State Consumer Disputes Redressal Commission
Dr.R. Muralidharan, | City Hospital, ... vs N.Ramakrishnan,Dindigul. on 13 April, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.NO.513/2007 [Against order in C.C.No.69/2005 on the file of the DCDRF, Dindigul] DATED THIS THE 13th DAY OF APRIL 2010 Dr.R. Muralidharan, | City Hospital, | Appellant/Opposite Party 4/361, Trichy Road, | Dindigul. | Vs. N.Ramakrishnan, | Respondent/Complainant S/o. Nandeeswara Thevar, | M-2-39, R.M. Colony, | Dindigul. | The Respondent as complainant filed a complaint before the District Forum against the Appellant/opposite party praying for the direction to the opposite party to pay compensation of Rs.7.5 lakhs in the further interest till the date of realization from the date of application and a cost of Rs.10,000/-. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.14.08.2007 in C.C.69/2005. This appeal coming before us for hearing finally on 23.03.2010, upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant /O.P. : Mr.B.Cheran, Advocate. Counsel for the Respondent/Complainant : Mrs.Nandiniram, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party having suffered an award in the hands of the District Consumer Disputes Redressal Forum, Dindigul, challenges the same in this appeal.
2. The Respondent/complainant having met with an accident on 21.10.2004, admitted in the first opposite party with a fracture in his neck of femur left hip for treatment, for which, an operation was performed on 22.10.2004 by placing uncemented Bipolar Prosthesis in his left hip under a package arrangement of Rs.1 lakh. He was discharged on 6.11.2004 as if he can walk freely. Even after several months, the complainant could not walk without the support of stick and developed heavy pain in the surgery part in the leg, which revealed, that due to surgery done by the opposite party, the left leg became 2cm long and because of the lengthening of the operated leg, the complainant was unable to move freely and he suffered monetarily as well as physically. Thereafter, on 25.6.2005, the complainant had taken treatment wherein hip replacement surgery was performed on 25..6.2005 by which the carelessness and negligence act of the opposite party was rectified. By the negligent act of the opposite party, he has not only lengthened the left leg by 2Cm, but by using cheap quality of component, resulting a loose uncemented Bipolar Prosthesis. For the past 8 months, the complainant was unable to attend his day to day business, thereby, he incurred heavy loss, which should be compensated.
On the basis of the above averments, accusing deficiency, the complainant has filed a case for the recovery of a sum of Rs.7,50,000/- under five headings as described in particulars of claim.
3. The opposite party/appellant admitting the treatment given by him, as well as the operation performed on 22.10.2004, would contend that there was no negligence or careless act on his part, whereas as prudent doctor, he adopted the practice accepted as proper with all the skill and therefore, the alleged medical negligence is untrue, that even before the treatment given to the complainant, operation for total hip replacement surgery was discussed, then considering the physical condition of the complainant, it was not adopted, that due to over work of the complainant after the operation, the complainant's prosthesis may became loose, not due to defective method of surgery, for which, the opposite party cannot be held responsible, praying for the dismissal of the complaint, denying quantum as well as other allegations in the complaint.
4. The District Forum evaluating the materials, had deduced the conclusion that the operation was not properly done and the Bipolar Prosthesis was loosely fixed, which should be construed as medical negligence, that because of the medical negligence committed by the opposite party, the complainant was under continuous treatment for several months, thereby, incurring loss to him, causing mental agony also, which should be compensated. Considering the facts, the complainant had spent a sum of Rs.1 lakh for the first operation with the opposite party as well as another operation, spending a sum of Rs.1.80 lakhs, in addition to, taking into account of the mental agony, fixed the quantum of compensation at Rs.5 lakhs, which was ordered to be paid by the opposite party with interest as per the order dated 14.08.2007, which is impugned in this appeal.
5. Heard, the learned counsel appearing for either side, perused the documents, written submission of the respondent, as well as the order of the District Forum.
6. The learned counsel for the appellant would submit that when the complainant has not made out any medical negligence against the opposite party by adducing expert evidence, the directions issued by the District Forum on the basis of incorrect findings should be set aside. It is the further submission of the appellant that when the opposite party had followed the accepted practice, procedure, protocol, in treating the complainant, if any admitted complication had taken place, resulting some problem that cannot be taken as medical negligence,, which was not properly analyzed by the District Forum, resulting injustice. The learned counsel elaborately arguing the procedure adopted at the time of operation, taking us to the medical literature also, would contend further that the erroneous order, even shifting the burden upon the opposite party, which is not legally sound, should be erased.
7. It is the submission of the learned counsel for the complainant/respondent that because of the operation performed by the opposite party alone, the complainant's right leg was lengthened by 2 Cm, which would go to show that he has not adopted the correct procedure, which should be brought under Res iposa loquitor, properly considered, appropriated, compensation was awarded, requiring confirmation.
8. By going through the pleadings, burden of proof, materials produced on behalf of the complainant and careful analyzing the order of the District Forum also, we are of the considered opinion that the approach of the District Forum in this case was not proper, whereas it had approached the case from incorrect direction, resulting erroneous order, warranting our interference also.
9. In a case of medical negligence against the qualified medical professional, it is the basic and fundamental duty of the complainant to prove atleast prima facie that there was medical negligence while performing the duty of the doctor concerned. The complainant is not doctor, that means, he is not an expert. Therefore, ordinarily to prove the case of medical negligence, we expect an expert evidence, to guide us also, since we are also not experts in the medical field. In this case, except the repeated allegations and assertions that the opposite parties had committed negligence, acted carelessly, we find no averments, how and under what circumstances the opposite party committed negligence. It should be stated that the mistake or negligence was in the operation or pre-operative stage, or post operative stage, or in prescriping medicines, or in using the materials, at the time of operation or fixing bones etc.,
10. In Para 6 of the complaint, it is said "The respondent carelessness, negligency and irresponsibility while doing the first surgery at respondent hospital came to the picture, Only during the hip replacement surgery at Chennai". In the previous Paragraph, it is said "Only because of the careless, negligent, irresponsible operation of the respondent, the petitioner developed all problem in the left leg". Thus, it is seen, the medical negligence i.e. improper surgery performed by the opposite party or he used sub-standard materials in the process, appears to have come to light during the second surgery. The records maintained or prepared during the second surgery namely hip replacement should disclose the deficiency caused by the opposite party, then certainly that would be taken as expert evidence, and there cannot be any dispute in our view also. On the other hand, if the Discharge Summary or Case Sheet maintained at the time of hip replacement surgery, fails to disclose the alleged negligence, then the case should be thrown out as not proved. Unfortunately, the District Forum shifted the burden of proof as if everything is upon the opposite party, forgetting the initial burden upon the complainant.
Therefore, the conclusion of the District Forum that the opposite party has not produced any materials or record to show that the materials used by him was either cheap or sub-standard would lead to the conclusion that there was negligence, is in our considered opinion, negligence on the part of the District Forum in giving such a finding against the qualified medical professional.
10. Admittedly, the complainant was admitted in the hospital of the opposite party for treatment, having suffered a fracture in his neck of femur left hip, for which, operation was also performed. In Para 3 of the complaint itself, it is stated "The respondent has done the operation by placing uncemented Bipolar prosthesis in his left hip". It is the case of the opposite party also that he did this kind of operation for treating fracture in neck of femur left hip, placing uncemented Bipolar prosthesis, is an accepted treatment and that is why, it is not faulted as if this treatment was incorrect or something like that.
The medical literature relied on by the opposite party also indicates that for this kind of fracture, Bipolar prosthesis is the method adopted for treating. A qualified doctor when adopted this method and the patient has not reported in shortening or lengthening of the leg for five months or so, would suggest that there was no negligence of any kind. This being the position, we are unable to find any negligence on the part of the opposite party in treating the complainant.
Though an attempt has been to say that the opposite party would have used cheap quality component, resulting loose Bipolar prosthesis, it remains as dead letters in the absence of supportive materials even by the second operation namely hip replacement. Therefore, on the ground that the opposite party should have used sub-standard materials as incorrectly recorded by the District Forum, no negligence could be attributed.
11. The Textbook of Orthopedics and Trauma, Edited by GS. Kulkarni, gives detailed accounts about the "Bipolar Hip Arthroplasty"
and its complications also. One of the complications is "Femoral loosening or migration". This being the accepted complications in this kind of treatment, we cannot attribute medical negligence in the case of lengthening of leg by loosing due to extraneous reasons unless it is made out that lengthening had taken place due to improper or incorrect method adopted by the Doctor who performed the surgery, for which, we have 'NIL' evidence. In this context, we have to see, why the doctor has adopted uncemented Bipolar prosthesis instead of hip replacement, which was done at later point of time.
12. In Para 6 of the Written Version, reasons are elaborately given which reads "Infact this respondent had discussed with a team of doctor consisting Dr.K.G.Ramamoorthy, D.Ortho, Dr.M.Vanasekar, M.Ch., Ortho, Dr.Ayappan, D.Ortho and Dr.Elango, D.Elango, D.Ortho (brother in law of the complainant they considered various factos such age physical condition and hear condition of complainant to with stand the operation and total hip replacement surgery also discussed by the team of doctor, the complainant been heart patient could not withstand the prolonged surgery, hence finally chosen to place uncemented bipolar prosthesis as opt treatment for the complainant". The above allegations are not denied in the affidavit filed by the complainant. If really, the procedure adopted by the opposite party was improper procedure or there was any medical negligence, the brother in law must be the proper person to say, he also being a qualified Orthopedic Surgeon as said in Para 6 of the Written Version.
13. The lengthening of the leg was not reported immediately. As said in Paragraph-3 "Even after several months, the complainant could not walk without the support of stick and developed heavy pain in the surgery part in the leg". Thereafter, alone it is said, it was found that left leg lengthened by 2 cm.
From the pleadings it is clear, the lengthening of the leg came to surface only after four or five months from the date of surgery on 21.10.2004. Admittedly, the complainant had undergone Bypass surgery and thereafter alone hip replacement surgery took place 25.6.2005, which justify the averments in Para 6 of the Written Version. If really, the surgery performed by the opposite party was not medically acceptable or was there any medical negligence or the lengthening had taken place due to careless and negligence act of the opposite party, it should have been revealed in the subsequent surgery and therefore, we have to see the medical records pertaining to the hip replacement surgery.
14. The District Forum in Para 7 of the order had stated that a perusal of records clearly shows that the operation done on the complainant was not properly done and the Bipolar prosthesis was loosening fixed.
We are unable to find any support from the records available for the above observation. The accepted complications in the method is loosening also.
Therefore, there was loosening, resulting lengthening of the leg, which will not lead us to an irresistible conclusion that the Bipolar prosthesis fixed or fitted loosely, resulting lengthening as improperly recorded by the District Forum. Ex.A1 is the admission and Discharge Summary, wherein, the procedures adopted are noted. Either by expert evidence or otherwise, it is not pointed out, which part of the procedure was wrong or did negligently. Ex.A14 is the Discharge Summary for the treatment given to the complainant. In this, under the Heading "History of Presenting Illness", it is said "He has 2Cm lengthening on the left side. His X-Ray left hip showed loose bipolar prosthesis". Here also, no accusation has been made against the previous surgery. Loose Bipolar Prosthesis being admitted complication, mere mentioning of the same will not be a proof positive, to fault the previous surgery. In the procedure also, it is said "Bipolar Prosthesis was loose", which is the accepted complication. Nowhere, in the Discharge Summary, it is said, sub-standard materials were used or cheap quality was used etc., as an attempt has been made to say so, in the complaint. If really, the loosening noted in Ex.A14 had taken place by the negligence operation conducted by the opposite party, nothing would have prevented the complainant, from examining the doctor concerned, or obtaining an affidavit from him to prove the same, which are all absent. Therefore, the observation of the District Forum, probably based upon Ex.A14, that the records revealed negligent act of the first surgery is not acceptable to us. In view of the admitted position, loosening may happen in this kind of treatment, the principal of Res ipso loquitor may not be applicable to the case on hand also, as submitted by the learned counsel for the complainant. Except Ex.A14, other documents related to expenses which are not in dispute. For the above reasons, we conclude that the complainant has not made out a case of any medical negligence whereas the doctor has adopted the accepted procedure without giving room for any negligence which had its own complication due to passage of time, for which, he cannot be held responsible either for the sufferings of the complainant or for the subsequent surgery, which was thought of even previously, but not adopted, because of the heart problem of the complainant, which was later rectified, then followed by hip replacement surgery.
For these reasons, the appeal deserves acceptance.
15. In the result, the appeal is allowed. The order of the District Forum in OP No.69/2005, dt.14.08.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
16. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/bank/fm