State Consumer Disputes Redressal Commission
T.J. Mathew, S/O Joseph, V vs Dr.V.Sunil, Orthopedic Surgeon, on 30 March, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/431 (Arisen out of Order Dated 07/05/2011 in Case No. CC/02/194 of District Kannur) 1. T.J.MATHEW thevalakattu house.CHEMPANTHOTTY P.O,THALIPARAMBA TALUK KANNUR KERALA ...........Appellant(s) Versus 1. DR.V.SUNIL DEPT.OF ORTHOPEADIACS,PARIYARAM KANNUR KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS.431/11 & 776/11
COMMON JUDGMENT DATED:30.03.2013
PRESENT:
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A. RADHA : MEMBER APPEAL NO.431/11 T.J. Mathew, S/o Joseph, V Thevalakkattu House, Chempanthotty.P.O, : APPELLANT Nidiyenga Amsom Desom, Taliparamba Taluk, Kannur District. (By Adv:Sri.James Fernandez) Vs. 1. Dr.V.Sunil, Orthopedic Surgeon, Department of Orthopedics, Academy of Medical Sciences Hospital, Pariyaram P.O, Kannur District. (By Adv: M/s M.C.Suresh & N.G.Suresh) 2. Alphonsa Mathew, Head Nurse, Ortho Department, Academy of- Medical Sciences Hospital, : RESPONDENTS Pariyaram P.O, Kannur District. (By Adv: Sri.Justus.S) 3. The Director, Academy of Medical Sciences Hospital, Pariyaram P.O, Kannur District. (By Adv: M/s Pallichal S.K.Pramod & T.L.Sreeram) 4. The District Collector, The State of Kerala, Kannur. APPEAL NOS.776/11 The Director, Academy of Medical Sciences Hospital, : APPELLANT Pariyaram P.O, Kannur District. (By Adv: M/s Pallichal S.K.Pramod & T.L.Sreeram) Vs. 1. T.J. Mathew, S/o Joseph, Thevalakkattu House, Chempanthotty.P.O, Nidiyenga Amsom Desom, Taliparamba Taluk, Kannur District. (By Adv:Sri.James Fernandez) 2. Dr.V.Sunil, Orthopedic Surgeon, Department of Orthopedics, Academy of Medical Sciences Hospital, : RESPONDENTS Pariyaram P.O, Kannur District. (By Adv: M/s M.C.Suresh & N.G.Suresh) 3. Alphonsa Mathew, Head Nurse, Ortho Department, Academy of- Medical Sciences Hospital, Pariyaram P.O, Kannur District. (By Adv: Sri.Justus.S) 4. The District Collector, The State of Kerala, Kannur. COMMON JUDGMENT SHRI.K. CHANDRADAS NADAR: JUDICIAL MEMBER
In these appeals the order of CDRF, Kannur in CC.194/02 dated:7.5.2011 is challenged respectively by the complainant therein and OP.No.3. The complainant approached the Forum alleging deficiency in service on the part of the opposite parties. The allegations in brief were that the complainant sustained fracture to his left lower leg as a result of assault by certain persons. He was immediately brought to the 3rd opposite party hospital at about 10.pm on 19.5.2001. First opposite party treated the complainant. Wound cleaning, debridement and fixing of steel rod were done. On the next day the 1st opposite party turned the complainant's leg side ways and tried to bend it forcibly causing heavy pain. First opposite party continued this practice for 2 weeks. He used to ridicule the complainant on seeing the hue and cry raised by him while turning and bending his fractured leg. In fact while fixing the steel rod in the complainant's leg there existed a gap at the fractured site that was caused due to the internal fixation done in an inappropriate manner by the 1st opposite party. Thereafter in the first week of June 2011, opposite parties 1 and 2 forcibly took the complainant near the operation theatre at 9.am and made the complainant lay on a stretcher kept in the open varandha of the theatre till 1 pm. Thereafter the complainant was taken inside the operation theatre. Apart from opposite parties 1 and 2 two other doctors were also present there. All of them forcibly administered drugs on the complainant and he was put under anaesthesia. Thereafter the steel rod was removed from the leg. Five holes were drilled indiscriminately in the bones and a steel tube was fixed in the left lower leg. During night when the complainant regained consciousness he was shivering with fever. Two bottles of blood were given to the complainant on the next day. Two separate lengthy wounds were made in the complainants left lower leg for removing the steel rod and the other for inserting the steel tube. The 1st opposite party obtained Rs.500/- as bribe. Complainant was given 2 bottles of blood and afterwards without anaesthesia opposite parties 1 and 2 with the help of Dr.Santhosh and another staff put many holes in the bones of the leg of the complainant. On another day a portion of the left leg bone was removed using cutter by opposite parties 1 and 2 without giving anaesthesia. On 7.8.2011 the complainant was taken to the operation theatre and opposite parties 1 and 2 did several experiments and when he became conscious he found that the length of the leg was reduced by 2 inches because bone at that portion of the leg was removed and unwanted holes were drilled in the leg. No consent was obtained from the complainant for doing this. Opposite parties 1 and 2 made false entries in the records. The complainant was totally bed ridden and infection developed due to carelessness of opposite parties. Proper antibiotics were not given. Opposite parties 1 and 2 were having animosity towards the complainant and they wanted to harm the complainant. Therefore on 20.8.2001 the complainant got discharged from the 3rd opposite party hospital. Then he was admitted in Justice Hegde Memorial Hospital, Mangalore from 20.8.2001 and was treated till 14.9.2001 and again from 15.11.2001 to 28.11.2001. He was again admitted there on 8.6.2002 till 22.6.2002. The medical advice is that most probably the lower leg of the complainant have to be amputed for retaining his life. The opposite party failed to exercise the skill of a medical expertise of reasonable standard. Hence the complaint for compensation.
2. The opposite parties filed separate version. The 1st opposite party admitted that the complainant was brought to the 3rd opposite party hospital on 19.5.2001 at 6 pm with alleged history of fall and injury to the left leg just above ankle joint. The surgical casualty medical officer who attended the complainant has recorded that he had compound fracture of left leg with bone protruding out with heavy contamination. Smell of alcohol was present in the breath of the complainant. At 6.10 pm the complainant changed the history of injury and stated that he was assaulted with stone and iron rods which was re-recorded by medical officer. The first opposite party saw the complainant at 6.30 pm and obtained history from the complainant of alleged assault, throwing with iron rod at him and fall from a bridge into water at about 4 pm at Chembanthotty. The complainant was under the influence of alcohol. First Opposite party examined him in detail and found that he had complex and serious injury. He had lacerated wound 15cm x 1 cm x 1 cm on the medial aspect of lower end of the left leg with severe contamination with protruding lower 1/3rd of Tibia and with contamination of proximal fracture site and bone small bits of paper dry leaves and mud were the contaminants. Posterior tibial artery and nerve were found exposed through the wound, the artery without pulsation and the nerve found contaminated and crushed at one site. Whole of distal end of gastrocnemius and soleus muscles were found crushed contaminated and exposed. Dorsalis pedis artery pulsation was found diminished. A clinical diagnosis of an open grade III C fracture dislocation. Potts - left was made. After X-ray and preliminary management namely injection of TT, ATS, IV antibiotics, wound cleaning and splinting, the complainant was brought to the operation theatre at 7.45 pm for debridement and fracture stabilization. The complainant and his relatives were informed before the surgery about the nature of fracture, extent and type of contamination injury to nerve and blood vessel and the chances of the need for amputation, infection, need of multiple surgeries and the possibility of stiffness and shortening. After explaining all these written informed consent incorporating all such details was obtained before the surgery. On the operation table first opposite party found that the complainant's fracture had an extension into ankle joint also. There was bone loss and contamination of bone and soft tissue was present. Debridement was done and stabilization of fracture with 3 thick K wires was done. Partial closure of wound was done to facilitate drainage. After dressing below knee plaster of paris slab was given as external stabilization. Post operative X-ray taken on 21.5.2001 showed good alignment. Blood transfusion was given on 2.5.2001 and 21.5.2001.
First wound inspection and dressing was done on 22.5.2001 and after that regularly. When discharge from the wound was noted antibiotics were changed and pus culture and sensitivity was also done. One suture was removed on 25.5.2001 and on 2.6.2001, sutures were removed from the lower part of the affected leg as there was infection. On 6.6.2001 multiple drill holes were put on the lower end of outer cortex of dead tibia bone to facilitate removal of the collection of discharge, to remove dead bone and for granulation tissue to come out. This is a painless procedure, since only the dead outer cortex bone is removed. After this procedure there were no complaints of excess pain during the night of 6.6.2001. On 8.6.2001 the complainant was given blood transfusion and was posted for external fixation on 9.6.2001. On 9.6.2001 external fixation and wound debridement was done after obtaining detailed informed consent from the complainant. The need for external fixation, chances of anaesthesia, need for repeat surgeries, chances of continuation of infection and possibility of shortening were explained to the complainant. Post operatively the complainant was shifted to the surgical intensive care unit and antibiotics and analgesics were continued. The complainant developed fever, rigor and chills as a reaction to I V fluids. No blood was given on 9.6.2001. When the general condition of the complainant improved he was shifted to the ward at 6.pm on 9.6.2001. Daily wound dressing and surgical wound care were carried out in the ward. On 22.6.2001 and 30.6.2001 cortical bone infection was noted and bits of dead bone were removed. On 7.7.2001 since the wound condition was not improving the patient was again subjected to debridement after informed consent. On 2.8.2001, X-ray of the complainant's affected leg showed evidence of sequestrum. On 7.8.2001 sequestrectomy and docking were done and re-alignment of fixator was also done. The specimen was sent for histo-pathological report. The report came as acute on chronic osteomyelitis. On 8.8.2001 repeat X-ray was taken. Since alignment was good the complainant was advised removal of fixator and above knee plaster of paris cast. But he was not willing. No cleaning and dressing was done. On 18.8.2001, the complainant had shoulder pain and he was advised to take X-ray but he was not willing. He wanted further treatment till 20.8.2001. On 20.8.2001 he obtained discharge against medical advice. He took with him all the 6 X-rays after giving receipts.
3. The allegation that the 1st opposite party turned firmly the left leg of the complainant and tried to forcibly bend it and thereby put the complainant in heavy pain is false. Inspite of bone loss proper alignment of broken bones was achieved through surgery. The allegations that complainant was made to lay in the open varandah till 1 pm, he was forcibly administered drugs and put on anaesthesia etc are false. Since infection was not under control re-debirdement and re-stablisation were planned. The entire procedure was done with his consent. It is not correct to say that 5 holes were indiscriminately drilled in his bones. It was done for the definite purpose of stabilization of the leg with external fixation. It is incorrect to say that the complainant was shivering with fever in the night. He had fever and chills which was promptly treated. The allegation that 2 lengthy wounds were made in the leg is false. First opposite party took no bribe from the complainant or his relatives. The allegations that portion of leg bone was removed etc are not correct. Only non viable dead bone pieces were removed. Only the approved and standard treatment modalities were adopted. The dead bone was removed not to shorten the leg but to save his leg, since the presence of dead bone would prevent control of the complainant's infection. That was essential for the union of bones. Consent was taken from the complainant or his son prior to surgery done to him on various occasions. But the signed consent obtained from the complainant is missing from the case sheet and the matter was informed by the medical superintendent. Properly sterilized and infection free surgical instruments and sterile surgical materials were used for treatment. Infection developed because the wound was heavily contaminated at the time of hospitalization. Infection failed to get controlled because of the presence of dead and devitalized tissues at the site of injury. That opposite parties 1 and 2 were having animosity is a false allegation. There was no carelessness on the part of opposite parties.
4. The 2nd opposite party adopted the version of the first opposite party. The contentions raised by the 3rd opposite party were more or less identical of the contentions of the 1st opposite party. The 4th opposite party contended that the management of the 3rd opposite party hospital is vested with the society itself and the Government is an unnecessary party to the proceedings.
5. Before the Forum the complainant gave evidence as PW1. Exts.A1 to A28 were marked on his side. The 1st opposite party gave evidence as DW1. Two witnesses were examined on the side of the opposite parties as DW2 and 3. Exts.B1 to B13 were marked on the side of the opposite parties. The report of the Medical Board District Hospital, Kannur was marked as Ext.X1.
6. The Forum held that no deficiency in the treatment of the complainant was established as against opposite parties 1 and 2 but held that there was deficiency in service on the part of the 3rd opposite party hospital in as much as the consent letter obtained and kept under their custody went missing. The Forum awarded compensation of Rs.25,000/- in this regard and Cost of Rs.2500/-. The complainant and the 3rd opposite party were aggrieved, hence appeal 431/11 by the complainant and A.776/11 by opposite party No.3.
7. The common points that arise for determination in these appeal are:-
1. Whether the conclusion of the Forum that there was no deficiency on the part of opposite parties 1 and 2 can be sustained?
2. Whether the missing of the letter of consent from the hospital records amount to deficiency in service and if so whether the order of the Forum can be sustained?
3. What are the reliefs if any to be granted?
Point Nos:1 to 3:-
8. We have referred to the allegations in the complaint and the contentions in the version in detail to avoid repetition. All sorts of allegations are made in the complaint. According to the complainant he was brought to the 3rd opposite party hospital on 19.5.2001 at 10.pm with fracture to his left lower leg. As per the medical records and the version of the opposite parties the complainant was brought to their hospital at 6.pm and in fact the 1st opposite party doctor examined the patient at 6.30 pm. The records show that the complainant sustained grievous injuries. The complainant had lacerated wound 15x1x1cms on the medial aspect of lower end of the left leg with severe contamination with protruding lower 1/3rd of tibia and with contamination of proximal fracture site and bone. Small bits of paper, dry leaves and mud were the contaminants. The posterior tibial artery and nerve were found exposed through the wound. The artery was without pulsation and the nerve was found contaminated and crushed at one site. Whole of distal end of gastrocnemis and soleus muscles were found crushed contaminated and exposed. Dorsalis pedis artery pulsation was found diminished. A clinical diagnosis of open grade III C fracture dislocation, potts left was made. The allegations made in the complaint are to be analysed in the background of the very grievous injury sustained by the complainant. It is sufficient to say that certain allegations in the complaint are ridiculous to say the least. No doctor would turn the affected leg as alleged in the complaint or try to forcibly bend the same. Even while alleging animosity on the part of opposite parties 1 and 2 towards the complainant he remained as inpatient in the very same hospital for more than 3 months before he finally got discharged at request. The very injuries sustained warranted several procedures for correction. Due to the injury bone was broken or crushed and bone pieces were removed from the left leg. The complaint is that gap was left between the bones when internal fixation was made. But it is an accepted procedure for otherwise shortening of the leg would be the result. Initially X-ray showed good alignment and the treatment continued. The wound was heavily contaminated and infact the tibial bone was protruding out from the fracture site. In that background infection of the wound was real possibility and the best treatment could not have avoided such a contingency. Yet the complainant has only grievances. The allegations are made as if he could have treated himself better than the opposite parties. There is absolutely no basis for the same. There is nothing in evidence to show that the opposite parties followed a procedure which is not an accepted procedure. In fact competent and dedicated service is seen rendered to the complainant. This is evident from the fact that the complainant chose to examine no expert to show that any of the treatment procedures adopted by opposite parties 1 and 2 was not the advised course of procedures. On the contrary the opposite parties examined DW2 and no question bearing on this aspect was put to him. So really the complainant has not discharged his burden of showing that the service of the opposite parties 1 and 2 was in any way deficient. This was the clear cut finding of the Forum also. It may be true that the complainant sustained 27% of permanent physical disability but in the nature of the grievous injury sustained and the heavily contaminated wound it is not surprising that despite best effort he suffered permanent disability. The question is whether opposite parties 1 and 2 as competent medical experts in their field exhibited expertise of reasonable standards and not the highest or the lowest. They are also not insurers and cannot guarantee 100% cure. Yet the course of treatment made and the successful recovery of the patient avoiding amputation would show that opposite parties 1 and 2 have treated the patient with care, expertise and dedication and the complaint to the contrary is without any basis. Once bone becomes exposed or infected it may become dead and the only viable option is to remove the dead portion of the bone. That alone was done. To repeat no course of procedure not accepted by experts was followed by opposite parties 1 and 2.
9. The allegations in the complaint are also to be viewed in the background of the nature of the complainant. Immediately on admission he was found to be under the influence of alcohol. He initially told the Surgical Casualty Medical Officer who attended him that he sustained injury to left leg by a fall. This was at 6.pm. Smell of alcohol was noted in his breath. After 10 minutes he changed the history of the incident and stated that he was assaulted with stone and iron rods which was rerecorded by the Chief Medical Officer with time in the OP card. When the 1st opposite party examined him at 6.30 pm he told history of assault by throwing with iron rod and fall from a bridge into water at about 4 pm at Chembanthotty. Even when giving statement to police the complainant was not consistent, but the scene mahazer shows that the canal which was described as the place of incident had a depth of 4 meters. It may be immediately mentioned that not only the complainant was under the influence of alcohol, he was not sure of what happened and how he sustained injury. It may be further mentioned that the heavy contamination of the injuries with mud, paper and dry leaves shows that in all probability he fell into water from a height as claimed by him. Nobody knows whether the fall was as a result of assault or under the influence of alcohol. May be he changed version because taking advantage of a fall he wanted to implicate some one who was not liked by him or may be simply due to inebriated condition. He was not sure of what had happened but there is no other possibility. Even while making allegations he has no case that competent treatment was not given to him. As mentioned already the evidence indicates that expert and dedicated treatment was given to the complainant and deficiency of service cannot be found on the part of the opposite parties. The conclusion of the Forum in this regard is unassailable.
10. As against opposite party No.3 the Forum found deficiency of service because one of the consent letters obtained from the complainant was found missing from the records. The Forum reasoned that whatever may be the reason, the missing of consent of a serious operation, wherein complainants consent was taken should be dealt with as it deserves. There is no answer for this question on the part of the opposite parties. It is a document kept and maintained by the opposite parties. Hence they are answerable for the missing. Any leniency towards this negligence will certainly encourage sense of irresponsibility and carelessness. The sense of keeping the case sheet with its sanctity should be protected. The authorities did not give much importance to keep the case sheet as a precious document. It may be noticed at once that the finding of the Forum is not that no consent was taken from the complainant before the important operation but simply that the consent letter went missing from the records. This missing has really nothing to do with the service that was rendered to the complainant. Procedure of taking consent is something to safeguard the interests of the doctors and the hospital. In the absence of written consent they may face the risk of being accused of doing the operation without consent. But this has nothing to do with deficiency in the service as a doctor. It is pertinent to notice that this is not a case in which on earlier occasions consent for operation and similar procedures were not taken. In fact Exts.B12(a) and Ext.B12(b) are two such consent letters obtained by the opposite parties on earlier occasions. So, the opposite parties used to perform the operation with informed consent. Infact on the 3rd occasion also when sequestrum was done consent were taken. On 6.8.2001 the doctors really ordered to take written consent which is recorded in the case sheet. Page 67 of Ext.B12 shows that it was recorded "the consent to be taken" and at page 68 it is recorded that bystanders consent was taken and below that 'consent taken'. It was subsequently the consent letter went missing. The ordinary course of human conduct is also that a doctor would not miss a procedure that is required for his own protection. In the above background the Forum rightly find that consent was infact taken before sequestrectomy was done. In fact the complainant has no case that any of the procedures was adopted without his consent or the consent of the bystanders. This is when he has made all sorts of allegations against the doctors. So, the mere failure that the 3rd opposite party did not preserve the written consent taken from the bystander of the complainant is no sufficient reason to find that deficiency of service was committed as against the complainant. It follows that the Forum erred in awarding compensation against the 3rd opposite party. Hence appeal 776/11 filed by OP.No.3 is liable to be allowed. There is no merit in the appeal filed by the complainant. Hence Appeal 431/11 is liable to be dismissed. The points are found accordingly.
In the result Appeal 431/11 is dismissed and Appeal 776/11 is allowed. The order or CDRF, Kannur in CC.194/02 awarding compensation against opposite party No.3 is set aside. The complaint is dismissed. Considering the facts of the case the parties are directed to bear their costs in the appeals.
K. CHANDRADAS NADAR: JUDICIAL MEMBER A. RADHA : MEMBER VL.
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER