National Consumer Disputes Redressal
R. Mujibur Rahman vs Dr. S. Ramkumar on 19 April, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 42 OF 2011 (Against the Order dated 17/08/2010 in Appeal No. 225/2006 of the State Commission Tamil Nadu) 1. R. MUJIBUR RAHMAN Zasmin Rice Mill, Kallar Stree, Chitharevu (P.O.), Ayyampalayam (Via) DINDIGUL TAMIL NADU ...........Petitioner(s) Versus 1. DR. S. RAMKUMAR Mani Hospital, 3-1-54A, Chumum Road, Palanichettipatty THENI - 625531 TAMIL NADU ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONER : MR. RANGARAJAN R., PROXY COUNSEL FOR
MR. K.S. MAHADEVAN, ADVOCATE FOR THE RESPONDENT : FOR RESPONDENT : EX-PARTE VIDE ORDER DATED 11.01.2024
Dated : 19 April 2024 ORDER
1. The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (the "Act") against impugned order dated 17.08.2010, passed by the State Consumer Disputes Redressal Commission, Tamil Nadu ('for short 'State Commission') in First Appeal No. 225/2006. In this appeal, the Respondent / OP's Doctor appeal was allowed, thereby setting aside the Order dated 10.03.2006, passed by the District Consumer Disputes Redressal, Forum, Theni ("District Forum") in Consumer Complaint No. 21 of 2003, wherein the Complaint filed by the Complainant was partly allowed.
2. For convenience, the parties in the present matter are denoted as per their positions in the Consumer Complaint before the District Forum. R. Mujibur Rahman (Since deceased) is identified as the Complainant. Meanwhile, Dr. S. Ramkumar (Since deceased) is referred to as Opposite Party (OP).
3. Brief facts of the case, as per the Complainant, are that on 10.10.2000, the Complainant sought medical attention from OP due to severe abdominal pain. Upon examination, the OP diagnosed the Complainant with a 'left inguinal hernia' and recommended surgical intervention. Consequently, he was admitted in OP Hospital namely Mani Hospital, operated upon on 15.10.2000, and was discharged on 18.10.2000 with prescribed medication and post-operative instructions. Despite regular follow-up visits to the OP hospital, he continued to experience abdominal pain and muscle protrusion at the surgical site. Subsequently, on 17.11.2000 and 20.11.2000, the Complainant underwent further treatment by the OP, during which it was revealed that fluid accumulated at the surgical site. Although medication was prescribed, no measures were taken to drain the fluid or address the muscle protrusion issue, allegedly leading to deficiencies in treatment and negligence on the part of the OP. As his condition did not improve, he consulted the OP again on 05.02.2001. Despite complaining of back pain during urination, the OP overlooked this symptom. Dissatisfied with treatment received, he sought medical assistance in Madurai, where it was determined that the hernia surgery had been improperly performed, resulting in inflammation of the prostate gland due to infection. Meenakshi Mission Hospital recommended corrective surgery, estimated at Rs.37,000. The Complainant, having endured significant physical and mental distress due to OP's failure to accurately diagnose and treat his condition, filed CC No. 21 of 2003 before the District Forum seeking compensation of Rs. 12,00,000, comprising Rs. 9,00,000 for mental anguish and Rs. 3,00,000 for deficient service.
Top of Form4. In reply before District Forum, the OP admitted that the Complainant had indeed received treatment as alleged. Regarding the reviews conducted on 17.11.2000 and 20.11.2000, the OP noted the presence of fluid accumulation at the surgical site, attributing it to a reaction to the 'prolene mesh' implanted during surgery to prevent hernia recurrence. On 05.02.2001, when fluid accumulation increased, it was aspirated following correct procedure with ultrasound scan guidance, unrelated to muscle protrusion at the operated site. Any pain during urination was attributed to prostate enlargement and the mesh, which are additional illnesses unrelated to the surgery. The OP contended that at the time of discharge, he was advised to undergo surgery for a right-side hernia, which he did not undergo. No infection was present, and fluid collection resulted from a known complication due to a reaction to foreign material. Any recurrence of such symptoms after the lapse of 2½ years was due to the migration of a plastic sheet following a reaction in the body, not indicative of any negligence or deficiency whatsoever by the OP. The absence of hernia recurrence during subsequent examinations further supported OP's contention. In conclusion, the OP asserted that he had provided diligent medical care without violating protocols and acted diligently. Therefore, he deemed the Complainant's claim excessive and requested dismissal of the petition with costs.
5. The learned District Forum vide Order dated 10.03.2006, partly allowed the complaint. It found that while there was no fault regarding the type of operation performed by the OP for the left inguinal hernia, it concluded that "If the operation was done properly, there would not be any protrusion of muscles on the operated site," indicating a deficiency of service. The District Forum also acknowledged that hernia recurrence is a known and possible complication for which the OP cannot be held responsible. However, due to the improper operation, the OP was deemed responsible for the complainant's pain and suffering. Based on these findings, the District Forum reduced the claim from Rs.9 lakhs to Rs.2 lakhs for mental agony and from Rs.3 lakhs to Rs.1 lakh for deficiency in service. The OP was directed to pay the amounts with 12% interest.
6. Being aggrieved by the District Forum Order, the OP/Appellant filed FA No. 225/2006 and the State Commission vide order dated 17.08.2010 allowed the appeal, thereby setting aside the Order passed by the District Forum with the following reason /findings: -
"22. The Laparoscopic hernia operation, the TAPP Technic for inguinal hernia operation and placement of larger prostatitis (prolene mesh) to cover a wide hernia defect, are all accepted practice and nothing could be faulted, as if improper treatment or negligent act. Even as admitted by the complainant before performing operation, all the necessary tests were conducted, as recorded in the Case Sheet and whenever any problem was reported, that was properly attended by the opposite party including administration of medicines. When the problems were reported, the opposite party had taken Scan, urine tests, on number of occasions, pus was sent for culture and sensitivity, which revealed no growth, that fluid was aspirated, on number of occasions, which was presented only due to reaction of prolene mesh, that the complainant was treated with anti-inflammatory and antibiotics drugs, as and when required, subsiding the swelling also including collection of fluid. Thus, the post operative care taken by the opposite party appears to be unquestionable, and that is why even after going to another hospital, the complainant once again came to the opposite party's hospital, for treatment and because of no problem for 'sufficient period, namely two years, he had not taken treatment anywhere. But unfortunately the District Forum commentary upon EX.A4 and Ex.A1 as if the Doctors have sided with the opposite party, slipping from the track, going out of the field and recording inconsistence finding, slapped an order of compensation, against the opposite party, when no case of medical negligence, has been proved against him, which is liable to be set aside, for which purpose, the appeal deserves acceptance.
23. In the result, the appeal is allowed, setting aside the order of the District Forum dt.10.03.2006 in COP.No.21/2003 and the complaint is dismissed. Considering the facts and circumstances of the case there will be no order as to cost, throughout."
7. Being dissatisfied by the Impugned Order dated 17.08.2010 passed by the State Commission, the Petitioner/ Complainant filed the present Revision Petition No. 42 of 2011.
8. As a sequel to the demise of the OP-Doctor who performed the surgery on the Complainant, the Complainant impleaded the legal representatives (LRs) to discharge his liability. Upon notice of the present Revision Petition, it is observed from the record that the Petitioner filed an affidavit on 06.01.2022, notifying the Respondents through publication in two newspapers on 16.12.2021. The notice requested the Respondents to appear on 11.01.2022. However, none of the Respondents appeared. Subsequently, the registry report dated 23.11.2022 indicated that the last notice issued to the Respondents on 26.09.2022 was unserved, with the postal remark "refused." Thereafter, Respondents failed to appear on 31.11.2022, 13.02.2023, 11.07.2023, 09.10.2023 and 11.01.2024. Consequently, vide order dated 11.01.2024 the Respondents were placed ex parte.
9. I have examined the pleadings and associated documents placed on record, including the Orders of both the fora and rendered thoughtful consideration to the arguments advanced by the learned Counsel for the Petitioners.
10. The issue in question in this case revolves around the alleged medical negligence and deficiency in service by the OP-Doctor who performed surgery on the Complainant for left inguinal hernia. He contended that due to surgery, he suffered complications, including protrusion of muscles in the operated site and accumulation of fluid. The OP failed to provide proper treatment and care, resulting in physical and mental strain. On the other hand, the OP doctor before the District Forum denied any negligence and asserted that the surgery was conducted according to accepted medical practices. The primary issue is whether the OP was negligent in performing the surgery and post-operative care, leading to Complainant's suffering. If it is so, to what extent the OP is liable for compensation.
11. It is an admitted position that the Complainant had undergone a laparoscopic hernia operation and placement of larger prostatitis (prolene mesh) to cover a wide hernia condition. The diagnosis and the scope of treatment given to him are undisputed. It is also an admitted position that, before performing the surgery, all necessary diagnostic and other tests were conducted and duly documented in the Case Sheet. Further, whenever any problem was reported by the Complainant, the same was properly attended to by the OP doctor and treatment and medicines were given. When subsequent problems were reported after the lapse of significant time, the OP ensured further scanning, urine tests and forwarded the puss for culture and sensitivity, which revealed no growth. Fluid accumulated due to reaction of prolene mesh was aspirated and he was treated with medicines for swelling and collection of fluid. Therefore, the post-operative care taken by the OP is appropriate. That is the reason the Complainant had no medical issues wrt to the surgery for a long time and he had not taken any treatment anywhere. Thus, no medical negligence or deficiency in service is established.
12. Based on the discussion above, I find no reason to interfere with the well reasoned order of the learned State Commission dated 17.08.2010 with significant details of the treatment and processes adopted. Therefore, the Revision Petition No.42 of 2011 is dismissed.
13. There shall be no order as to costs. All pending Applications, if any, stand disposed of accordingly.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER