.2.2006. On 4.3.2006, he was discharged from the hospital after removing the drain tube and on the same day at about 8.00 p.m approximately the blood discharged from the wound and with the help of nearby doctor, it was dressed once again and on the next day, when the 1st opposite party hospital was contacted the O.P.D Surgeon examined and informed that the sutured part on (chest) Stermotomy wire came out and advised the complainant to be readmitted in the hospital on 6.3.2006 and after payment of an amount the 2nd surgery was done on 7.3.2006 and the doctors removed the damaged sternal wires and rewired and tighten it. The complainant was under
treatment in the 1st opposite party hospital upto 22.3.2006. After discharge, the complainant had periodical check-up once in three months upto 22.11.2007 and whenever he complained about the hearing of unusual sound from his chest, the doctor replied sound would be stopped after the bone settled properly. On 22.11.2007, when the same complaint was made and having the feeling of bone moving forward and downward below the chest due to pain he is unable to sit, stand and move more than hour and unable to lift more than 2kgs of weight and he has pain killer and after taking chest x-ray informed that the bone have not settled properly. In spite of two surgeries done and no possibility of doing for 3rd surgery due to his age and he was advised whenever feel pain to take pain killer even for two years coming for periodical check-up, the opposite parties did not informed the fact of improper alignment of chest bone and sutures and this fact was not brought to the notice of the patient. Since at the time of 1st surgery, the drain tube removal caused stagnation of blood in the stomach and the sutures came out of the sutured portion, hence the dressed cloth wetted completely, due to stagnation of blood in the sutured wire which came out of the sternal, caused the necessity to undergo for the second surgery was done on 7.3.2008 and due to non-joining of bone properly, the complainant having sensation of oscillation of chest bone and downward trust below the chest due to pain he is unable to sit, stand and move more than hour and unable to lift more than 2kgs of weight. While doing 2nd surgery they should have taken precautionary measures and to see the alignment had been done properly while rewiring, closing the chest and sutured due to negligence and deficiency of service, carelessness, the alignment had not been done properly so that the bone had not been joined which caused physical and mental agony to the complainant, hence after giving legal notice on 24.3.2008 consumer complaint came to be filed praying reliefs as above.
3. In the course of enquiry, even though notices were served by publication for the appearance of 4th and 5th opposite parties, they did not turn up and they were made to set exparte on 19.9.2014.
4. The opposite parties 1 to 3 filed a written version adopted by 6th opposite party denied the allegations of the complainant in their written version by stating as follows:
The complainant had undergone Coronary Angiogram in Apollo hospital was having symptoms due to several blocks in blood vessel having symptom of Coronary Artery disease class III Angina Triple Vessel disease and the complainant advised by their Cardiologist for by-pass surgery, it was done and his post operative recovery was good and he was admitted on 22.2.2006 and he underwent surgery (By-pass x four grafts, LIMA LIDA, SVD-D1, OMI Distal on 23.2.2006 and was discharged on 4.3.2006 without any eventful and he came back with mild oozing from chest wound affecting the lower part of the chest wound was on 6.3.2006 it was cleaned under anesthesia. The lower three wires were tightened the sternum could not be fixed with wire because the bone was not suitable for re-suturing. Subsequently on 14.3.2006, the wound was closed in single layer with tension sutures and the wound healed well. There was no discharge from the wound and fever and the discharge was subjected to micro biological test from 8.3.2006 to 21.3.2006, did not reveal any significant growth of micro organism excluding serious infection entire chest and inflammation. The healing of the chest wound is a biological phenomena and varies from patient to patient. No infection was noticed, the same was confirmed by the tests carried out to rule out any significant growth of micro organism and the wound healing which is a biological process which will differ from person to person and it was fibrous union, which means that some movement is bound to occur and fixing this will involve major surgery. On considering his age, it will not be able to do any further repair, the bones for fragmented and brittle and due to by-pass surgery with three vessels, he would not have been in a position to go for another major surgery, there was no blood in the stomach as claimed by the patient and the 2nd procedure is a minor one and as the patient should not suffer any pain anesthesia was given, he never reported during the periodical reviews regarding the sensation of oscillation of chest bone. The reply to the legal notice had been sent to the counsel of the opposite party on 17.4.2008. All precautionary measures were employed there is not even a single element and negligence and deficiency in service in giving treatment to the complainant and was given proper advise at proper times. The complainant has got no cause of action for maintaining the case against the opposite parties. The opposite parties institution is continuously maintaining high standards equal to any Cardio Thoracic surgery hospitals of the world. They take utmost care in the management of post-operative wounds, the same is proved adequately by their clientele which includes patients from various countries. They undertake almost 1200 open heart surgeries in a year and the infection rate is much lower than in any other hospitals in India. The complainant has put in a complaint with a view to malign the internationally famous Institution like Frontier Lifeline. The complainant given a fictitious and frivolous complaint and thereby the complaint is to be dismissed, since the report received from Madras Medical Mission filed by the complainant also revealed no evidence of infection.
5. Both sides have filed their proof affidavits and on the side of complainant documents Ex.A1 t A.18 were marked. No documents were filed on the side of opposite parties.
6. Points for consideration are as follows:-
1) Whether there was negligence and deficiency in service by opposite parties while giving treatment regarding the surgery undergone by the complainant for not properly taking care of post operative care while closing the sternum by way of suturing and other process which alleged with cost alleged trouble in the chest and other complication to the complainant?
2).
Whether the complainant is entitled for the claim of Rs.3,50,000/- towards medical expenses and other Rs.50,000/- towards transport and other charges?
3) Whether the complainant is entitled for the compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs) for mental agony and physical strain and Rs,10,00,000/- for compensation for mental disability?
4) To what relief the complainant is entitled to ?
7. Point No 1:-
In this complaint enquiry, the complainant having undergone by-pass surgery in the 1st opposite partys hospital for the Artery disease class III Angina Triple Vessel disease in four grafts on 23.2.2006 and was in the hospital till 4.3.2006 as per the complaint and discharge summary under Ex.A.1 and subsequently the complainant got re-admitted for alleged 2nd surgery on 6.3.2006 and got operated on 7.3.2006 and he was in the hospital till 22.3.2006 in which the complainant alleged that even after by-pass surgery undergone as per Ex.A.1 after discharge on 4.3.2006, the very next day, he had wet dressing due to bleeding from the sternum suture and he was redressed by nearby doctor and he got admitted for same in the 1st opposite partys hospital on 6.3.2006 and thereby alleged deficiency in service regarding the post-operative treatment under Ex.A.10, the Advocates legal notice given to the opposite parties stated as follows:-
In this connection my client would like to bring the following facts:
1. In the first surgery the dry tube fixed in the sternal had been removed before entire blood oozing stopped from the operated portion. Before stoppage of blood, the dry tube had been removed, it caused stagnation of blood in the stomach and the suture came out of the wounded portion hence the dressed cloth wetted completely. Due to stagnation of blood in the sutured wire which came out of the sternal. Hence the necessary for the second surgery arose.
2. The second surgery was done on 7.3.2006 when the surgery was done, the alignment of the chest bone had not been done properly and rewired. Hence the bone has not joined even after lapse of 2 years. Due to none joining of bones properly my client is having the sensation of osilation of chest bone and downward trust below the chest. it causes much pain in my clients chest, and lower portion of the chest and he is unable to sit, stand and move more than hour and unable to lift more than 2 kgs of weight.
3. The surgeon knew that more than two surgeries could not be possible. While doing the second surgery they should have taken precautionary measure and ought to have seen whether the alignment had been done properly while rewiring closing the chest and sutured. Due to negligence of service.
8. According to this, he had suffered pain in chest and lower portion of the chest unable to sit, stand and move more than hour and unable to lift more than 2kgs of weight. As for as the contention of the complainant, opposite parties 1 to 3 have not denied regarding the 2nd surgery except to state that it was not a surgery, but the procedure followed by giving anesthesia for the purpose to set right the loosened sternum sutures wires and tightening of wires with new one and thereby it is not at all the surgery and only the procedure followed to set right the defective sutures whether these would amounts deficiency in service, is the point to be considered. The complainant was discharged on 4.3.2006 and immediately got admitted on 6.3.2006, due to the complications in the sternum sutures and for the same, he was in the hospital upto 22.3.2006 and on perusal of the 2nd discharge summary under Ex.A.2. We find that the date of admission was made on 6.3.2006 and the date of operation is mentioned as 7.3.2006 /14.3.2006 and date of discharge on 22.3.2006 and with the procedure done, it is mentioned as sternal wire tightening debridement and regarding the history, it is mentioned as with the history of wound are as follows:-
Brief History: 63 year old male, euglycemic, normotensive, dyslipidemic a known case of coronary artery disease. S/P CABG X 4 grafts (23.2.2006). admitted with history of wound dehiscence lower part of the sternotomy wound. No history of pus discharge/fever. Local examination showed lower part of the chest wound dehiscent. Lower two sternal wire seen lying loose in the wound. He is now admitted for further evaluation and culture and sensivity tests were carried and as per the report, no growth in any media after 72 hours of incubation and further the same report in Ex.A.2 Course in the Hospital, it is mentioned as follows:-
The patient initially underwent sternal wire removal, wound debridement and wound irrigation. Subsequently when his cultures were negative, further debridement was done and the wound was closed in a single layer with tension sutures, the wound is healing well. There was no discharge from the wound or fever. Sutures are to be removed in the OPD at review on 28.3.2006.
Further from this details, the complainant alleged due to this condition, infection was occurred and the test report for sensitivity would reveal the same as per Ex.A.17 and Ex.A.18. But the learned counsel for the opposite party contended very Scanty growth of Gram Positive COCCI in pairs and clusters probably staphylococcus species to be identified grown from Thioglycollate media alone after 72 hours of incubation and this would not cause infection and only the complainant having psychological fear of alleging movements of bone and chest and hearing sound inside the chest which were not disclosed at the time of reviews and thereby, there was no deficiency in service in post-operative treatment and in this case for said occurrences in such case of by-pass surgery it would occur in some cases which is not abnormal whereas the complainant contended even after two years he was not diction about the nature of problem and post operative treatment complications and depending upon the document under Ex.A.9 given by the other hospital in Madras Medical Mission as Doctors prescription he alleged deficiency against the opposite parties under Ex.A.9, it is stated as follows:-
O/E Ununitedly sternum A/W There was no evidence of infection. There is no need for any surgical intervention now.
However, if the pain persists and the patient is keen for surgical fixation, sternal rewiring may be considered. If so he will require a detailed evaluation including C Angio before the surgery.
From this prescription, though there is no negligence or deficiency in service alleged against previous surgery done, the complainant alleging complaint for more than two years and there was no evidence of infection and no need for any further surgical intervention and if the pain persistence and the complainant may be considered once again with detailed evaluation (Angio before surgery. Hence this certificate was given on 12.3.2008, the complainant was undergone the 2nd surgery only as procedure as mentioned as alleged opposite party on 7.3.2006 nearly two years before that certificate issued by Madras Medical Mission seems to have been suffering with complication in his chest due to non-joining or properly setting of bones after the bye-pass surgery in which the sternum bones are sutured and tightened with steel wires and subsequently in the 2nd procedure, some of them were tightened, some of them were removed due to loosening of the wires after 1st surgery and further suture due to age factor of 64 years, at the time of surgery, he cannot go for 3rd surgery. The learned counsel for the opposite parties relied upon the following rulings reported in 2009 (4) Supreme Court Cases 705
e). Medical practice and practitioners Medical negligence - prosecution of medical practitioners - Reitrated, indiscriminate prosecution of medical professionals for criminal medical negligence is counterproductive and does no service or good to society Criminal Procedure Code 1973 Ss 70 and 201-204 Penal code 1860, S. (304-A)
f) Tort Law Negligence Medical negligence - Liability on doctors - when can be fastened Reitrated, unless negligence of doctor is established, primary liability cannot be fastened on him Medical practice and practitioners Medical negligence.
2009(7) Supreme Court cases 330
c) Consumer Protection Medical services medical negligence Casual connection between breach of duty and injury suffered proximity of cause Held, injury suffered must be sufficiently proximate to medical practitioners breach of duty on facts held, transfusion of blood of wrong blood group was the proximate cause of patients death and not the burn injuries which she had suffered before wrong transfusion Medical practice and practitioners Medical negligence Tort Law causation proximate cause.
e) Tort Law Negligence professional negligence standard to be applied to determine whether there was negligence Held the standard is of ordinary person exercising skill in that profession Highest expertise not expected Medical practice and practitioners Professional negligence.
2014(5) Supreme Court Cases Consumer Protection Act 1986 section 12 Medical negligence - Doctor well qualified with good academic credentials conduct not below normal standard of a reasonably competent practitioner in his field complainant stable after angiography Travelled to Delhi National Commission rightly holding that State Commission erred in applying Res ipsa loquitur No infirmity in impugned judgment.
9. Whereas the learned counsel for complainant relying upon the following rulings in O.P.59 of 2000, National Consumer Disputes Redressal Commission, New Delhi dated 4.1.2010, S.N.Verma (Husband of late Smt.Sunita Verma) and others Versus Indraprastha Apollo Hospitals & another, New Delhi in which it is held are as follows:-
Consent that is given by a person after receipt of the following information : the expected outcome and the likelihood of success: the risks; the alternatives to the procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.
The consent form was neither signed by the patient or her guardian. It is clear from this case that no valid or informed consent was taken from the patient before she was subjected to TMT, which involves serious risk. Therefore, it is a clear case of medical negligence.
2009(9) Supreme Court Cases 221 are as follows:-
Patients death, held was caused due to cumulative effect of giving treatment contrary to establish medical treatment protocols Case remitted to National Commission for assessment of compensation costs also imposed on defaulting hospital and the doctor who first treated patient, keeping in view their conduct and stand taken by them Medical practice and practitioners Supreme Court Rules 1966, Or. 41 R.1 Tort Law Practice and procedure costs Exemplary costs.
10. From these ruling from either side, though the opposite parties alleged that proper care was taken in giving treatment and procedures followed and as for as the post operative care is consented in view of the records relied upon by the complainant under Ex.A.2 to A.4 and A.9 and also as per the documents under Ex.A.9 because of post-operative care not properly given relating to the sutures in sternum (chest bone) the complainant was made to suffer with pain and consequential sufferings and eventhough the subsequent surgery and alleged procedure with anesthesia was made to set right the loosened sutures which made the unhealed wounds in chest creating psychological fear to the complainant leading to pain and sufferings even after two years and thereby the 2nd opinion obtained from Madras Medical Mission advised for the surgery, if necessary the complainant intended to take by following all the preliminary procedure for undergoing Angio evolution etc., and thereby we are of the view, there is negligence and deficiency in giving post operative care while closing the sternum by way of suturing and other process which caused alleged trouble in the chest and other complications to the complainant, for which the complainant is entitled for compensation and accordingly this point is answered.
11. Point No.2 :-
In view of the findings in point No.1 in favour of the complainant is entitled for certain compensation for the deficiency and negligence on the part of the opposite parties 1 to 3 in post operative care and the complainant claimed Rs.3,50,000/- towards medical expenses and Rs. 50,000/- towards transport charges and even as per legal notice under Ex.A.10, the complainant said to have paid Rs.1,40,000/- as package for the by-pass surgery to the 1st opposite party in which eventhough there was no deficiency in service relating to the by-pass surgery done and only in the post-operative care only unexpected negligence caused and on perusal of the medical bills under Ex.A.8, these bills are related to the main surgery to the complainant and certain sensitivity and culture tests were done on 22.3.2006 i.e., post operative period for which he has spent Rs. 33,435/- as per the bill dated 22.3.2006 and other bills are related to earlier treatment and since the complainant at on take 2nd opinion or for further treatment as per Ex.A.9 from Madras Medical Mission, he was forced to spend some amount and thereby considering the earliest expenses met out for the by-pass surgery and subsequent events, we are of the view an award Rs. 2,00,000/- by taking in to the consideration of payment of Rs.1,40,000/- as package to be given would meet both the ends and accordingly this point is answered.
12. Point No.3 In view of the findings in point No. 1 and 2 and the present physical condition of the complainant is hale and healthy and good, being the person conducting the case in person, we are able to see his briskness and also by considering his age for more than 60, at the time of complaint and there may not be any justification for claiming Rs. 20,00,000/- as compensation for the physical strain is concerned as we have already discussed in point No.2, we are of the view that there is no need for any separate compensation in this regard except for the cost and thereby we are inclined to award Rs.10,000/- towards cost.
13.Point No.4 In view of the findings in points 1 to 3, the complainant is entitled for compensation of Rs.2,00,000/- towards negligence and deficiency in service for giving post treatment and for the surgery done to him and due to which sufferings are caused and also a sum of Rs.10,000/- as cost. Accordingly, In the result, the complaint is allowed in part and the opposite parties 1 to 6 jointly and severally are directed to pay a sum of Rs.2,00,000/- as compensation to the complainant for the negligence and deficiency in service and for mental agony caused to the complainant in performing surgery and post-operative treatment after the by-pass surgery done and also to pay the sum of Rs.10,000/- as cost.
The directions of shall be complied within six weeks from the date of this order.
P.BAKIYAVATHI A.K.ANNAMALAI R.REGUPATHI MEMBER JUDICIAL MEMBER PRESIDENT ANNEXURE LIST OF DOCUMENTS FILED BY THE COMPLAINANT :
Ex.A1 23.2.2006 copy of Discharge summary sheet for the 1st surgery Ex.A.2 7.3.2006 copy of Discharge summary sheet for 2nd surgery Ex.A.3 7.6.2006 copy of Follow up case record Ex.A.4 29.9.2006 copy of Follow up case records Ex.A.5 12.2.2007 copy of Follow up case records Ex.A.6 29.6.2007 copy of Follow up case record and Laboratory report Ex.A.7 22.11.2007 copy of Follow up case record Ex.A.8
-- copy of Medical bills Ex.A.9
-- copy of 2nd opinion got from other hospital Ex.A.10 24.3.2008 copy of legal notice Ex.A.11
-- copy of Acknowledgement cards and return covers Ex.A.12 4.3.2006 copy of the Culture & Sensitivity Requisition & test reports issued by the 1st opposite party Ex.A.13 -- copy of the daily case sheet Ex.A.14 -- copy of the daily drug sheet Ex.A.15 -- copy of the medical bills Ex.A.16 -- copy of statement of expenses incurred by the complainant Ex.A.17 6.3.2006 copy of bill for taking sensitivity test Ex.A.18 26.2.2010 copy of test reports produced by the opp.parties Opposite parties side documents : Nil P.BAKIYAVATHI A.K.ANNAMALAI R.REGUPATHI MEMBER JUDICIAL MEMBER PRESIDENT