State Consumer Disputes Redressal Commission
Dr.V. Thiagarajan,Director B.M. ... vs E.D. Rajan,No.5, Murugan ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Tmt.Vasugi Ramanan, M.A., B.L., MEMBER II F.A.678/2010 [Against order in C.C.277/2000 on the file of the DCDRF, Chennai (North)] DATED THIS THE 30th DAY OF DECEMBER 2011
1. Dr.V. Thiagarajan, | Director B.M. Hospital, | Appellants / 1 & 2 Opposite Parties 11-A & 37-A, Fifth Main Road, | Thillai Ganga Nagar, | Chennai 600 061. | |
2. Dr.Vasanthakumar, | Adithi Flats, | Flat No.3-B, 29, Balfour Road, Kilpauk, | Chennai 600 010. | Vs.
1. E.D. Rajan, | 1st Respondent / Complainant No.5, Murugan Street, | Puzhuthivakkam, HoH | Chennai 600 091. |
2. Branch Manager, | 2nd Respondent/3rd Opposite Party New India Assurance Company Ltd., | Branch Office Unit 710002, | Nungambakkam High Road, | Chennai 600 034. | The first respondent as complainant filed a complaint before the District Forum against the appellants/opposite parties praying for the direction to the opposite parties to refund Rs.8,900/- being the amount paid to the first and second opposite parties for the operation, to reimburse the amount of rs.13,083/- being the expenses incurred for his second operation at Malar Hospital, to reimburse cost of medicines Rs.6,852/-, conveyance amounting to Rs.5,000/-, to pay Rs.4,50,000/- towards compensation for mental agony and pain and to pay the costs. The District Forum partly allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.08.06.2010 in C.C.277/2000.
This appeal coming before us for hearing finally on 20.10.2011, upon hearing the arguments of the either counsel and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants / 1st & 2nd OPs :
M/s.Saravabhuman Associates, Advocate.
For the 1st Respondent/Complainant : Served Absent.
Counsel for 2nd Respondent/3rd OP. : M/s.M.B. Gopalan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The order of the District Forum in C.C.277/2000 on the file of the District Consumer Disputes Redressal Forum, Chennai [North], dated 08.06.2010, wherein, the first and second opposite parties have suffered some adverse order, is under challenge.
2. Facts absolutely unavoidable for the disposal of this appeal:-
The first respondent in this appeal, who is the complainant, had pain and swelling in the right of his abdomen, for which, he approached the first opposite partys hospital, who advised him to undergo surgery for hernia. Accordingly, surgery was performed on the same day, by the second opposite party, negligently, resulting right testis was shifted to higher level, loosing sensation. Thereafter, he was discharged on 30.09.1999.
3. In the operated region, pus coming out continuously, which was reported to the first opposite party on 1.10.99, which was explained, as if, that will be become alright in due course, failed to stop, resulting the complainant once again approached the first opposite party on 03.10.99, on which date, the first opposite party even failed to see the patient, thereby committed negligence, as well as deficiency in service, in giving post operative care.
4. On 07.10.99 as advised by the Staff, the complainant went to the first opposite partys hospital, on which date, he was examined by the second opposite party, who had prescribed certain medicines, which had no effect to stop the oozing, deteriorating the health, giving continuous problem of pain, compelling the complainant to go to Malar Hospital, for treatment on 17.10.99 and on subsequent dates where he was operated on 28.01.2000 to rectify the mistake committed by earlier operation on 27.9.99, even removing the right testis, which was atrophied due to negligent operation. From Malar Hospital, he was discharged on 31.1.2000. The removal of right side testical was occurred to the constriction of blood vessels, resulting death of cells, thereby compelling the Malar Hospital doctors, to remove the right side testicle, which had caused mental agony, psychological depression, even the complainant loosing an organ from his body, for which, the opposite parties are liable to pay compensation, including the medical expenses, as prayed, in Para 11 of the complaint.
5. After the Written Version filed by the first opposite party, informing that they have taken insurance, the third opposite party was impleaded subsequently.
6. The first opposite party, admitting the admission of the complainant in his hospital, adopting the Written Version filed by the second opposite party, resisted the claim, inter alia contending that as far as he is concerned, he being an Anesthetist, there is no allegation of negligence or deficiency in service against him and as such, the case is liable to be dismissed, that while performing the surgery, they have taken all precautionary steps and the known complication was also explained to the complainant and therefore, there is no question of returning the amount collected for service or paying any compensation, praying for the dismissal of the complaint.
7. The second opposite party in his lengthy Written Version, reproducing the definition for hernia and other medical treatments, from the Text as well as admitting the operation performed by him, opposed the case of the complainant as follows:-
8. The complainant was referred to the first opposite partys hospital by one Dr.Arasakumar, who had been operated upon in 1980 for right inguinal hernia, a known case of hypertension. Since it was an emergency case of Obstructed recurrent right inguinal hernia, he was slated for immediate surgery and after diagnosing, confirming it is a case of Recurrent Inguinal Hernia, without knowing or having what kind of surgery was performed in 1980 for hernia, explaining the complainant about the complication, obtaining consent, operation was taken, which revealed dense adhesions, the testis was found drawn up to the high scrotal position, which is indicated in the Case Sheet itself, which might have had happened, due to the previous hernia repair surgery conducted 18 years ago. The herniorraphy was carried out, the best extent possible though dense adhesions and the high riding testicle posed some problems. Thereafter, post operative care was given, diligently and at the request of the complainant, he was discharged on 30.9.99. When the complainant reported as expected, he was advised to continue the medicine. When the complainant returned with the same complaint, he was advised to get admitted for observation, which he refused and it came to the knowledge later that he had been to Malar Hospital for treatment. Thus, the complainant adopting his own course, unnecessarily tarnished the image of the opposite parties, giving wrong message to Junior Vikatan. The very fact that the second surgery was performed after the gap of 4 months, from the first surgery would indicate, it was not an emergency one, it had not happened due to alleged negligence, said to have been committed by the first and second opposite parties on 27.9.99 and if at all it should have happened due to known complication, for which, none of the opposite parties could be held responsible, the fact being, the occurrence of testicular atrophy is a known complication, and is definitely not the result of the negligence on the part of the surgeon.
The complainant is attempting to make out a profit, taking the misfortune, for which, doctors had no control.
In any event since insurance was taken by the first opposite party, covering this kind of risk, Insurance Companmy is a necessary party. The case requires elaborate enquiry, which is not possible under summary proceedings and therefore, the Consumer Forum has no jurisdiction. The other averments are denied as false, seeking a prayer to dismiss the case with costs.
9. Before the District Forum, 12 documents were filed on each side, supported by Proof Affidavits. The case being a medical negligence, generally an expert opinion or evidence is necessary, which is absent. It is also not the case of the complainant, the principles of Res Ipsa Loquitor is applicable and it is also not the findings of the District Forum, that principle can be extended. The complainant alone has been examined or cross examined as PW1, which was counteracted by the examination of the second opposite party, including cross examination.
Based upon the above documents, as well as the literatures relied on by the opposite parties, the District Forum drew the conclusion that the Consumer Forum has jurisdiction to try a case of this nature also, even assuming it is complicated by summary procedure, that even in the absence of expert evidence on the side of the complainant, the Discharge Summary given by Malar Hospital for the treatment taken by the complainant at later point of time, proved the negligence as well as deficiency on the part of the opposite parties. In this view, fixing deficiency, quantifying compensation at Rs.50,000/- and medical expenses at Rs.13,083/-, directed the opposite parties jointly and severally to pay a total sum of Rs.63,083/- with interest thereon at 9% per annum, from the date of complaint with costs of Rs.10,000/-, Though, such costs was not incurred by the complainant, that too, when the Act contemplates, this quantum of costs when a frivolous case is filed, which is not the finding, as per the order dated 8.6.2010, which is under challenge in this appeal, by the first and second opposite parties above.
10. The third opposite party being the Insurer, covering the risk of the first opposite party, has not preferred any appeal, since they cannot have independent defence, other than the defence taken by the first opposite party.
11. The first respondent/complainant, though prayed heavy amount, succeeded in getting a small amount, has not appealed for the negatived claim and in fact, he has also not come before this Commission, to support the findings of the District Forum and remained absent.
12. The learned counsel for the appellant would contend that the District Forum had committed patent error, in fixing negligence and deficiency upon the opposite parties, forgetting the initial burden of proof, for which, absolutely there is no evidence, that when the complainant himself has admitted that he has no grievance against the first opposite party, directing all the opposite parties, jointly and severally, is erroneous, that the District Forum failed and neglected to understand, what is recurring hernia, whether it is a known complication as occurred or failed to give a finding that the complication had occurred due to negligence operation or deficiency in service and in this view also, the order of the District Forum is liable to be upset. Elaborating the procedure adopted at the time of operation, drawing our attention to the literatures which deals hernia of the abdominal wall, as well as its recurring nature, made a sincere attempt to upset the finding of the District Forum, which is not challenged, that does not mean, we are bound to accept the argument, whereas, we are bound to go through the argument, supported by document, which we are doing here on merit.
13. The complainant had hernia problem elsewhere in 1980, for which, as admitted by him, though not pleaded in the complaint, surgery was performed in Government Stanley Hospital. The hernia is the inherent complication, namely recurring in nature. Therefore, it appears, he had some problem in 1999, for which, he had taken treatment with one Dr.Arasakumar, who referred the complainant, to the first opposite party though denied by the complainant, which is proved by Ex.B1, on 27.09.99.
At that time, the complainant had swelling and severe pain, warranting emergency surgery, therefore, he was admitted in the hospital of the first opposite party on 27.9.99, which is run by Dr.V.Thiagarajan, who is an Anesthetist, not a surgeon, whose wife is also a Doctor. The first opposite party took the service of the second opposite party, who is a qualified surgeon, not in dispute. The second opposite party as admitted by him, in his Written Version, which is also an admitted fact, performed surgery on the same day after adopting all the preliminary investigation, giving spinal anesthesia, which was performed by the first opposite party. At the time of the operation, there was no complication, as reported in the complaint though subsequent complication is alleged.
After successful operation and treatment, the complainant was discharged on 30.9.99, at his request, as evidenced by Ex.B4, which also picturise the nature of the treatment and procedure adopted by the second opposite party, before at the time of operation and post operatively. It is also specifically stated, that the patient wants to go home, next day and accordingly he was discharged on 30.9.99.
14. The complainant had problem, therefore, he rushed to the hospital on the very next day, some medicines were given, for which, prescription was also given, as admitted by the complainant, while cross examination, but not produced. But after 7.10.99, the complainant has not come to the first opposite partys hospital or the doctors. Thereafter, as pleaded by the complainant, he had been to Malar Hospital and he was operated there on 28.1.2000, discharged from the hospital on 30.1.2000, as disclosed by Ex.A6 and Ex.A9. Ex.A9 would disclose that the complainant had Sinus right inguinal hernia with atrophy right testis, for which, surgery was performed and right testical was removed. According to the complainant, because of the negligence operation conducted by the second opposite party on 27.9.99, Atrophy occurred, resulting removal of right testical, for which, opposite parties should be directed to pay compensation. Thus, the claim was lodged, ended in partial success, which is challenged.
15. Hernia is a bulging protrusion of an internal roop of bowel or abdominal contents through a weak opening in the wall, causing rupture of a portion of a structure. The subsequent problem of hernia after operation is generally called Recurrent Indirect Inguinal Hernia, which may occur as reported in Text, at any time from one month to 25 years. In this case, the complainant had hernia problem in 1980, operated, the same problem once again surfaced occurred in 1999, therefore, his problem comes within the meaning of Recurring Indirect Inguinal Hernia, which was properly diagnosed by the opposite parties, as seen from Ex.B4-Case Sheet, which says Recurrent Right Inguinal Hernia for which, surgery was performed.
16. It is the specific case of the complainant, that because of the second surgery performed by the second opposite party, right testical was shifted to higher level, then there was pus coming out continuously, which was not attended with diligence, post operatively. Except these two alleged negligence, nothing is specifically alleged, against the opposite parties, though there is a specific plea that the negligent operation performed by the opposite parties resulted an abnormality, causing death of tissues, due to lack of blood supply, consequentially causing Atrophy, which compelled the subsequent hospitalization, namely at Malar Hospital, where the complainant had taken treatment for the removal the right testical. Therefore, it is for the complainant, at the first instance, to prove or the initial burden is upon the complainant to prove, that because of the negligent surgery performed by the opposite parties, the right testical was shifted to higher level or blood supply was cut, resulting death of tissues on right testicals, consequentially compelling to remove the same, to save the life of the complainant. To prove the above aspects, certainly we require expert opinion either in the form of affidavit or in the form of oral evidence, which are all absent.
Therefore, it is not known, how the District Forum has come to the conclusion, that there was negligence on the part of the opposite parties even without properly reading the admissions given by PW1/complainant while he was cross examined by the opposite parties.
17. It is an accepted principle, irrespective of the abstract doctrine of burden of proof, if there are materials to prove the deficiency or negligence from the records produced by either parties, even in the absence of expert opinion, we can fix negligence, on the part of the surgeon, who performed the surgery. In this case, that is not available, to our understanding, after reading the entire documents. As rightly submitted by the learned counsel for the appellants recurring hernia is an accepted complication. This accepted complication should have occurred on its own, not by the negligent act committed by the opposite parties, therefore, for the later part, we require expert evidence, which is absent. Atleast the third surgery performed by the Malar Hospital should disclose, the previous surgery was performed negligently, resulting Atrophy on the right testical, which is also absent. The Literatures brought to our notice, make it abundantly clear, which we need not retype that it is a Recurring Hernia, which is the Certificate given by Malar Hospital as seen from Ex.B12, which reads This is to state that Mr.E.D.Rajan aged 48 yrs was admitted under my care in Malar Hospitals from 28.01.2000 to 31.01.2000 and underwent Surgery on 28.01.2000, for Testicular atrophy with Discharging Sinus, which is one of the possible complication following Herniorrhaphy Surgery. Neither in the Case Sheet maintained by the Malar Hospitals nor in the Certificate given by Malar Hospitals, dated 17.11.2000, they have informed or noted that the recurring inguinal hernia with atrophy had occurred to the right testical because of the negligent operation conducted previously in this case on 27.09.99.
In the Discharge Summary as seen from Ex.A9, under the heading History and Complaints, they have recorded, what the patient had stated, as if, pus discharging, right testis shifted to higher level since 4 months and it is not the record of Malar Hospital, physical examination or clinical examination revealed that right testis shifted to higher level, after the operation on 27.09.99. Therefore, as incorrectly observed by the District Forum, based upon Ex.A9, we cannot say that because of the previous operation, right testis shifted to higher level, and if at all, the complication should have arisen as pleaded in the Written Version, including the known complication as Certified by the Malar Hospitals, where the complainant had taken treatment, cured the problem, going there, against the advise given by the second opposite party for admission and that is why, the prescription also suppressed by the complainant, not producing before the District Forum, as admitted in the cross examination. Therefore, in our considered opinion, the Discharge Summary or the removal of right testis Ipso Facto will not prove the alleged medical negligence and we afraid to conclude, that the opposite parties had committed medical negligence. By going through the Case Sheet maintained by the first and second opposite parties also meticulously, which is not challenged, we feel, sincerely that the opposite parties would not have committed any medical negligence.
18. Ex.B4 discloses that the risk of damage to the right testical and vessels, explained to the patient, consent obtained, not under challenge.
At the time of the surgery, admittedly no Case Records pertaining to the previous surgery of the year 1980 was produced. Therefore, the second opposite party had no opportunity to know, how the hernia was repaired originally and what would be the position on the date of the surgery. In the Written Version, it is stated, after opening, they have noticed On account of the dense adhesions the testis was found drawn up to the high scrotal position, which is recorded in the operation notes also, which reads Because of the dense adhesions the testis was found drawn up to the high scrotal position, describing the further procedure adopted. There is no expert opinion, to dislodge this recording or the dense adhesion seen by the second opposite party, which may be the reason for higher elevating of the right testical. Further, it is incorrect on the part of the complainant to allege that because of the negligence surgery, his right testical was raised higher level, causing problem, without materials.
19. The scan taken before the surgery also would reveal, as urged by the learned counsel for the first and second opposite parties, there was no pus formation or oozing, as the case may and in the Malar Hospital Case Record also, they have not noted any external complication of pus, oozing etc., This being the position, though the complainant might have had the pain, his case of oozing continuously must be incorrect. If it is a case of emergency, arising out of negligence surgery, the complainant ought to have been operated, even on the first day when he went to Malar Hospital, which is not the case, whereas he was operated after 4 months because of the known complication, namely testical atrophy with discharging sinus for that, the second opposite party cannot be blamed unless it is positively established, that he had committed any negligence act at the time of performing the surgery on 27.09.99. By going through the case records also, we are unable to find out, anything wrong reading the same with also medical literature to our best understanding.
The District Forum without taking into account the known complication, and without any proof for negligence or deficiency in service, unfortunately slapped an order against the opposite parties, which requires to be upset.
20. The District Forum has directed all the opposite parties to pay the amount jointly and severally, when there is no iota of evidence against the first opposite party even assuming that there may be some negligence against the second opposite party [which is not so]. In the complaint, no allegations against the first opposite party or the hospital, except a casual sentence, as if the opposite parties have failed to give proper post operative care. PW1 was cross examined pertaining to the affidavit and he has candidly admitted, that Dr.Thiagarajan has not committed any mistake and in fact he has no grievance against Dr.Thiagarajan, further admitting, there is no negligence on the part of the B.M. Hospital also and the relevant portion in Tamil reads .
This being the admission of the complainant, coupled with no specific allegation against the first opposite party, we are unable to understand, how the District Forum has directed the first opposite party, to pay the amount as well as the Insurance Company which had given cover to the first opposite partys hospital.
21. It is the specific case of DW1/ the second opposite party, that he advised the complainant to got admitted himself for further observation, to assess the problem since Recurring Hernia is unavoidable. He has also deposed that he has made the entry, for admission in the prescription itself. PW1 admits, when he went to the second opposite party for review, he has noted in the prescription, not produced. Therefore, it is evident, wantonly that prescription was suppressed, which will disclose the diligent conduct of the second opposite party to rectify the Recurring Hernia, a known complication, which had occurred to the complainant.
But for the reasons best known to the complainant, he had chosen Malar Hospital, which cannot be faulted, but at the same time, the second opposite party had advised for further treatment, since ignored, the second opposite party also cannot be faulted, as if, he has failed to give proper post operative care.
22. As disclosed in the Literatures Hernias of the Abdominal Wall, Intraoperative Complications during hernia repair There is a direct relationship between the incidence of atrophic testicles and the number of previous repairs to which the patient has been exposes. In the same Text under the heading INJURY TO THE TESTICULAR BLOOD SUPPLY, it is observed This danger is increased significantly when recurrent hernias are repaired. In such situations, the position of the remaining spermatic cord is uncertain. If the spermatic cord had been transplanted and the cremaster previously removed, the difficulty of identifying the cord structures is sometimes enormous. Medically, Intraoperative Complications are not always avoidable and it is the duty of the doctor when reported to identify and rectify the same, which was attempted by second opposite party, requesting the complainant to got admitted in the hospital, for which, the complainant was not willing and therefore, while repairing hernia diligently, if any complication had arisen due to known recurrent hernia problems, we feel, the doctors cannot be held responsible as if, acted negligently, the further fact being, the recurrence and extent of atrophy, unpredictable in the early post operative days.
For the above said reasons, since we are of the opinion, the opposite parties have not committed any medical negligence, they are not liable to refund the amount or liable to pay any compensation and therefore, the appeal deserves acceptance, in order to upset the findings of District Forum.
23. In the result, the appeal is allowed, the order of the District Forum in CC.No.277/2000, dt.08.06.2010 is set aside, and the complaint is dismissed, directing the parties, to bear their respective costs throughout.
24. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/first and second opposite parties, duly discharged, since appellants succeeded, and there is no need to retain the FDR.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT