(These two appeals having come before us for final hearing on 28.06.2012, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following :-)
A.K.ANNAMALAI, JUDICIAL MEMBER.
1. The opposite parties and the complainant are the appellants in both the appeals respectively.
2. The complainant got admitted with the opposite parties for the injuries sustained due to road accident on 26.09.2008 at Kovilpatty and after availing the First Aid treatment at the Government Hospital, the complainant got admitted in the first opposite party hospital on the same day and after taking Xray,. C.T.Scan, and other tests on 27.09.2008, the scan taken revealed comminuted fracture in left distal femur posterior angulated fragments and adjacent inter-muscular hematoma causing compression of left femoral artery and veins, critical stenaris with abrupt cut off in left distal femoral artery at adductor canal larel, thin strew flow in left politeal artery and no significant flow in distal follow through arteries of left lower limb (below the politeal artery) and there was no distal pulsation and sensation in left lower limb and other details relating to the blood circulation by exposing no significant flow in distal follow through arteries of left lower limb. Only on 27.09.2008, the opposite parties 2 to 4 found that there was no distal pulsation and sensation in the left lower limb without diagnosing regarding the failure of blood circulation immediately kept quite for 2 days and after giving note the negligence they referred the complainant to Meenakshi Mission Hospital, Madurai and without informing to the patient anything about the same and without furnishing the case sheet. At the Meenakshi Mission Hospital, Madurai, the complainant undergone further treatment and because of the failure of blood circulation no sensation in lower limb in order to save her life, the left leg was amputated on 28.09.2008 and on 18.10.2008 she was discharged and shifted to Christian Medical College Hospital, Vellore for fixing artificial leg (Arthotic) and thereby the complainant had claimed a total sum of Rs.47,43,270/- including loss of income and mental agony etc., and restricting the claim to Rs.20,00,000/- the complainant filed the complaint before the District Forum and after an enquiry on the basis of both sides materials the District Forum allowed the complaint directing the opposite parties jointly and severally to pay a sum of Rs.4,00,000/- as compensation to the complainant towards mental agony and for medical expenses and also Rs.5000/- as cost of the complaint.
3. Aggrieved by the order of the District Forum, the opposite parties contended that there was no negligence on the part of the opposite parties in treating the complainant when she was in their care and taken all possible steps for the same and referred the complainant for further treatment to Madurai Hospital and the District Forum found negligence only regarding the non issuance of case sheet to the complainant at the time of referring the case to the Madurai Hospital and as per Medical Ethics Regulations formulated by Medical Council of India Notification Regulation No.10 D (3) clause (b) only at the request of patient or the authorized attendants medical records should be issued within 72 hours and in this case no such request was made and thereby the District Forum erroneously found fault with the opposite party and allowed the complaint and thereby the appeal came to be filed in F.A.No.389/2011.
4. Whereas the complainant not satisfied with the award of Rs.4,00,000/- given by the District Forum by allowing the complaint filed the appeal in F.A.No.493/2011 claiming to allow the entire claim of Rs.20,00,000/- as claimed in the complaint by way of enhancement in this appeal.
5. Since both the appeals are arising from one and the same complaint filed and against the same order of the District Forum, Tirunelveli in C.C. No.18/2010 and the subject matter is the one of the same except the question of awarding of compensation, these appeals are taken together for the purpose of hearing and after hearing both sides arguments, averments, and contentions and on perusal of District Forum order and materials placed before us the following common order is passed on merits.
6. It is admitted case of both sides that the complainant had met with an road accident on 26.09.2008 at Kovilpatty sustained fracture at her left leg and having availed earlier treatment at the Government Hospital and subsequently got admitted on the same day at 12.55 p.m. with the 1st opposite party hospital in which the opposite parties 2 to 4 have given treatment to the complainant till 28.09.2008 till the early morning of 28.09.2008 and thereafter the complainant was shifted to Madurai Meenakshi Hospital for further management where her left leg was amputated to save her life. These facts are all not in dispute by the opposite parties. Further, it is also not in dispute that the complainant was not furnished with the case sheet at the time of discharge or shifting of the patient to Madurai on 28.09.2008 for which the opposite party contended that they have given referral letter to Madurai Meenakshi Mission Hospital and the Medical Officer along with other medical staff accompanied with the complainant to Madurai. In those circumstances, it is to be considered whether the complainant’s amputation of left leg was compelled or forced in order to save her life only because of the negligence of the opposite parties in not giving proper treatment at their hands when she was admitted on 26.09.2008 and undergone treatment till 28.09.08.
7. The contention of the opposite parties that the District Forum observed that because of non furnishing of case history sheet negligence was established and the case sheet referred actually submitted before the District Forum under Ex B1 would disclose the nature of the treatment given and on perusal of the District Forum order the observation in para 9 that ' the contention of the counsel for the complainant that Ex B1 has been prepared subsequently by the opposite parties to suit their case seems to be acceptable in the circumstances cited above and also the observation was made after discussing details of treatment given at Madurai Meenakshi Mission Hospital under Ex A4 and the details relating to the MRI, Anjiogram taken on 27.09.2008 since the opposite parties found in duty that there was abrupt cut off in the distal femoral artery and when the complainant was admitted at Meenakshi Mission Hospital, Madurai , Gangrene fractures were formed and the complainant was left with no other option except to amputate in order to save her life'. While considering those aspects even if the case sheet submitted by the opposite party under Ex B1 as true and genuine one prepared then and there when the complainant was under their treatment, the details of treatment recorded under Ex B1 for the date from 26.09.2008 till 28.09.2008 at 04.45 A.M. for the treatment given from '27.09.2009 would disclose the following details. ' 27.09.2008 at 8.00 A.M. & 11.00 A.M. Patient semi conscious, restless, confused, dressing soakage At 2.00 p.m. Dorsalis Pedis Pulasafor not palpable. Posterior tibial Polarization not palpable. Posterior tibial Polarization not palpable. No decolouration of toes, Hand held Doppler used for arterial palsafor left Dorsalies Pedis. No evidence of pulsator, plan emergency, M.R.I. Angiogram. At 2.30 p.m. call attended and at 4.30 p.m. the same condition prevailed and after 7.00 p.m. receipts of MRI Scan patient awaken disoriented and as per MRI, Angiogram critical situation with abrupt cutoff in left distal femoral artery adduction canal, the need for urgent vascular surgery and the need for shifting to higher centre was explained to the attender ' and thereafter at 10.30 p.m. as per nurses daily records progress sheet recorded as ' to give blood transfusion, continue 150 ml to shift Meenakshi Mission Hospital, CSI at 12.00 A.M. Cardiac Monitor SVF 150 ml/ the on flow pulses area not felt . G.L. is maintained 2.00 a.m. patient on cardiac monitor. At 4.45 a.m. S.G. Sir Advise CST Pt Shifting to MMC '. From those recorded details, it is clear even though the patient was admitted on 26.09.2008 at 12.55 p.m. since the failure of blood circulation was not fund out by taking necessary testes immediately and even after taking necessary steps by way of MRI was only on the next day at 7.00 p.m. and found that there was no in blood circulation on the left femoral part of left limb joining which needs immediate emergency vascular surgery. Even though the opposite party counsel contended since the vascular surgeon from Madurai was called for and awaited for his arrival as he did not turn up the patient was subsequently shifted to Madurai Meenakshi Mission Hospital and no such details were found recorded in the case sheet Ex B1 would disclose that there was an emergency vascular surgery required even at 7.30 p.m. on 27.09.2008 itself and instead of immediately shifting the patient to the Madurai Meenakshi Medical Hospital for which it was also recorded on 10.00 p.m. by nurse as per the case details of the progress sheet of the nurses till 4.45 a.m., the patient was not shifted for which no acceptable reason was explained by the opposite party for not admitting at Madurai Meenakshi Mission Hospital at once. Even though the oral evidence of RW2, Dr. Ragu Raman disclosed that he was contacted on 27.09.2008 in the night and asked to bring the patient on 28.09.2008 it was not explained whether he was informed about the critical condition of patient at that time and needed immediate attention. On perusal of the history sheet furnished by Madurai Meenakshi Mission Hospital under Ex A4 in discharge summary it was mentioned that the patient was referred for further management was initially treated etc. and found astotars, on 28.09.2008 and ' the patient complaint pain left leg with inability to move left lower limb and on diagnosis. It is observed Grade III C’ comminuted compound (Type III C) Popliteal articling Gangrene left leg and foot septicemia.' From the details, it is clear at the time of admission at Madurai Meenakshi Mission Hospital Gangrene already set at her left leg and for this treatment was given on 28.09.2008 itself and observed under the head treatment' under GA Amputation of left leg above knee was done and for further management to fix artificial leg at CMC Vellore, the patient was sent'. On perusal of further details of discharge sheet under Ex A4 under the head 'course' of treatment given it would disclose as follows: 'Patient came with H/o Trauma with injury to left leg, treated elsewhere for 2 days Patient came with no distal pulsation and sensation in left lower limb. Patient disoriented at the time of arrival in this hospital CTS Opinion obtained who opined that vascular reconstruction was feeble Decided to do an amputation to save life. However, before amputation, fasciotomy of leg was done which revealed muscle necrosis in all compartments of leg. At time of discharge, there is a small raw area in the lateral aspect of stump. No. frank signs of infection/inflammation. Needs dressings once in 2 days. Patient’s attendants advised about the same.' From these details, it is found that even the vascular reconstruction was feeble in time and thereafter the amputation was made to save the life. If really, the opposite parties are interested with the admitted patient since finding the seriousness from MRI Scan, Angiogram was considered on 07.30 p.m. on 27.09.2008 and after recording the emergency treatment required even after 7.30 p. m till 04.45 A.M. on the next day on 28.09.2008 did not act that when the contention for vascular surgery by making arrangements to get the vascular surgeon was not materialized as contended by the opposite parties will prove that as per recordings under Ex B1, the patient was allowed to be kept idle under their custody till such time for more than nine hours had caused damages, to become more severe and cost her to loose her left leg which was amputated in order to save her life. This would disclose clear proof for negligence on the part of the opposite parties in giving treatment to the complainant when she was in their custody and care for treatment.
8. The opposite parties relied upon the medical literature relating to the ‘ Gangrene’ material obtained from the website under 'medicine Net com' with which the learned counsel tried to explain different types of Gangrene and in this case to point out as follows:
'Infrequently, dry gangrene can occur quickly, over a few hours to days, when a rapid arterial blockage occurs ( for example,. Arterial blood clot in the blood suddenly occludes a small artery to a toe). Dry gangrene often produces cool, dry and discolored appendages (sometimes termed 'Mummified) with no oozing fluid or pus, hence the term 'dry'. X-rays CT., or MRI studies are done to see how floral gas or narcosis (or both) has progressed from the local site. These studies are often done to help determine the extent of gangrene in both limb and internal types of gangrene. For dry gangrene, vascular surgeons often do angiography ( radiologic study) with dye that shows arterial blood flow in tissues, also termed arteriogram) to see the extent of ongoing or potential arterial blood loss to tissue'. As per the above details, in this case, since no symptom of oozing or puss found out and the delay cannot be considered as for delayed treatment. we have carefully gone through the medical literature in this regard. Further, under Ex A4, treatment at Madurai Meenakshi Hospital under the diagnoses it is not stated whether the gangrene was wet or dry and in this circumstance, the opposite parties cannot assess that it was only dry gangrene and well within para meters for the treatment. Further, the learned counsel for the appellant contended under the Code of Medical Ethics Regulations, 2002 formulated by Medical Council of India notification dated 11.03.2002 under the Topic I Regulations under the topic I (B) (i) (iii) maintenance of Medical Records, it is stated that ' if any request is made for medical records either by patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within a period of 72 hours'. In this case, it is contended that since no such request was made from the side of the complainant no records were issued at the time of transferring of patient to Madurai Meenakshi Mission Hospital which cannot be considered as negligence as pointed out by the District Forum . In general and as a principle, the same contention can be accepted when the patient is discharged from the hospital in the normal course at the time of discharge and subsequently the said records could be made available on request. As far as our case is concerned, the patient was in the emergency condition hurrying for further treatment to save her life and there may not be any chance for such request to be made at that point of time and even it is the duty of the opposite party while shifting patient to another hospital for better management, the entire case sheet or referral letter must be accompanied with details of all treatments already given and in this case even though the said reference letter was said to have been sent to Madurai Meenakshi Mission Hospital, the opposite parties have not taken care to produce the same or copies of the same before the District Forum or even before this Commission to prove their genuineness and in this regard under Ex A4 discharge summary given by Madurai Mission Hospital even though reference was made recorded that referring the patient was by the opposite parties, no proof available to show that the said referral letter was enclosed or given. In those circumstances, the contentions of the appellants on this ground will not hold good in their case, we are of the view that the negligence on the part of the opposite parties in treatment to the complainant when she was under their care and custody was established before the District Forum by the complainant with supporting materials and the District Forum after considering all the aspects and after analyzing the details in deep came to the conclusion that the opposite parties are in negligence and in its finding, we are not inclined to set aside the same in view of the forgoing reasons and detailed discussions made as above. Regarding the question of compensation is concerned, the complainant has stated that they have spent more than Rs.3.5 lakhs towards the treatment with the opposite parties and subsequent treatment at Madurai Meenakshi Mission Hospital and also at Vellore CMC for further management and in those circumstances even though, the complainants have claimed a sum of Rs.20,00,000/- as compensation, the District Forum awarded a sum of Rs.4,00,000/- as total compensation towards medical expenses and for mental agony and sufferings and Rs.5000/- as costs. We are of the view that this award of compensation and costs are all normal and reasonable. Hence, with which finding also we are not inclined to interfere except the question of interest to be awarded for compensation.
10. In the result, the appeal filed by the opposite parties in F.A.No.389/2011 is liable to be dismissed and accordingly, the F.A.No.389/2011 is dismissed by confirming the order of the District Forum in C.C. No.18/10 Trinelveli District subject to the finding in F.A. No.493/2011 regarding the quantum of compensation with interest.
11.In this appeal, the complainant claimed Rs.20,00,000/- and to set aside the order of the District Forum as regarding the quantum of award of compensation and costs was not granted by the District Forum as prayed for in the complaint.
12. On perusal of the complaint, the complainant has prayed for direction for compensation of Rs.20,00,000/- with future interest at the rate of 18% from the date of application and for the costs. While allowing this complaint, the District Forum after considering the materials submitted by the complainant regarding the expenses for amputation and for treatment under Exhibits A5 to A22 bills for various expenses relating to the opposite parties hospital, Madurai Meenakshi Mission Hospital, CMC Hospital, Vellore, has given award of Rs.4,00,000/- including for the expenses e
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ven though the complainant claimed he had spent more than Rs.3,50,000/- as per receipts under Exhibits A5 to A22 even though those bills did not disclose to such extent even for Rs.3,00,000/-. The District Forum by consolidating the expenses with compensation had awarded Rs.4,00,000/- total compensation and a sum of Rs.5000/- also awarded as costs and in the interest of justice, we are of the view, that the complainant could be awarded above said compensation with interest which was not awarded by the District Forum and to that extent alone, the appeal of the complainant to be allowed by modifying the order of the District Forum as follows: 'The opposite parties 1 to 4 are jointly and severally liable to pay a sum of Rs.4,00,000/- to the complainant as compensation for mental agony and towards medical expenses and loss and sufferings caused to her with 9% interest per annum from the date of filing this appeal i.e., on 21.04.2011 till the date of payment and confirming the award of the District Forum to pay cost of Rs.5000/-. These amounts shall be paid within two months from the date of this order failing which the appellant/complainant is entitled for 9% interest from the date of default. No order as to costs in this appeal. F.A.No.389/2011 : In the result, the appeal is dismissed by confirming the order of the District Forum, Trinelveli in CC No.18/2010 and subject to the order issued in F.A.389/2011. No order as to cost in this appeal. F.A.No.493/2011: In the result, the appeal filed by the complainant in F.A.No.493/2011, is allowed confirming the order of the District Forum, further granting interest at the rate of 9% per annum on Rs.4,00,000/- from the date of filing this appeal i.e., 21.04.2011 till realization, failing which the default interest of 9% should be paid by the opposite parties from the date of default till realization. There will be no order as to costs in this appeal. F.A. No. 389/2011 filed by the opposite parties is dismissed subject to the order passed in F.A.No.493/2011.