State Consumer Disputes Redressal Commission
Dr. M.M. Kale vs 1. M/S. Sunshine Hospital on 28 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
FA.NO.118,122,388/2018
AGAINST ORDERS IN CC.NO.278/2013 ON THE FILE OF
DISTRICT CONSUMER COMMISSION-III, HYDERABAD
FA.No.118/2018
BETWEEN
M/s.Sunshine Hospital,
Near paradise Circle,
1-7-201 to 205, PG Road,
Secunderabad-500003.
Rep by T.Pankaj Raj Yadav
.....Appellant/Opposite
Party No.1
And
1. Dr.M.M.Kale,
S/o Sri Manik Rao,
Aged about 73 years,
Consulting Pediatrician,
R/o Mahalakshmi Nagar,
Gulbarga, Karnataka.
2. Dr.Akhil Dadi,
Orthopedic Surgeon and
Knee Replacement Specialist,
M/s Sunshine Hospital,
PG Road, Secunderabad,
Pincode-500003.
.....Respondents/Complainant/
Opposite party No.2
Counsel for the Appellant/Opposite Party No.1 : M/s. P.V. Janani
& Associates
Counsel for the Respondents/Complainant/
Opposite party No.2 : M/s. G.K. Law
Associates - R1
Mr.M.Papa Reddy-R2
FA.No.122/2018
BETWEEN
Dr.Akhil Dadi,
Orthopedic Surgeon and
Knee Replacement Specialist,
M/s Sunshine Hospital,
PG Road, Secunderabad,
Pincode-500003
.....Appellant/Opposite
Party No.2
2
And
1. Dr.M.M.Kale,
S/o Sri Manik Rao,
Aged about 73 years,
Consulting Pediatrician,
R/o Mahalakshmi Nagar,
Gulbarga, Karnataka.
2. M/s.Sunshine Hospital,
Near paradise Circle,
1-7-201 to 205, PG Road,
Secunderabad-500003.
Rep by Managing director.
.....Respondents/Complainant/
Opposite party No.1
Counsel for the Appellant/Opposite Party No.2 : Mr.M.Papa Reddy
Counsel for the Respondents/Complainant/
Opposite party No.1 : M/s. G.K. Law
Associates - R.1
M/s. P.V. Janani & Associates-R2
FA.No.388/2018
BETWEEN
Dr.M.M.Kale,
S/o Sri Manik Rao,
Aged about 73 years,
Consulting Pediatrician,
R/o Mahalakshmi Nagar,
Gulbarga, Karnataka.
.....Appellant/Complainant
And
1. M/s.Sunshine Hospital,
Near paradise Circle, PG Road,
Secunderabad-500003.
Rep by Managing Director.
2. Dr.Akhil Dadi,
Orthopedic Surgeon and
Knee Replacement Specialist,
M/s Sunshine Hospital,
PG Road, Secunderabad,
Pincode-500003
.....Respondents/Opposite parties
Counsel for the Appellant/Complainant : M/s. G.K. Law
Associates
Counsel for the Respondents/Opposite parties : M/s. P.V. Janani
& Associates- R1
Mr. M. Papa Reddy - R2
3
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
&
HON'BLE SMT R.S. RAJESHREE, MEMBER
TUESDAY, THE TWENTY EIGHTH OF MARCH
TWO THOUSAND TWENTY THREE
*******
(Per HON'BLE SRI V.V.SESHUBABU, Member-Judicial)
Common Order:
1. This appeal number 118/2018 is filed U/s 15 of Consumer protection Act, 1986 by the unsuccessful opposite party No.1 against order in CC 278/2013 dt.28.02.2018, directing the opposite parties No.1 and 2 to pay with joint and several liability, the costs of surgery conducted to complainant at Yashoda Hospital at Rs.2,11,728/-, compensation of Rs.2 Lakhs for mental agony and Rs.10,000/- towards costs.
2. This appeal number 122/2018 is filed U/s 15 of Consumer protection Act, 1986 by the unsuccessful opposite party No.2 against order in CC 278/2013 dt.28.02.2018, directing the opposite partiers No.1 and 2 to pay with joint and several liability, the costs of surgery conducted to complainant at Yashoda Hospital at Rs.2,11,728/-, compensation of Rs.2 Lakhs for mental agony and Rs.10,000/- towards costs.
3. This appeal number 388/2018 is filed U/s 15 of Consumer protection Act, 1986 by the complainant against order in CC 278/2013 dt.28.02.2018, for not granting reliefs like hospital expenses incurred at opposite party No.1 and Yashoda Hospital at Rs.3,76,447/-, Rs.2,80,000/- for loss of income @ Rs.70,000/- per month, compensation of Rs.5,00,000/- for mental agony, Rs.2 4 Lakhs towards negligence and deficiency in service by the opposite parties with costs.
4. The brief averments of the complaint in CC 278/2013 filed U/S 12 of CP Act 1986 are that the complainant is a reputed pediatrician, at Gulbarga; that under gone knee replacement surgery at the opposite party No.1 hospital, conducted by opposite party No.2 being a specialist, who was introduced to the complainant by his student Dr.Ramakanth Kulararni an Orthopedic surgeon; that the complainant aged about 73 years was admitted in the opposite party No.1 hospital on 10.07.2012 and after preliminary investigations, the surgery was performed and discharged on 13.07.2012; that as complainant could change the dressing for himself, advised to do so after 10 days and was given necessary instructions and medication and also given physiotherapy; that complainant had reported no complaints. 4(A). It is pleaded that on 10.08.2012 complainant noticed a small swelling in the "POPLITEAL FOSSA" area; that on 18.08.2012, he undergone color Doppler test at Gulbarga and a large left POPLITEAL PSEUDO ANEURYSM (swelling in the Popliteal Artery in the left leg) was detected; that the same was informed to opposite party No.2 who asked him to come for checkup and after the same, confirmed the diagnosis of Pseudo Aneurysm; that when complainant expressed unhappiness over the complication, the opposite party No.2 not given any satisfactory response and referred him to Dr.Devendra Singh, noted vascular surgeon at Yashoda Hospital, Somajiguda; that Dr.Singh advised complainant to immediately undergo the operation else there may 5 be need to amputate the leg and performed operation on 24.08.2012 against the diagnosis of large left Popliteal Artery Aneurysm, by A). Excision of large Popiliteal Artery Aneurysm. B).Popliteal to post Tibial Artery end to end Anstamosis. C).Popliteal to Anterior Tibial Artery bypass with RSV Graft; that inspite of the surgery complainant has been suffering with pain and feels left knee warmth; that this all happened due to the negligence of opposite party No.2 in conducting the operation in a casual manner; hence, the complaint.
5. The brief averments of the written version of opposite party No.1 is that, it is adopting the written version of opposite party No.2 and further stated that it has obtained insurance policy from Oriental Insurance Company Ltd for error and omission- medical establishment and it was in force as on the date of operation conducted on complainant and so, requested to dismiss the complaint.
6. The brief averments of the written version of opposite party No.2 is that, the complainant bargained against the quoted price of the cost of operation and it was reduced by Rs.35,000/- as the complainant is in the same profession; that the complainant never came for review after two weeks as advised and as he was comfortable after the surgery discharged after 72 hours; that he was able to walk independently and the operation was successful, as such complainant cannot attribute any negligence; that complainant came for checkup in the third week of august 2012 with a swelling at the back of the operated knee and it was explained to complainant; that it was no way connected to the 6 surgery; that at the time of surgery tissues at the back of the knee are not touched and due to pure vascular problem, the swelling occurred and so, was referred to vascular consultant. 6(A). It is also pleaded that, the alleged opinion of Dr.Devendra Singh as pleaded in the complaint in the lines that complications would have been avoided if the surgery was conducted in a professional manner is not correct and no document is filed to support such alleged opinion; that Dr.Devendra Singh himself informed the opposite parties, that the aneurysm might have occurred due to A).Uncontrolled Hypertension. B).Smoking Habit. C). Aging with Atherosclerosis of blood vessels and D). Anomaly in the vessels as shown in the Angiogram report; that as the complainant has been suffering from uncontrolled hypertension and anomaly in the vessels of the legs could have suffered aneurysm and not due to knee surgery; that aneurysm was detected after the surgery and there was no need for CT angiogram before surgery; that post operative complications are not connected to the knee surgery; that operation was performed in a professional manner and without any negligence and so, requested to dismiss the complaint.
7. Before, the commission below complainant filed evidence affidavit as PW1 and also examined Dr.Devender Singh as PW2 and both of them were cross examined. Ex.A1 to A41 are marked for the complainant. Dr.Akhil Dadi/Opposite party No.2 filed evidence affidavit as RW1 and he was examined in cross. Ex.B1 to B3 are marked for the opposite parties. After going through the entire record the commission below passed the order as stated 7 Supra. Aggrieved by the same all the parties to the complaint filed the respective appeals.
8. The grounds of appeal No.118/2018 filed by opposite party No.1 are that:-
The order of the district Commission is contrary to law weight of evidence and probabilities of the case. The commission below erred in disbelieving the evidence of RW1.
The commission below erred in relying on the self serving evidence of PW1.
Failed to appreciate that development of Pseudo Aneurysm could not by itself comes within the scope of medical negligence.
The opposite parties discharged their duties with reasonable skill and competence and so, it will not fall within the four corners of medical negligence.
The commission failed to observe that PW1 failed to prove the deficiency of service.
The commission failed to observe that there are several reasons for a person to suffer aneurysm which includes Atherosclerosis and Anomaly of anterior tibial vessel. The moment Pseudo aneurysm was brought to the notice of opposite parties they have acted swiftly and effectively there by saved PW1 from the possible and permanent damage. The awarded compensation with joint and several liability of the opposite parties is not maintainable. 8 With these grounds and others that will be urged at the time of arguments, requested to allow the appeal by setting aside the order of the commission below.
9. The grounds of appeal in FA 122/2018 filed by opposite party No.2 are almost similar to that of the grounds of appeal in FA 118/2018. The other grounds are:-
The commission below failed to appreciate that PW1 not came for review after discharge and came only after about 40 days of the operation, thereby he himself responsible for the aneurysm.
Commission below failed to consider the admission of PW2; that Pseudo aneurysm is an un common complication in knee replacement surgery and also admitted that it is difficult to presume any negligence on the part of RW1 in conducting the operation, more so, there was a gap of more than one month after the operation to develop aneurysm.
The commission below fail to appreciate that instances of aneurysm being developed during a knee replacement surgery due to popliteal artery injury is less than 0.017%. The commission below ought to have taken into consideration; that as per the operation techniques and orthopedic surgery techniques, such as advanced imaging studies like computed tomography, MRI and bone scan are typically not necessary unless history and physical examination findings are strongly suggestive of pathology with negative playing films.
9 With these grounds and others that will be urged at the time of arguments requested to allow the appeal by setting aside the order of the commission below.
10. The grounds of appeal in FA 388/2018 filed by complainant are that, The order of the commission below is contrary to law weight of evidence and vitiated by material irregularity. The commission below grossly failed to award the claims as preferred in the complaint.
The commission below awarded meager amounts which are unconscionable.
With these grounds and others that will be urged at the time of arguments requested to allow the appeal by modifying the order passed by the commission below by enhancing the amounts.
11. Now the points for discussion in the appeal are:-
1. Whether, the complainant suffered left popliteal artery pseudo aneurysm due to the operation negligently performed by opposite party No.2 on 10.07.2012 in the opposite party No.1 hospital?
2. Whether, the order of the Commission below is sustainable under law?
3. Whether, the complainant is entitled for the amounts as claimed in the complaint?
4. Relief?10
12. Nobody is examined and no document is marked before this Commission. Heard the arguments of both sides. For the sake of convenience the parties will be addressed as they arrayed in the complaint.
13. Point No. 1:-
PW1 is a pediatrician aged 73 years by the date of operation conducted by RW1 in the opposite party No.1 hospital on 10.07.2012 and on the said day he was admitted and undergone the left knee replacement surgery and was discharged on 13.07.2012. Admittedly, on 09.07.2012 PW1 met RW1 and the following investigations were performed on PW1 Viz., 1). Complete Blood Picture. 2). Blood Grouping and RH. 3). Prothrombin time(PT). 4). Random Blood Sugar. 5). Blood Urea and Creatinine.
6). Electrolytes. 7). HIV and HBsAg. 8). Complete Urine Examination. 9). 2D Echo and color Doppler Study. 10). ECG. It goes to show that having satisfied with the findings given under the above tests, PW1 was subjected to left knee replacement surgery. It is needless to mention that nothing abnormal was found in any of the above tests. It is also to be observed that in the absence of any abnormal findings opposite parties cannot be found fault with for not conducting other tests like MRI, Computed Tomography etc.
14. Ex.A3 is the discharge summery issued by opposite parties dated 13.07.2012 making note of diagnosis as "Osteo Arthritis of left knee" and surgery was performed on left total knee replacement with PFC-CR on 10.07.2012 as against the chief complaints of pain in left knee and has difficultly in 11 walking/squatting/climbing stairs. PW1 is noted as known hypertension. It was also noted that post operative period was uneventful-wound dressing done-wound healthy-physiotherapy started-patient is being discharged in a satisfactory and stable condition with medication and also to perform physiotherapy exercises and further advise, to remove dressing and take path on or after 10 days, consult RW1, physiotherapy advised for one month and provided the number of physiotherapy doctor, with an advice to come after two weeks on any Tuesday or Friday to met RW1 in the ortho OPD and in case of emergency given number to contact besides listed the symptoms of emergency.
15. Admittedly, PW1 not came for review and being a doctor he himself removed the dressing after 10 days and he did not find any emergency, but, contacted RW1 over phone and took advices. These averments in the complaint goes to show that RW1 attended PW1 in a diligent manner over phone even though PW1 at a far off place. It is pleaded in the complaint, that on 10.08.2012 PW1 noticed a small swelling in the popliteal fossa and being a doctor constantly examined the swelling and when it was increasing in size and as he felt pain, numbness and tingling sensation in the left foot and on 16.08.2012, when PW1 felt pulsation in the swelling under-gone color Doppler test in Gulberga under Dr.S.C.Desai diagnostic and radiologist on 18.08.2012, who found large left popliteal pseudo aneurysm at the level of bifurcation of popliteal artery. Then PW1 contacted RW1 and on his advice came down to opposite party No.1 hospital and after physical examination RW1 confirmed the diagnosis of Dr.Desai and 12 referred PW1 to PW2 who is a vascular surgeon working in Yashoda Hospital Somagiguda.
16. It is the contention of PW1 that he expressed unhappiness to RW1 regarding way in which the operation was performed but, RW1 not given any reason for the complication. There is no documentary proof for this alleged conversation. PW1 further stated that on 20.08.2012, PW2 subjected him to CT Lower Limb Angiography and found features of pseudo aneurysm and advised immediate operation to save the life and limb and got admitted PW1 in the Yashoda Hospital on 23.08.2012 and performed surgery on 24.08.2012. It is also the contention of PW1 that, PW2 opined that if surgery was done in a professional manner with all due care and caution and without any negligence the complication could have been avoided. There is no documentary proof for this alleged opinion of PW2. It may as it be there.
17. PW1 stated that, he was an occasional smoker and not in the habit of keeping packs of cigarettes. Admittedly, he was a known patient of hypertension. However, RW1 admitted that, if any person is having hypertension, no operation will be performed without controlling the same at first. As on 10.07.2012, as per Ex.B3, the BP reading of PW1 was at 120/80 mmHg. So, the state of hypertension of PW1 is not an obstacle to perform surgery on him and on the other hand it was in within levels.
18. Evidence of PW2 plays an important role to decide the case. In the chief examination PW2 stated that RW1 informed him over the phone that PW1 has aneurism in the left knee join and it 13 needs immediate attention, but, not given any reason for aneurysm for the said ailment. He further went on to add; that "Pseudo Aneurysm is related to the vascular system and the common reason will be injury to the blood vessels apart from other reasons. Hypertension may not be the sole reason for pseudo aneurysm. But, it may contribute to the said ailment". PW2 also stated that "Hypertension is one of the reasons for causing aneurysm. So, is the case with smoking also. Before, conducting operation on the knee the doctor has to take into consideration the upper part and lower part of the knee, whether there is any pre existing aneurysm or block in the arteries. Aneurysm in this particular case can be related to the operation conducted by opposite party No.2. Aneurysm can be formed on any part of the human body". PW2 also stated that "I cannot say whether opposite party No.2 has acted negligently in conducting the first operation." In the cross examination PW2 stated that, "Pseudo Aneurysm is an uncommon complication of knee replacement surgery. It is difficult to say that there was medical negligence on the part of opposite party No.2 on conducting the knee replacement surgery, as there was a gap of more than one month from the date of operation. Apart from other reasons anomaly in the vessels of the legs is also one of the reasons leading to pseudo aneurysm. The complainant is having anomaly in the vessels of legs. The anomaly in the blood vessels in the lower limb of human body is an uncommon phenomena".
19. PW1 in the cross examination stated that, "It is true that aneurysm is related to vascular system. It is very rare 14 that factors such as uncontrolled hypertension, smoking habit, atherosclerosis of blood vessels and anomaly in vessels are dominant factors causing aneurysm". When suggested, PW1 stated that, he was not having anomaly in blood vessels since, no angiogram or arteriogram was conducted on him at all. It is important to note that as per PW2, PW1 is having anomaly in the vessels of the legs. So, PW1 is not speaking truth on this aspect.
20. RW1/opposite party No.2; stated that "we have not conducted any tests with regard to the blood vessels of the complainant. Color Doppler and angiogram are the tests required to know the condition of the blood vessels. These two tests are not done in this case". "I did not suspect that the patient is having vascular disorder". "It is true that it is risky to go for operation without knowing the condition of blood vessels of the patient who is suffering from acute hypertension". "As on the date of conducting operation on the complainant by me, all his parameters were in good condition". It is important to note that RW1 was only cross examined in part at first on 26.06.2015, followed by 29.07.2015 and 29.09.2015. The subsequent cross examination was recorded by the advocate commissioner. RW1 deposed that "the reasons for formation of pseudo aneurysm are not known to me"; that "a bad knee replacement surgery can affect the rear portion of the knee, since, the front and back of the knee are closely connected. Witness adds that the affect of the bad surgery show immediately specifically during hospital stay and patient with bad surgery do not get discharged comfortably". 15
21. It is the specific case of RW1 that the pseudo aneurysm was not surfaced due to the operation conducted by him. Whereas PW2 stated that PW1 suffered the same due to the operation. However, PW2 not whispered that it was the result of operation being conducted negligently. Added to the same when PW2 stated that due to the long gap between the date of operation and surface of the pseudo aneurysm cannot attribute any negligence to RW1. For any reason if PW1 is not satisfied with the conclusions arrived at by PW2, he should have examined an expert to clarify the doubts or to pin down RW1 with negligence. However, relied upon the following medical literature.
22. The complainant counsel field medical literature to show that, total knee arthroplasty carries a risk for vascular injuries because of the anatomical position of the popliteal artery behind the articulation during the tibial cut in fiexion; that never the less pseudo aneurysms or false aneurysms are infrequently reported after TKA; that as peri- and intra articular infiltration analgesia is now widely used after arthroplasty, one should be alert to the risk of such arterial complications. It shows whenever TKA(Total Knee Arthoplasty) is conducted on the patient who is having long history of hypertension and under medication of cholesterol problem, RW1 should have taken more caution while performing the operation that too on an elderly person of 73 years old. When RW1 boasted himself has a specialist in TKA and said to have performed 4000 operations is expected to be more vigilant. Probably, as RW1 referred patient to PW2, he felt shy enough, to conclude that a bad surgery was performed on PW1. In polite words PW2 in crystal clear terms stated that pseudo aneurysm was 16 due to the operation of TKA but not stated that cannot say that RW1 was at negligent. The medical literature goes to show that aneurysms would develop slowly. In such case, contention of PW2 that, the problem not surfaced immediately after the operation is not a ground to give a clean chit to RW1. Taking into consideration all the discussions made so far, we are of the view that the commission below not erred in any manner by finding fault with RW1 in performing the operation.
23. Probably as PW1 was relieved of his knee pain after the operation by RW1, the commission below not awarded any cost of operation incurred in the hospital of opposite party No.1 as compensation to PW1. Therefore, we are not interfering with the impugned order on that aspect. We are in concurrence with the impugned order delivered by the commission below in all respects. So, the points are answered accordingly.
24. In the result, FA 118/2018 and FA 122/2018 are dismissed without costs.
Whereas, FA No.388/2018 is also dismissed without costs. By confirming the order in CC 278/2013 on all aspects.
Typed to the dictation on system; corrected and pronounced by us in the open court on this 28th day of March 2023.
SD/- SD/-
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MEMBER (M-J) MEMBER (M-NJ)
Dt: 28.03.2023
PMK*