State Consumer Disputes Redressal Commission
Secretary, vs M.V. Leela, W/O Gopalan on 22 July, 2010
Daily Order
First Appeal No. A/08/281
(Arisen out of order dated 10/09/2008 in Case No. OP 10/03 of District Kozhikode)
Vadakara Co-operative Hospital
Vs.
M.V.Leela
BEFORE :
HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU
, PRESIDENT
PRESENT:
None for the Appellant
None for the Respondent
Dated the 22 July 2010
ORDER
Disposed as Dismissed KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 281/2008JUDGMENT DATED: 22-07-2010 PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. S. CHANDRA MOHAN NAIR : MEMBER APPELLANT Secretary, Vatakara Co-operative Hospital, Vatakara. (Rep. by Adv. Sri. V.G. Govindan Nair & others) Vs RESPONDENTS 1. M.V. Leela, W/o Gopalan, Meethalaveetil House, Purameri P.O., Vatakara (Via), Kozhikode. 2. Dr. Deepak, Vatakara Co-operative Hospital, Vatakara, Kozhikode, Now residing and working at B1/201,Gangotri, Sushal Complex, Seejoj, 19A, Nerul (E), Navi Mumbai - 4000706. (R1 rep. by Adv. Sri. Vazhuthacaud R. Narendran Nair & others) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellant is the first opposite party in OP No. 10/2003 in the file of CDRF, Kozhikode. The appellant as well as the second opposite party are under orders to pay a sum of Rs. 30,000/- to the complainant as compensation and Rs. 1,000/- towards costs.
2. It is the case of the complainant that on 18-06-2002 she went to the first opposite party hospital and consulted the second opposite party doctor for pain and swelling on the toe of her right leg. The doctor examined her and applied dressing on the big toe of the right leg. After returning home she had severe pain and swelling at the toe and on the next day she again went to the hospital and consulted the above doctor. She was admitted at the hospital and the doctor removed the toe nail without conducting the required tests etc. On 20-06-2002 her condition became worse. The doctor advised her that it appeared that the infection was spreading towards the knee and referred her to the Medical College Hospital, Kozhikode. On the same day she was admitted in the Medical College Hospital, Kozhikode wherein Dr. Lakshmi Narayanan, Head of the Department of Surgery treated her. On blood test it was found that she was having diabetes. She was given medicines to control diabetes and other antibiotics. She was an inpatient at Medical College Hospital, Kozhikode at 45 days. She has claimed a sum of Rs. 1,50,000/- as compensation from the opposite parties.
3. The second opposite party doctor should exparte.
4. The first opposite party hospital has filed version stating that the complainant consulted the second opposite party doctor on 17-06-2002 as an outpatient and that the doctor had advised her to get admitted on the same day. But she did not get admitted. Hence the doctor prescribed medicines and dressed the toenail and directed her to come again on 19-06-2002. But the complainant went to the hospital on 18-06-2002 itself because of severe pain. The second opposite party admitted the complainant in the hospital on 18-06-2002 and on the same day the toenail was removed under local anaesthesia after giving test dose. The necessary medicines were also prescribed. On 19-06-2002 it was found that there was pain and small swelling on the toe. It was found that the wound was healing. On 20-06-2002 the complainant complained of pain and swelling. The relatives of the complainant insisted for referring her to Medical College Hospital, Kozhikode. That was the reason for referring the complainant to the Medical College Hospital, Kozhikode. It is mentioned that the second opposite party has left the service of the first opposite party and is practicing elsewhere. The first opposite party has pleaded ignorance as to what has happened at the Medical College Hospital, Kozhikode.
5. Evidence adduced consisted of the testimony of PW1 to PW3 and RW1. Exts. A1 to A11 and B1 and B2 were marked.
6. The Forum has relied on the testimony of PW2 Dr. Lakshmi Narayanan of Medical College Hospital, Kozhikode who was stated that the complainant who was a diabetes patient should not have been subjected to the procedure under local anaesthesia without making her undergo the blood test. The Forum has relied on his statement that before every operation blood test is mandatory. It is the above lapse on the part of the second opposite party doctor that was found to be amounting to negligence.
7. It is the contention of the appellant that the complainant at the time was only 35 years old and that there was no indication that she was suffering from diabetes mellitus and further the doctor had only performed a minor procedure of removing the toenail under local anaesthesia. It is pointed out that it is admitted by the complainant herself that she was also not aware of the fact that she was suffering from diabetes. It is also pointed out that in the absence of expert evidence in the matter the doctor ought not have been held liable. The Counsel has also relied on the decisions reported in Jacob Mathew Vs. State of Punjab (2005 6 SCC 1); C.P. Sreekumar (Dr.) Vs. S. Ramanujam [(2009) 7 SCC 130)] and Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka [(2009) 6 SCC 1)].
8. PW1 is the complainant; PW2 Dr. Lakshmi Narayanan, the Head of the Department of Surgery of Medical College Hospital, Kozhikode and PW3 the Lab Technician who conducted the blood test on the direction of PW2. Ext.A1 is the follow up card issued from the first opposite party hospital wherein IP treatment from 18-06-2002 to 20-06-2002 is noted. The diagnosis is acute paronychia (R) big toe; cellulites and lymphanigitis. Toenail excision and discharge of pus under local anaesthesia on 08-06-2002 is also noted. It is also mentioned that antibiotics and analgesics have been prescribed. Cellulites is noted and hence the patient has been referred to Medical College Hospital, Kozhikode on request of bystanders. Ext.A6 is the reference card of the Medical College Hospital, Kozhikode. It is seen from therein that she was an impatient from 20-06-2002 to 02-08-2002. The diagnoses is ulcer dorsum of right foot. At the time of admission she was having oedema, swelling right foot, local rise of temperature. It is also noted as cellulites. She has been administered antibiotics. It is also seen that she underwent skin grafting and that the graft was taken from the thigh. Ext.A10 case sheet of the Medical College Hospital, Kozhikode would show that she has also undergone blood transfusion. Earlier blood and urine test and culture and sensitivity test was also conducted. She was regularly monitored for blood sugar level and medicines to control the sugar level was also given. PW2 the doctor at Medical College Hospital has stated that on the date of admission itself the complainant was subjected to blood and urine test. He has also admitted that in the case sheet of the Medical College Hospital, Kozhikode at page 3 itself mentioned as 'known diabetes'. He is stated that she was having 172 mg of sugar level vide Ext.A5 test report. The normal range is between 100-120 mg. He has stated that without taking precautions to control the blood sugar level if the patient is subjected to surgery there will be complications. He has also stated that every patient who is going to be subjected to surgery should be confirmed as to the vital statistics after conducting the necessary tests. He has also stated that diabetes can develop at any age but it usually develop after 40 years. Nothing has been brought out in the cross examination of PW2 to discredit his testimony.
9. RW1 is another doctor who is working in the first opposite party hospital. He has not treated the complainant. He has only proved Ext.B1 copy of the OP card and B2 case sheet. According to him, there was no negligence on the part of the second opposite party doctor and the necessary protocols were complied with.
10. We find that in Ext.B1 copy of the OP ticket dated 17th June 2002 itself it is noted as paronychia - injury toe nail - (R) big toe and cellulites right foot and the duration is mentioned as one week. Evidently cellulite is a serious manifestation of the infection. Abscess and tissue destruction usually follow if antibiotics are not taken (Mosby's Medical Dictionary) and that diabetes mellitus favour the development of cellulites (ibid). It can also be seen from Ext.B1 that after removal of toe nail under local anaesthesia also the patient was not subjected to any blood test. We find that the existence of cellulites as noted in Ext.B1 on 17-06-2002 itself should have put the doctor on guard. It is not noted in Ext.B1 that she is not a diabetes patient. Evidently, the settled protocol is that the required test should be conducted before subjecting the patient for surgery including the minor surgery involved herein. This is evidently a serious lapse on the part of the second opposite party. It has also to be noted that even after receiving notice on the Forum he has not cared to defend the case. The complainant had to undergo severe pain and suffering on account of the above lapse. She had to undergo split skin grafting as noted in the case sheet of the Medical College Hospital, Kozhikode and she was an inpatient at the Medical College Hospital, Kozhikode which is situated away from her place of residence for 45 days. We find that the ratio of the decisions relied on by the Counsel for the appellant as such has not been violated in the instance case.
11. The amount of compensation ordered to be paid is only reasonable, rather on the lower side ie, Rs. 30,000/-. We find that there is no illegality in the order of the Forum. Hence the same is sustained. The complainant would be entitled for interest at 12% on the amount of compensation ordered from the date of the order of the Forum ie, 10-09-2008. The direction to pay cost of Rs. 1,000/- is sustained. She will also be entitled for cost of Rs. 2,000/- with respect to the conducting of the appeal before this Commission. The amounts shall be paid to the complainant within three months from the date of receipt of this order failing which she shall be entitled for interest at 15% from today.
In the result, the appeal is dismissed.
The office will forward the LCR to the Forum along with a copy of this order urgently.
JUSTICE K.R. UDAYABHANU: PRESIDENT S. CHANDRA MOHAN NAIR: MEMBER Sr. [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT