K.S. SRIDHAR vs Rajkumar

THE complainant met with a road accident on 2.4.1993 resulting in fracture of left hip joint. He was immediately shifted to Ashwini Surgical Nursing Home, where the OP being Orthopaedic surgeon advised him to undergo hip joint replacement. On his advice, the complainant submitted himself for hip joint replacement on 6.4.1993, done by the OP. After discharge from the Hospital, the complainant continued to have follow-up treatment under the OP as out-patient. Despite the follow-up treatment as advised by the OP, the complainant developed severe pain in his hip joint and found difficult to walk. On inquiry with the OP, he did not receive convincing explanation. Since the pain continued unabated, he consulted other doctors in Bangalore and was informed that his joint replacement ought not to have been performed in his case as such operation is advised only in case of patients above the age of 55 years and not for the patients below 55 years. According to those doctors, the proper treatment that should have given to him was closed reduction by immobilising fractured site. THE complainant also contends that those doctors advised him to undergo further surgery for internal fixation. Accordingly, the complainant claims to have undergone corrective surgery in other Hospital incurring additional expenditure. Hence the complaint seeking direction to OP to pay compensation of Rs. 10,00,000 alleging deficiency of service against the OP.

INITIALLY, the OP, having appeared in pursuance of the notice issued by this Commission, did not choose to file version or to produce evidence. Based on the evidence produced by the complainant, this Commission passed order dated 20.7.2001 partly allowing the complaint and directing the OP to pay compensation of Rs. 50,000 for the medical negligence committed by the OP. Aggrieved by that order, the OP preferred Appeal No. 3 of 2002 on the file of the National Consumer Disputes Redressal Commission, New Delhi. The complainant also preferred Appeal No. 291 of 2001 contending that the amount of compensation awarded by this Commission is too low. The National Commission, by order dated 20.1.2006, remanded the matter to this Commission for fresh disposal on merits after affording reasonable opportunity to the OP to file his version along with his evidence. The National Commission, however, ordered the OP to pay Rs. 50,000 as cost to the complainant.

After remand, the OP filed version along with his affidavit mainly contending that the complainant was employed in a bank and had to resume to work in 12-15 days and had requested the OP adopt such procedure by which the complainant could be made ready to resume work within 10-15 days. OP has contended that it was explained to the complainant in detail with diagram that the applications of plaster would not help him and he would be confined to bed for a long time. The complainant was also explained as to how surgery would be conducted and the procedure involved therein. He was informed that the fracture has to be fixed internally with pins and no weight can be put on the limb until the fracture completely gets united and under such procedure it was not possible for the complainant to resume work within 15 days. OP also contends that he gave further explanation to the complainant that after surgery there were chances of his developing vascular necrosis or non-union of the head of the femur and one more surgery would be required and it was not possible to predict the result at that stage. After hearing that in detail, the complainant enquired with the OP whether he could undergo any other surgery and by undergoing such surgery whether he could be able to resume his duties within 15 days. At this query, OP replied that Hemi Arthoplasty is not a surgery to be performed on a person of complainant''s age and even if it is performed, there would be restriction of movement. OP contends that complainant was also explained, in detail, the pros and cons of replacement by Austin Moore Prosthesis. It was also explained to the complainant that such procedure was not foolproof and he might have to undergo another surgery later on as there would be lot of wear on the hip joint. Four days later, the complainant is said to have insisted upon Hemi Arthoplasty fully knowing the pros and cons and the complications involved as he had to get back to his work within 15 days. The OP further submits that the pros and cons of various types of surgery were explained to the complainant in the presence of Dr. Prakash who is a Senior Surgeon and the owner of the Nursing Home. At that time, another orthopaedic surgeon Dr. Vishveshwaramurthy who assisted the OP in doing the surgery was also present and that the complainant was accompanied, at that time, by his wife and one more person. The OP, therefore, contends that though there were two options available, the procedure of Hemi Arthoplasty was adopted because the complainant had to get back to work within 15 days and because the complainant insisted upon to go in for such procedure. The OP, therefore, contends that since the procedure was adopted with the informed consent of the complainant, blame cannot be put on the OP. He, therefore, denies deficiency of service.

ON the side of the complainant, the complainant has produced his own affidavit and has also got marked as Exts. C1 to C13 and has further produced a copy of the order of the Karnataka Medical Council dated 29.1.2004 in support of his case. He has answered the interrogatories served on him. The OP has answered the interrogatories served by the complainant on him. We have heard the arguments of both sides. The points that arise for our consideration in this case are that- (i) Whether the complainant has proved deficiency of service on the part of the OP? (ii) What relief? Points 1 and 2 :

IT is the definite case of the complainant that after the operation by the OP adopting the procedure of Hemi Arthoplasty by way of replacement of Austin Moore Prosthesis, he continued to have pain at the hip joint and then he made inquiry with the other doctors and he was told that the procedure applied on him was not the proper procedure to be applied on person below the age of 55 years. In other words, the procedure called Hemi Arthoplasty by replacing Austin Moore Prosthesis was advised only in case of patients above the age of 55 years. The complainant contends that even if his consent was obtained for the procedure, such consent was not an informed consent as he is only a layman and such consent cannot be held to be binding on him. IT was further argued on behalf of the complainant that it was for the OP, who is an orthopaedician to have applied the correct procedure and the OP should not have relied upon the consent of the complainant because the complainant is a layman and the OP was knowing very well that such procedure was not the correct procedure to be adopted in the case of a patient below the age 55 years. The complainant, therefore, contends that the OP cannot pass on the blame on the complainant for the deficiency committed by the OP himself. The OP does not dispute that the procedure of Hemo Orthoplasty by replacement of Austin Moore Prosthesis is a procedure to be applied normally in case of patients above the age of 55 years. OP is very well aware that the said procedure is contra indicated in case of patients less than 55 years. OP has no dispute that the complainant was within the age of 40 years at the time of the treatment. The OP, however, heavily relies upon the consent said to have been given by the complainant for the procedure of Hemi Arthoplasty. Copy of the consent letter said to have been obtained from the complainant is produced at Ext. C1a wherein it is said that the complainant Sridhar has consented to undergo the operation of Austin Moore Prosthesis of left hip for fracture neck of femur, the nature and purpose of which have been explained by Dr. R. Rajkumar and that the complainant has also consented for such further or alternative operative measures as may be found necessary during the course of above mentioned operation......... The document also shows that one doctor has signed that document confirming that he has also explained the nature and purpose of the operation to the patient as described by Dr. Rajkumar. In para-9 of the version, OP has stated that at the time when the complainant gave his consent for the operation, Dr. Prakash was present and he had also explained to the complainant the various options that were available to the complainant. He also stated that Dr. Vishveshwaramurthy was also present at that time. None of these doctors have been examined as witness in support of the case of the OP. The consent letter itself does not say that such doctors have explained the various options that were available to the complainant. OP does not have a case that he had explained to the complainant that the procedure of Hemi Arthoplasty by Austin Moore Prosthesis is contra indicated in respect of patients less than the age of 55 years. Under such circumstances, we are of the view that the defence set up by the OP that the complainant was explained about the options and the complainant was explained that Austin Moore Prosthesis was contra indicated for patients below 55 years of age and further that the complainant gave his consent for Austin Moore Prosthesis after knowing all such facts cannot be accepted.

WE are of the further view that even if the complainant wanted to get back to his duties within 15 days, it was not proper on the part of the OP to have conducted such procedure which was contra indicated for patients of the complainant''s age group, when the OP was very well aware that such procedure may lead to further complications. Under such circumstances, we conclude that the OP has committed deficiency in choosing wrong procedure for the treatment. This conclusion is also fortified by the order dated 29.1.2004 passed by the Karnataka Medical Council wherein the Medical Council has agreed with the contention of the complainant and has administered a warning to the OP to consider the pros and cons and the age of the patient before replacing hip joint by Austin Moore Prosthesis. Under such circumstances, we answer point No. 1 in favour of the complainant.

COMING to the quantum of compensation, the complainant has claimed compensation of Rs. 10 lakh from the OP. Complainant has also produced some letters and certificates under which he claims to have spent money for treatment and further treatment. Admittedly, the complainant was working as a clerk in Vijaya Bank and naturally he had the facility of medical reimbursement from his employer. It is not his case that he did not get the benefit of reimbursement of the cost of medical treatment from his employer. It is worthy to note that the Hon''ble National Commission has already awarded cost of Rs. 50,000 in favour of the complainant. Under such circumstances, we are of the view that awarding a further amount of Rs. 50,000 by way of compensation and cost would meet ends of justice. In the result, we pass the following order. ORDER The complaint is partly allowed. The OP is directed to pay compensation of Rs. 50,000 (Rupees fifty thousand only ) to the complainant. The payment shall be made within 30 days. On failure to pay the amount within 30 days, the amount shall carry interest @ 10% p.a. from this day till the date of payment. Complaint partly allowed.