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Judgment
THIS is an appeal against the order dated 10th April, 1992 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in O.P. No. 199 of 1991 by which the complaint filed by the present Appellant R. Gopinath (hereinafter referred to as the Complainant) against the present Respondents was dismissed.
AT the present order is affirmation of the order passed by the State Commission we may narrate the facts only briefly. The facts as alleged in the complaint are that the Complainant, who is an Advocate, met with a motor accident on 26th October, 1989 at about 6.20 p.m. A lorry belonging to Metropolitan Water Supply & Sewerage Board had run over the right ankle of the complainant. He was immediately taken to Devaki Hospital belonging to the first Respondent. The duty Doctor attended on him. The complainant requested for an Orthopaedician''s attendance and service but only a Anesthetist attended on him. X-rays of the injured part of the right leg of the complainant were taken from different angles. The complainant was given Fort win injection as a pain killer. The injury was bandaged very tightly and the leg was kept on a stand without any movement. In spite of the sedation the complainant started shouting and crying on account of severe pain. The Doctors at the hospital and the staff refused the request of the complainant and his wife, who had come later on hearing about the accident, to get an opinion from an Orthopaedician. The Complainant was kept continuously under sedation. On 27th October, 1989 at about 8.00 p.m. Respondent No. 2 Dr. K. Chockalingam examined the complainant. On the next day at about 8.30 a.m. a dose of Calmpose was administered by the Doctor of the hospital as the complainant was complaining of severe pain. Thereafter, the complainant''s wife and his Advocate colleagues insisted for treatment under an Orthopaedic Specialist. Without informing the complainant''s wife and his colleagues the complainant was taken to the Operation Theatre on the same day i.e. on 27th October, 1989 in the afternoon and was put under anesthesia and was operated upon by Respondent No. 2 Dr. K. Chockalingam. After operation the complainant was brought out and taken for post operative cafe. The complainant''s wife and his Advocate friends questioned the act of Respondent No.2 who is alleged not to be an Orthopaedician, in performing the operation without getting their consent. They were informed by the hospital staff that they had obtained the consent of the complainant himself. It may be mentioned here that according to the complainant, his wife and colleagues had gone out of the hospital at about 12.00 noon on that day for getting an Orthopaedician''s opinion. The complainant''s wife and his Advocate colleagues obtained X-rays reports and Radiologist''s reports from the hospital and contacted Dr. Ardhanari, M.S., Orthopaedician forgetting his second opinion as they had noticed that the method of medical care and treatment given to the complainant was not satisfactory. On the advice of Dr. Ardhanari the complainant was shifted to Vijaya Hospital for proper medical care and treatment by Dr. P.V.A. Mohandas at 8.30 p.m. on 28th October, 1989. (It may be mentioned here that the discharge of the complainant from Devaki Hospital was obtained by his wife and friends against medical advice at 8.00 p.m. on 28.10.1989.) Dr. Mohandas on the same night opened the plaster applied at the operated leg of the complainant at the Respondent''s hospital and found the formation of Haematoma and infection which according to the said Doctor was the cause of pain. Dr. Mohandas evacuated Haematoma and left the wound open. On 30th October, he removed the fixtures done in the Devaki Hospital and fixed fixtures in his own method. The wife of the complainant gave her consent for this second surgery.
According to the complainant the operation performed on 27th October, 1989 by the Respondent No. 2 was technically defective and was without proper reduction of the fracture and a defective technique had been adopted to hold the fractured pieces together. Thus according to him the second Respondent committed professional negligence in discharging service to the complainant. In spite of constant and continuous physiotheraphy and all other treatment the complainant could not return to normality. On 10th August, 1991 the complainant again contacted Dr. P.V.A. Mohandas as the former had pain and swelling around his right ankle. The said Doctor opined as follows : "There is evidence of synovitis. The present X-ray shows evidence of non-union of medial malleolus. The fracture shaft of fibula is united. The articular surface of the tibia is irregular. There is sub-chondral sclerosis. The articular surface of the talus is also completely eroded and irregular. There is sub-chondral sclerosis".
Dr. Mohandas advised him to see him after three months.
ACCORDING to the complainant, Respondent No. 2 did not act with reasonable degree of skill and knowledge nor he took any care in deciding the course as well as in the administration of treatment. The Respondents are also guilty of professional negligence as they committed delay in making appropriate timely diagnosis and carrying out proper and qualified treatment, particularly when the second Respondent was not an Orthopaedician. The skin gangrene could have had serious consequences resulting in amputation had the second operation not been performed by Dr. Mohandas. ACCORDING to the complainant he suffered great mental agony and pain and has to suffer physical infirmity for the rest of his life and this has prejudiced his professional advancement and earning capacity as a lawyer. He, therefore, prayed for compensation to the tune of Rs. 6 lakhs. The Respondents filed a joint counter refuting the allegations made by the complainant. It was admitted that the complainant was brought to the Devaki Hospital and about 7.05 p.m. on 26th October, 1989 with injuries in the right leg. The Complainant did not express any wish to be attended by an Orthopaedician. Dr. M. Jagannath, Senior Consultant, Anesthesiologist in the Casualty Department attended the Complainant. The said Doctor is M.B.B.S. and holds degree in Anesthesiology. He is the most competent person to attend the cases of emergency particularly when a patient comes to the hospital in a state of shock and to revive him the services of Anesthetist is required. Dr. M. Jagannath attended on the complainant immediately and prescribed treatment including medicine and directed admission in the hospital. The Complainant was later on seen by the duty Doctor during their shifts. X-rays were also taken. The Traffic Police was also informed. The wife of the Complainant was fully aware of the nature of injury i.e. the fractured tibia (right) and fibula (right). Immobilisation is part of the treatment of the fracture which was done to the complainant by putting his leg on the splint with elevation of the limb to prevent swelling (oedema) which is a part of the pathological changes in the process of injury to tissues. The duty Doctor clearly informed the people accompanying the patient that there was fracture and he had to be admitted immediately. A message was sent to Respondent No. 2-Dr.K. Chockalingam at 7.55 p.m. and he gave the instructions to give the same treatment with eleviation of the leg. At 8.00 a.m. on 27th October, 1989 the second Respondent examined the complainant and explained in detail that the fracture could be set right only by surgery and gave instructions to the staff to prepare the patient for operation (plating) at 3.00 p.m. and take consent of the patient and it was obtained immediately. The operation was done by the second respondent at 3.00 p.m. after pre-medication and the patient was brought out of the operation theatre at 1.30 p.m. At 9.00 p.m. the patient was in comfortable state and an injection of Fort win was given at 10.00 p.m. The second Respondent gave post operative instructions and the complainant was kept under constant observation. He was discharged on 28th October, 1989 against medical advice and the complainant''s wife had given an undertaking in writing to the effect that she would not hold the hospital responsible or other staff responsible for any consequences. It was not true that the complainant''s wife made a request to get an Orthopaedician''s opinion. The second Respondent is competent and has professional skill and vast experience to deal with cases of this nature. He is a person of great reputation in this country as well as abroad and is known for his knowledge of the subject in Traumatulogy and especially in trauma Orthopaedics. He is a highly qualified trauma surgeon and an F.R.C.S. Edinburgh, and has worked in reputed hospitals in U.K. under the guidance of several leading medical experts in particular Drs. Gordan Walker and John Brighton. He is Hony. Assistant Professor of the General Surgery, Madras Medical College and is now Chief Surgeon of the Devaki Hospital. He is the Secretary of the Royal College of Surgeons, Edinburgh and is a Member of the Committee for prevention of accidents in Madras City. He has attended several international Conferences in Brighton, England, U.S.A., Australia, Nairobi etc. He was the guest of Honour of the Second Annual Trauma, Anesthesia and Critical Care Symposium at Baltimore, Maryland, U.S.A. in 1989 and attended Symposium on Emergency Medicine in Beijing in 1989. He is also member of the International Association for Accident and Traffic Medicine and a member of the British Association for Immediate Care, U.K. and Association of Surgeons of India.
IT was further alleged by the Respondents that the complainant himself gave consent voluntarily for the surgery while he was conscious . The wife of the complainant knew about it and said that she would go back to her house and make arrangement for her child and return before the surgery commenced. The complications which are now said to have developed might be due to the second operation and on account of complainant''s not following the post operative instructions of the second Respondent. When the complainant''s wife insisted on 28th October, 1989 that the complainant should be discharged immediately, the Respondents informed her that it was not advisable to discharge the patient after the major operation and that proper post operative care was necessary. She was warned about the risk of infection outside the hospital and that there was every possibility of further complications due to the movement of the leg and the operated area. On account of the attitude of the wife of the complainant and his Advocate colleagues the complainant was discharged at about 8.00 p.m. on 28th October, 1989 against medical advice. Despite thereof, post operative instructions were given, surgical treatment rendered by the second Respondent was proper and suffer from no deficiency. Other allegations of the complainant were also denied. Before the State Commission the complainant examined Dr. P.V.A. Mohandas as a witness and tendered documents A 1 to A 17. The Opposite Parties i.e. Respondents examined Dr. K. Chockalingam as their witness and tendered documents P 1 to P 15. At this stage we may mention that the complainant in the Memorandum of Appeal has averred that he had proposed to examine himself, his wife and his Advocate colleagues as witnesses to establish that they constantly insisted for an opinion of Orthopaedician to diagnose the injury and the extent of fracture and to decide the nature of treatment and surgery and also to establish that he was suffering from severe pain even during 27 hours of post operative period when he was very much under the care of the Respondents but the Commission rejected his request and permitted the examination of Dr. P. A.V. Mohandas only. This allegation of the complainant that he wanted to examine other witnesses in addition to Dr. Mohandas is not supported by any affidavit. His Counsel before the Commission has also not filed any affidavit to the effect that the complainant had made a request to examine himself, his wife and his Advocate colleagues. Therefore, we are not going to give any weight to this allegation of the complainant made in the Memorandum of Appeal. This allegation appears to have been made by the complainant to meet the remark of the State Commission that there is no evidence on the side of the complainant to substantiate his claim that he wanted an Orthopaedician to attend on him and that there was also no evidence oral or documentary to substantiate his allegation that he was suffering from intolerable pain and the Opposite Parties turned a deaf ear and blind eye to his condition. The State Commission considered the evidence led by the Opposite Parties and held. 1. That there was no delay in performing the surgery on the injured leg of the complainant. 2. The complainant himself had given conscious and voluntary consent for the surgery. 3. Respondent No. 2 Dr. K. Chockalingam was a competent surgeon fully equipped to deal with trauma cases involving Orthopaedic surgery and even PW 1 Dr. P.A.V. Mohandas who is undoubtedly an eminent Orthopaedic Surgeon has not in his testimony cast any shadow or doubt on the credentials of Dr. K. Chockalingam in dealing with Orthopedic cases. 4. It is seen from the evidence that there are two methods of surgery particularly in cases of this type of Orthopedic surgery and both the methods are well recognised. Dr. K. Chockalingam followed the technique prevalent in United Kingdom while Dr. Mohandas followed the technique adopted in America. Both these techniques are well recognised. 5. There was no evidence that the complainant suffered severe pain and even if it was so it was due to his discharge from the Devaki Hospital against medical advice as in Orthopaedic surgery the limb immobilisation of the operated joint and the eleviated position of the limb are necessary in order to pervent oedema and venus oozing and consequent pain. These precautions were thrown to the winds by the adamant attitude of the complainant''s wife in insisting upon the discharge of her husband against medical advice. 6. The gangrene on the affected part could have developed subsequent to the discharge of the complainant from the Devaki Hospital and it may be due to several other factors such as injury sustained by the complainant in accident and second Respondent cannot be held guilty of any negligence in the operation performed by him. 7. Dr. K. Chockalingam has asserted that there was absolutely no necessary for second operation and if the patient had been left undisturbed he would have recovered fully and Dr. Mohandas has nowhere stated that the operation performed by the second Respondent suffered from any irreversible or irreparable defect so as to necessitate second operation. There was no evidence that the present condition of the complainant is due to the operation performed by Dr. K. Chockalingam. 8. As a result of the above findings, as noticed earlier, the State Commission dismissed the complaint. Feeling aggrieved the complainant has come before this Commission by way of this appeal.
WE have heard the learned Counsel for the parties and have carefully gone through the evidence, we do not find any ground to differ from the findings arrived at by the State Commission. According to the bio-data of Dr. K. Chockalingam he is a qualified person in trauma and accident cases which implies that he has proper skill in dealing with Orthopaedic surgery.
IT also cannot be said that the technique adopted by No. 2 Dr. K. Chockalingam is not well recognised. Even PW 1 Dr. Mohandas himself stated thus: "Method adopted by the Second Opposite Parties in fixing the fracture is also an acknowledged method. What Opposite Party 2 did is one method, what I did is another method". The following observation made by Mr. Justice Barrie in Moore v. Lewisham Group HNC (1959) quoted by the State Commission applies to the present case: "When there are two genuinely responsible schools of thought about the management of a clinic situation, the Courts could do no great disservice to the community or the advancement of medical science than to place the hall mark of legality upon one form of treatment."
Therefore, when there is no evidence to show that the technique adopted by Dr. K. Chockalingam is not a well-recognised technique it is difficult to hold that the said Doctor is guilty of any negligence or deficiency in performing the operation.
THERE is also no evidence to show that the present condition of the complainant is due to any defect in the surgery performed by Dr. K. Chockalingam. Even PW 1 Dr. Mohandas in his statement admitted: "I cannot say whether the defects I have mentioned in Exhibit A 16 are the result of the first operation at Devaki Hospital or the second operation, or the cumulative result".
Thus there is nothing on the file to show that Dr. K. Chockalingam is responsible for the present condition of the Complainant. The complainant has also complained about medicines given to him before the surgery. PW 1 Dr. Mohandas who has been examined by the complainant has nowhere stated that the medicines prescribed by Devaki Hospital for the complainant were not proper.
ALL the evidence has been exhaustively discussed by the State Commission and we do not propose to tread on the same grounds again. We fully agree with the conclusions arrived at by the State Commission. Accordingly we dismiss the present appeal with costs which we assess at Rs. 10,000/-. Complaint dismissed.