State Consumer Disputes Redressal Commission
M/S. Durgabai Deshmukh Hospital & ... vs 1.Aluru Narsimha Prasad, on 13 October, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
F.A.No.203/2019 against C.C.No.518/2011,
District Commission-II, Hyderabad.
Between :
M/s.Durgabai Deshmukh Hospital &
Research Centre,
Andhra Mahila Sabha, Vidya Nagar,
O.U. Road, Hyderabad - 500 044. .... Appellant/
Opposite party no.1
And
1.Aluru Narsimha Prasad, S/o.Venkata Subbaiah, Aged about 34 years, Occ: Weaver, R/o.6/75, Gangammagari Veedhi, Kotta Madhavaram (V) & (P), Vontimitta ( M), Kadapa District. ... Respondent/ Complainant
2. Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Post Box No.11, 3rd Floor, 302, Oasis Plaza, Tilak Road, Hyderabad - 500 001. .... Respondent/ Opposite party no.2 Counsel for the Appellant : M/s.D.Ravishankar Rao Counsel for the Respondents : Mr.R.Yogender Singh-R1 Mr.K.V.Rao-R2.
CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
FRIDAY, THE THIRTEENTH DAY OF OCTOBER, TW O THOUSAND TW ENTY THREE.
Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember (NJ)) ****
01). This appeal is filed u/s.15 of the Consumer Protection Act, 1986 by the opposite party no.1 being aggrieved by the orders passed by the District Consumer Commission-II, Hyderabad in C.C.No.518/2011 vide order dt.30.1.2019 wherein the District Commission had passed the following orders:
" In the result, we are allowing the complaint of the complainant in part directing the opposite party no.1:2
1. To pay the expenditure of Rs.1,78,069/- ( Rupees One Lakh Seventy Eight Thousand and Sixty Nine only) to complainant for undergoing subsequent operations as the 1 st operation conducted by them on 16.6.2009 was failed;
2. To pay Rs.75,000/- for causing mental agony;
3. To pay Rs.1,50,000/- for compensation for negligence in treating while conducting the surgery and deficiency of service upon their part; a) in total the opp.party no.1 shall pay an amount of Rs.4,03,069/- to the complainant.
4. The opp.party no.1 shall pay an amount of Rs.10,000/- towards costs of the complaint.
5. Time for compliance is 30 days from the date of receipt of this order; failing which the interest @ 12% p.a. shall accrued on Rs.1,78,069/- w.e.f. 2.11.2009 i.e. from the date of discharge on undergoing final surgery till its realization.
6. Rest of the claim of the complainant is dismissed.
7. The opp.party no.1 is at liberty to reimburse the awarded amount from the opp.party no.2 on due submission of its claim within 45 days from the date of payment made to the complainant, in accordance with the terms, warranties, conditions and exclusions of the policy and the same shall be indemnified by the opp.party no.2 within 45 days from the date of its submission."
02). For the sake of convenience, the parties are arrayed as complainant and opposite parties.
03). The case of the complainant is that on 12.6.2009 when he was attending domestic works at his friend's house he had a fall from ladder and had a fracture in his right thigh. Same day he had joined opposite party no.1 hospital by paying the required amount. But later when he wanted to get the treatment done under Aarogya Sree Scheme, on 13.6.2009 morning he was discharged and again admitted under Aarogya Sree Scheme. After diagnosis, the doctors at opposite party hospital have suggested for surgery and fixed the surgery on 16.6.2009. After the surgery, he was kept in ICU for two days and on 19.6.2009 at 10 p.m. he was asked to vacate the hospital to accommodate other patients, but since he was not a native of Hyderabad, he requested the hospital to permit him to stay for another night, as such, he was discharged on 20.6.2009 at 8 a.m. with an advise to review after one week. On 29.6.2009 he visited the hospital and sutures were removed, but later he expressed his difficulty in coming to Hyderabad again, as such he was advised to take help from local doctors at Kadapa after which he had attended Sri Sai Nursing Home at Kadapa and Dr. S.Subramanya Rao who was consulted on 5.7.2009, 4.8.2009 3 and 5.9.2009 had noticed that the operation has failed, after which the complainant again came to opposite party hospital on 15.9.2009. The opposite party hospital noticing that the surgery failed, they admitted him in the hospital on same day by collecting Rs.2000/- and conducted the surgery in the Varanda in between 5 p.m. to 6 p.m. and by 9 p.m. he was asked to leave . But however at his request they permitted him to leave on next day i.e. on 16.9.2009 and the second surgery was conducted as the screw has come out from the hole during the first surgery. Due to such negligent act of opposite party, he was forced to spend nearly Rs.5000/- for the second surgery. Again on 18.10.2009 when he visited Dr.Subramanyam he has declared that the operation has failed, as such he approached Dr.M.Srinivasulu, MS(Ortho) on 23.10.2009 who advised him for another surgery who again conducted surgery on 29.10.2009 at his clinic Sri Venkateshwara Ortho and Trauma Clinic, Kadapa and old rod was replaced with a new one. The measurement of 1st rod was 9 x 36 mm whereas, the new one was 38 x 11 mm. This surgery was performed due to non union of 'right femur with IL nail in situ'. After the surgery he never had any other complications and he is able to walk without help of a walker. Due to the negligent act of the opposite parties, he was forced to undergo surgeries twice by incurring expenditure for hospitalization as well as travelling and he had also incurred loss of income as he could not attend to his works; that apart his, family members depending on him also had to suffer. Due to such negligent act of the opposite party, he got issued legal notice on 1.4.2011 to which the opposite party replied on 5.5.2011 rebutting all the contentions and stating that the surgery was done as per the procedure. As the opposite party had been negligent, the complaint was filed seeking compensation.
04). The opposite party no.1 filed written version while admitting that the complainant approached their hospital and the surgery was conducted on 16.6.2009 and that he was discharged on 20.6.2009, but had opposed the complaint on the ground of maintainability stating that the opposite party hospital is run by a charitable organization i.e. Andhra Mahila Sabha Trust wherein the expenses are met by way of donations and the services are provided on minimum charges without having any profits and as 4 the present complainant was treated under Aarogya Sree Scheme, he had not paid any consideration to the hospital, as such he does not fall under the definition of 'Consumer' as defined under C.P.Act and that the hospital was established in the year 1965 and enjoys very good reputation and goodwill among the general public and it functions on no profit and no loss basis which render social service to the public at large with the help of well known and reputed doctors who are specialists in their fields.
The opposite party further opposed the complaint based on the facts stating that when the complainant came to their hospital, he had suffered a fracture of femur for which interlocking nailing was done as per the prescribed standards and the doctors used 9 x 36 nail as per the size of the modular canal. As the petitioner is likely to suffer fat embolism which can be fatal and the size of the nail is decided at the time of surgery depending upon the size of the canal and that the petitioner was discharged on 20.6.2009 when he was found to be in a satisfactory condition and was advised for a review on 29.6.2009 and on the said day his sutures were removed with an advise to visit after one month. But the complainant failed to come after one month. He only visited the opposite party hospital again on 15.9.2009. Upon seeing the condition of the patient dynamization was done and on 20.9.2009 he was discharged. Dynamization is a procedure prescribed to hasten healing of the fracture. Dynamization means removal of upper end screws to facilitate compression of fracture. If the fracture does not heal even after 6 months, a procedure called bone grafting is done. After Dynamization, the complainant was advised to come after one month, but the complainant failed to come after one month and had approached other doctors. The opposite party further expressed their unawareness with regard to the complainant visiting other doctors namely Dr.S.Subramanya Rao and Dr.M.Srinivasulu and also denied the fact that they had ever forced the complainant to vacate the hospital in the night so also denied that any wrong injections were given to the petitioner and also denied that the doctors were enjoying songs during the surgery. The opposite party further pleads that they are covered with the Oriental Insurance Company for error and omission vide policy no.431100/48/2009/01229 and the complainant had not 5 impleaded the said insurance company and prayed that the complaint be dismissed.
05). Before the District Commission, the complainant filed evidence affidavit and got marked Exs. A1 to A14. Mr.D.Ramu, Orthopedic Surgeon of opposite party no.1 filed evidence affidavit as RW.1 and got marked Exs.B1 to B5. Written submissions of opposite party no.1 filed. Opposite party no.2 filed written arguments and got marked Exs.B6 & B7.
The District Commission after hearing the arguments and perusing the material on record, allowed the complaint in part as stated supra in para no.1.
06). Aggrieved by the said order of the District Commission, the appellant/opposite party no.1 preferred this appeal with the following grounds:
that the District Commission ought to have dismissed the complaint as the same is not maintainable in law;
that the District Commission failed to consider that there is no material available on record to show that the appellant doctors acted negligently in performing the surgery;
That the District Commission failed to consider that the respondent/complainant/patient was treated with utmost care and was kept under the observation for 48 hours post surgery;
That the Commission below also failed to consider that the respondent/complainant did not approach the appellant/opposite party after one month as per the advise, but only came after a lapse of 4 months due to which the appellant/opposite party doctors could not assess the healing condition of the fracture; that the District Commission erred in concluding that nowhere either in Ex.A4 or in Ex.B5 the respondent/complainant was advised to visit after one month, whereas there is a specific mention in the Ex.A2 Discharge Summary as "Review after 6 one month", the said document was not considered by the District Commission; that the District Commission failed to consider that the femur fracture healing takes around 6 months and that there can be delay in union or non union and that the respondent/complainant had undergone two surgeries after one month of dynamization on his own without waiting for the healing period, as such the appellant cannot be found to be at fault for negligent acts of the respondent/complainant himself;
that the District Commission failed to consider that the respondent/complainant failed to adhere to the instructions given by the appellant doctors. The respondent/complainant had visited several local doctors, but there is no mention by the said doctors with regard to the operation performed by this appellant hospital. The observation by the District Commission that the nail measurement of 9x36 mm fixed during the course of operation by the appellant/opposite party no.1 instead of 38 x 11 mm might have caused sufferings to the respondent/complainant is totally incorrect and based on assumptions and presumptions without being supported by any medical literature.
Based on the above grounds, prayed that the appeal be allowed and the order of the District Commission be set aside.
07). The main grievance of the respondent/complainant is that when he had a fracture to his femur bone due to a fall at his friend's residence, he visited appellant/opposite party hospital wherein he was admitted under Argoyasri Scheme on 13.6.2009 and a surgery was performed on 16.6.2009 and he was discharged on 20.6.2009 and on 29.6.2009 his sutures were removed and as he was a resident of Kadapa, he could not come back to Hyderabad again, so he was advised to visit any local doctor at his place. As such, he went to Dr.Subramanya Rao on 5.7.2009, 4.8.2009 & 5.9.2009 and the said doctor had informed that the 7 surgery performed by appellant/opposite party no.1 failed and advised to undergo dynamization. Therefore, the respondent/ complainant again came back to appellant/opposite party hospital on 15.9.2009 who also realized the need for dynamization and perofrmed the same on the same day and discharged him on 16.9.2009; that even after dynamization done, as he experienced pain and imbalance in his right thigh he again consulted Sri Venkateswara Hospital wherein the doctor after examining, diagnosed that the respondent/complainant suffered 'non union of #right femur with IL nail in situ' and advised for another surgery to rectify the same; that as the appellant/opposite party doctor had performed the first surgery negligently, the respondent/ complainant had to undergo dynamization and also one more surgery which has resulted in both financial loss, physical pain and mental agony and also loss of income, as he could not attend to his duties.
08). The performance of surgery on 16.6.2009 by appellant/ opposite party, similarly dynamizaton done by appellant/opposite party on 15.9.2009 are the undisputed facts. The appellant/opposite party had taken a preliminary objection that the complaint is not maintainable, since the respondent/complainant has not paid any consideration to the appellant/opposite party no.1` as the treatment was done under Aarogya sree Scheme, as such the respondent/complainant does not fall under the category of Consumer.
Sec. 2 (1)( d) the Consumer Protection Act ,1986 defines Consumer as under :
"Consumer" means any person who-
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of ) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person(but does not include a person who avails of such services for any commercial purpose).
8In view of the said definition the respondent/complainant falls under the category of a beneficiary i.e. the Government will make the payments to the appellant/opposite party hospital on behalf of the respondent/complainant. As such, the argument of the appellant/opposite party counsel that no consideration is paid is not correct. Therefore as a beneficiary the complainant is a competent person to file a complaint as he has availed the services provided by the appellant/opposite party and the consideration is paid by the Government. Hence, we are of the emphatic view that the respondent/complainant is a Consumer and the complaint is maintainable.
09). Now coming to the merits of the case, the appellant/opposite party had opposed the complaint on the ground that the procedure followed by it in treating the respondent/complainant was as per the standard procedure and for the fracture suffered by the respondent/complainant, interlocking nailing was done as per the prescribed standards and the size of the nail is decided at the time of surgery depending upon the size of canal and for the respondent/complainant the doctors used 9 x 36 nail which was best suitable for him and that the surgery was perfectly done but he himself did not come for a review after one month and only came on 15.9.2009 i.e. after 3 months and after examining, the doctors have done dynamization and that dynamization is a procedure to hasten the healing of the fracture. Dynamization means removal of upper end screws to facilitate compression of fracture. If the fractur does not heal well even after 6 months, the procedure called bone grafting is done. The healing time for the fracture suffered by the respondent/complainant may take upto 6 months and the union can be delayed or no union. Infact the respondent/complainant himself did not choose to come for the review but had visited different hospitals without waiting for the healing time.
The respondent/complainant had filed Ex.A8 to prove that he had visited Dr.Subramanya Rao on 5.7.2009, 4.8.2009 and 5.9.2009, but surprisingly the said Ex.A8 does not disclose any problem or pain suffered by the respondent/complainant, except advise for dynamization. Ex.A9 filed by the respondent/ complainant reveals that he was diagnosed for 'non union of # 9 right femur with IL nail in situ' and had undergone a surgery for closed exchange IL nail fixation 38 x 11 mm dynamic locking under SA on 29.10.2009. It is to be noted here that, it is the specific case of the respondent/complainant that due to the failure of the surgery performed by the appellant/opposite party no.1 he had to undergo suffering and pain and had to undergo another surgery. He is not finding fault with the treatment, which implies that the surgery done on respondent/complainant was in accordance with the line of treatment that is adopted for the treatment of fracture suffered by the respondent/complainant.
Hence, the respondent/complainant has to prove that there were certain lapses in the performance of the surgery, though the respondent/complainant filed Exs.A8 & A9 but failed to support the said documents with the affidavits who have treated him subsequently nor an expert opinion is filed to prove that the surgery was wrongly conducted, nor any medical literature is filed to substantiate that CRIF surgery can be healed completely within a specific period. The fact that the respondent/complainant did not have any complications for 3 months itself is sufficient to conclude that the surgery was rightly performed. Any ailment or surgery will take time to heal and it is the specific contention of the appellant/opposite party that the respondent/complainant had not waited for the healing period of 3 to 6 months. In Dr.Harish Kumar Khurana vs. Joginder Singh and others, the Hon'ble Supreme Court relying on several earlier judgments had held that "in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res- ipsa loquitur could be made applicable and not based on perception". Now a question arises that Exs.A8 & A9 are glaring evidence to prove that a second surgery was performed. Merely because a second surgery was performed, it cannot be concluded that first surgery was a failure. Any doctor cannot give 100% success rate for any surgery, since every patient may respond differently to the medication depending on his health condition.
10The District Forum relied on the observations made on Ex.A9 wherein it has been noted as follows:
PRINCIPAL DIAGNOSIS:
Non union # right femur with IL nail in situ OPERATIVE PROCEDURE:
Closed exchange IL nail fixation 38 x 11 mm, dynamic locking under SA.
What is manifest from above notings is that due to non union of right femur, there was a need to perform another surgery. At the cost of repetition we once again make it clear that, just because the fracture is not healed, the doctors cannot be blamed and conclude that the surgery had failed; that apart the respondent/ complainant failed to examine the doctor who is the author of Ex.A8. The District Forum relied on Ex.A8 and had concluded that the nail fixation done by appellant/opposite party is of 9 x 36 mm where as the nail fixation done under Ex.A9 is of 38 x 11 mm. and this might be the cause of suffering caused to the respondent/complainant. Without there being any Expert Opinion, only based on presumptions, the District Commission had passed the orders. Neither the District Commission or this Commission is medical expert to ascertain the size of nail fixation. It is for the expert to decide.
10). Further we feel that the respondent/complainant failed to prove that the surgery was wrongly performed by the appellant/ opposite party and the respondent/complainant himself was at fault in not going for a review after one month of surgery, whereby the appellant/opposite party had lost their opportunity to examine the healing process. It is an admitted fact that after 29.6.2009 the respondent/complainant visited the appellant/opposite party hospital only after 3 months i.e. on 5.9.2009. Therefore, for his fault, the appellant/opposite party cannot be made liable. That apart, the respondent/complainant had failed to prove with evidence i.e. sufficient expert opinion or medical literature that the surgery performed by the appellant/opposite party doctors was a failure.
In view of the above discussion we are of the considered view that the District Forum erred in holding that the appellant/opposite party is laible for negligence based on 11 assumptions and presumptions. Therefore, the order of the District Forum is liable to be set aside by allowing the appeal.
11). In the result, appeal is allowed by setting aside the order of the District Commission-II, Hyderabad passed in C.C.No.518/2011, dt.30.1.2019. The appellant is at liberty to withdraw the statutory amount deposited if any, after the expiry of the appeal time.
Sd/- Sd/-
MEMBER(J) MEMBER(NJ)
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Dated: 13.10.2023