1.Dr. Ashok Kumar Y.G V/S Mrs. Shrilatha Hegde, - Consumer Court Case

Karnataka

Dakshina Kannada

CC/144/2011

Mrs. Shrilatha Hegde, - Complainant(s)

Versus

1.Dr. Ashok Kumar Y.G - Opp.Party(s)

Mrs. Latha C.S. Holla

22 Apr 2015

ORDER

Heading1

Heading2

Complaint Case No. CC/144/2011

1. Mrs. Shrilatha Hegde,

W/o. Late Mahim Kumar Hegde Shreema, 80, Badagupet, Bairanje Post, Udupi Tq. & District

...........Complainant(s)

Versus

1. 1.Dr. Ashok Kumar Y.G

Okude Diagnostic & Medical Centre Behind Okude Towers, Kunjibettu, Udupi 576102.

2. 2.Dr. Praveen J. Shetty

Yenepoya Specialty Hospital Kodialbail, Mangalore 575003

Dakshina Kannada

Karnataka

3. 3.The Management of Yenepoya Specialty Hospital

Kodialbail, Mangalore 575003.

Dakshina Kannada

Karnataka

4. 4.The Management of Gandhi Hospital

General Medical, Surgical & Maternity Hospital, Near City Bustand, Udupi 576101.

Udupi

Karnataka

............Opp.Party(s)

BEFORE:
	HON'BLE MRS. Smt.Asha Shetty PRESIDENT
	HON'BLE MR. Nirmala Kumar B. MEMBER
	HON'BLE MRS. Lavanya . M. Rai MEMBER

For the Complainant:	Mrs. Latha C.S. Holla, Advocate
For the Opp. Party:

ORDER

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated the 29^thof April 2015

PRESENT

SMT. ASHA SHETTY : HON’BLE PRESIDENT

SRI T.C. RAJASHEKAR : HON’BLE MEMBER

COMPLAINT NO.144/2011

(Admitted on 21.04.2011)

Mrs. Shrilatha Hegde,

W/o Late Mahim Kumar Hegde,

‘Shreema’, 80, Badagupet,

Bairanje Post,

Udupi Tq. & District. …….. COMPLAINANT

(Advocate for complainant: Mrs. Latha C.S. Holla)

VERSUS

1. Dr. Ashok Kumar Y.G.

OKUDE DIAGNOSTIC &

MEDICAL CENTRE,

Behind Okude Towers,

Kunjibettu,

Udupi – 576 102.

2. Dr. Praveen J. Shetty,

Yenepoya Specialty Hospital,

Kodialbail, Mangalore – 575 003.

3. The Management of –

Yenepoya Specialty Hospital

Kodialbail, Mangalore – 575 003.

4. The Management of –

Gandhi Hospital,

General Medical, Surgical &

Maternity Hospital, Near City Bus Stand,

Udupi – 576 101. ... OPPOSITE PARTIES

(Advocate for Opposite Parties No.1 to 4: Sri. K.S. Bhat)

***************

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging medical negligence against the Opposite Parties claiming certain reliefs.

2. The Complainant stated that the opposite party No.1 is practicing as a Cardiologist & Nephrologist at Udupi and opposite party No.2 is an Interventional Cardiologist at opposite party No.3 Hospital. The husband of the Complainant one Mr. Mahim Kumar Hegde earlier was visiting the clinic of opposite party No.1 and he was consulting the said Doctor regularly since 2004. It is stated that the opposite party No.1 is aware about the past medical history of Mr. Mahim Kumar Hegde. On 05.06.2010 the complainant along with her husband went to the clinic of opposite party No.1. At that time, opposite party No.1 advised for blood sugar test and prescribed certain medicines as her husband had chest pain. Since the chest pain did not subside, her husband came back to the clinic of opposite party No.1 on 08.06.2010 and informed that he was experiencing the chest pain such as heaviness, discomfort and squeezing pain and also having nausea and radiating pain at his back. Mr. Mahim Kumar Hegde was a known case of Diabetes Mellitus and Hypertension and opposite party No.1 was treating him for the said diseases since 2004.

3. It is stated that on 08.06.2010 when the complainant and her husband approached opposite party No.1, but he did not conduct any test / investigations to find out whether Mr. Mahim Kumar Hegde was having any cardiac problem / heart ailment and did not prescribe any antiangina medications such as Beta blockers, Nitrates, calcium channel blockers etc., Instead that he did Sonography of the Abdomen and prescribed certain medicines for gastroenteritis and pain and assured that he is not suffering from any serious heart ailment and his condition is quite normal. After consulting opposite party No.1, the complainant and her husband went back home . Despite taking the medicines, condition of Mr. Mahim Kumar Hegde did not improve. His chest pain was increasing and it became unbearable. Along with chest pain, he had other problems like burning sensation in the stomach and chest, vomiting, sweating, giddiness, etc., In that situation, complainant and her husband came to the residence of the opposite party No.1, On 10.06.2010 during early morning hours at about 5.00 A.M. At that time, opposite party No.1 did not even have the courtesy to come out and talk to them personally and the wife of the complainant was asked to inform the complainant to go to opposite party No.4, Gandhi Hospital, Udupi. After complainant went to the said Hospital, opposite party No.1 came to the said Hospital leisurely at his convenient time and without conducting ECG or any other tests, advised them to go to Yenepoya Specialty Hospital, Mangalore, for treatment (i.e., opposite party No.4 Hospital). It is stated that the opposite party No.1 neither admitted to the said Hospital nor he was prescribed / given any medicines in the said Hospital. The complainant and her husband were made to wait for opposite party No.1 in the corridor of the said Hospital and after he came to the Hospital without conducting any tests and examining Mr. Mahim Kumar Hegde, asked them to go to Yenepoya Specialty Hospital, Mangalore, for treatment. The observation made in the Hospital Records of opposite party No.4 Hospital clearly shows that Mr. Mahim Kumar Hegde was not at all given proper treatment by the opposite party No.1 on 10.06.2010.

4. It is also stated that on 10.06.2010 at about 7.00 A.M., opposite party No.1 had directed Mr. Mahim Kumar Hegde and the complainant to go to Yenepoya Specialty Hospital, Mangalore. In fact, as the condition of the road was not good and as it required more than two hours to reach Mangalore, the complainant and her husband wanted to go to KMC Hospital for further treatment on 10.06.2010. But for the reasons best known to opposite party No.1, made the decision on his own and compelled the complainant and her husband to approach Yenepoya Specialty Hospital, Mangalore.

5. It is also stated that observations made in the opposite party No.4 Hospital’s record in respect of refusal to go to KMC Manipal, etc., are created for the purpose of the case and far from truth. No signatures of the complainant or her husband was obtained in the Hospital records. It is stated that the opposite party No.1 did not take their consent while sending them to Yenepoya Specialty Hospital, Mangalore. It is stated that to reach nearby hospital KMC, Manipal Hospital, it takes only five minutes by Ambulance by opposite party No.1 Hospital. Knowing all these facts opposite party No.1 should not have directed to opposite party No.2 Hospital.

6. It is further stated that at the first instance, the opposite party No.1 has not given any treatment/medicines to Mr. Mahim Kumar Hegde at Gandhi Hospital, Udupi during morning hours on 10.06.2010 and he has never explained any risk factors and about the condition of Mr. Mahim Kumar Hegde to the complainant. On his own he took the decision to send Mr. Mahim Kumar Hegde to Yenepoya Specialty Hospital, Mangalore and the complainant was not even allowed to consult any of her relatives about these arrangements. It is stated that the opposite party No.1 referred the case of Mr. Mahim Kumar Hegde to opposite party No.2 and sent them to opposite party No.3 Hospital with ulterior motive and to make financial gains. Opposite party No.1 did not make any attempt to save the life of Mr. Mahim Kumar Hegde and misused the faith that the complainant and her husband had on him. When the complainant requested the authorities of the opposite party No.4 Hospital to furnish the concerned records, the opposite party No.1 joined hands with the said Hospital Authorities and fabricated all the records to take up necessary defense in this case.

7. It is also stated that on 10.06.2010 at about 7.00 A.M., the opposite party No.1 has sent the complainant and her husband in an Ambulance to Mangalore. But the said Ambulance, did not have any facility to handle his critical conditions and they were accompanied by a ward boy and there were no equipments to give treatment in case of emergency and Mr. Mahim Kumar Hegde was made to lay down in the Ambulance without any safety belts. It was a rainy season and the road from Udupi to Mangalore was in a bad condition. Added to this, the Driver of the Ambulance was not aware the proper route to reach the Hospital, Mangalore and no one including the complainant was knowing the route to the said Hospital. It is stated that the Ambulance reached Mangalore at a belated time at 9.00 A.M. that is nearly after 2 hours after they left Udupi. This has further delayed the admission and treatment to Mr. Mahim Kumar Hegde at opposite party No.3 Hospital and aggravated the situation. The opposite party No.1 being the treating Doctor of Mr. Mahim Kumar Hegde not taken responsibility with due care to save the life of Mr. Mahim Kumar Hegde. Mr. Mahim Kumar Hegde was experiencing severe chest pain during night hours itself on 09.06.2010. Under such circumstances, as per International Medical Standard, treatment should have been given to him immediately. Unfortunately, because of the negligence of opposite party No.1, timely treatment was not given and there was undue delay.

8. It is also stated that on 10.06.2010 at about 6.00 A.M. itself the condition of Mr. Mahim Kumar Hegde was critical. Opposite party No.1 should have given the treatment and made immediate arrangements to admit him to nearby Hospital, i.e., K.M.C., Manipal to save his life, but no admission has been done. It is stated that as per the Code of Ethics Regulations 2002, prescribed by Medical Council of India, as a Physician opposite party No.1 has the primary duty to render service to the patient and reward or financial gain has to be his subordinate consideration. He should be diligent in caring for the sick. As per the above code of ethics, as a physician, he should however respond to any request for his assistance in an emergency. Once having undertaken a case, he should not neglect the patient. Further, he is required to ensure that the patient and the relatives have such knowledge of the patient’s condition as will serve the best interests of the patient and family.

9. It is stated that the complainant and her husband reached Yenepoya Specialty Hospital at about 9.00 A.M. and by that time, opposite party No.1 was also present in the said Hospital. As per his advice, Mr. Mahim Kumar Hegde was referred to the said Hospital for Coronary Angiogram and PTCA and he was personally present when the above procedures were done to the husband of the complainant on 10.06.2010. Mr. Mahim Kumar Hegde was subjected to Coronary Angiogram and then PTCA in the cath lab of opposite party No.3 Hospital and he was assisting Dr. Praveen J. Shetty, opposite party No.2 in doing the above procedure even the same was not found in the opposite party No.3 Hospital records. Both opposite party No.1 and 2 have handled the case of Mr. Mahim Kumar Hegde with utmost negligence and in inhuman way and it has caused irreparable loss and damage to the life of the complainant. The act of treating Mr. Mahim Kumar Hegde negligently and also amounts to criminal breach of trust. And there is utter negligence on the part of the opposite party No.1 and 2 for the untimely death of Mr. Mahim Kumar Hegde.

10. It is stated that the Mr. Mahim Kumar Hegde was admitted to opposite party No.3 Hospital and both opposite parties No.1 and 2 had already decided to conduct CAG and PTCA to Mr. Mahim Kumar Hegde. It is stated that before taking such a decision, they were required to take a voluntary, valid, informed and real consent from the patient and also required to give adequate information concerning the nature of treatment, procedure, risks involved in the procedures etc., to the complainant and her husband. But the opposite parties have not furnished any information concerning the nature of the treatment, procedure involved and there is no consent either by the complainant or by her husband for doing CAG and PTCA. It is again that at the time of conducting CAG and PTCA, the opposite parties were aware that Mr. Mahim Kumar Hegde was having diabetics and Hypertension for the past 10 years. The opposite party No.1 was also treating him for the said ailments.

11. It is stated that in the records of the opposite party No.3 Hospital, it is mentioned that Mr. Mahim Kumar Hegde has suffered Refractory Ventricular Fibrillation. Under such circumstances, it requires immediate defibrillation. For successful defibrillation, Electric defibrillator, which helps in reversing the critical condition by the electric discharge of direct current from a defibrillator is helpful. In patients at high risk of ventricular fibrillation, the use of an implantable cardioverter defibrillator is more beneficial. Such patients should be given Antiarrhythmic agents like amiodarone or lidocaine. During ventricular fibrillation, cardiac output drops to zero and unless remedied promptly, death usually ensures within minutes. The above mentioned methods were not adopted by the opposite parties while treating Mr. Mahim Kumar Hegde.

12. It is further stated that though the opposite party No.1 was present throughout the procedure on 10.06.2010 at opposite party No.3 Hospital, wantonly his name is not mentioned in the said Hospital records and the condition of Mr. Mahim Kumar Hegde was not informed to the complainant or to his relatives and did not discuss about the complications involved in the procedures and not obtained consent from the patient as well as his wife or his relatives. It is further stated that at 9.30 a.m. on 10.06.2010 Mr. Mahim Kumar Hegde had expired and the opposite party No.1 left the opposite party No.3 hospital at about 9.30 A.M. without informing the complainant or his relatives that Mr. Mahim Kumar Hegde is dead. It is stated that the opposite parties have not handled Mr. Mahim Kumar Hegde diligently and in order to grab money from the complainant, opposite parties have conducted CAG without informing the outcome of CAG and on their own they have decided to conduct PTCA to Mr. Mahim Kumar Hegde. There is no record to show that outcome of CAG was informed to the complainant and it is further stated that after the sad demise of Mr. Mahim Kumar Hegde, the complainant has approached the opposite party No.3 and requested to furnish certified copies of all the Hospital records relating to her husband. Though initially opposite party No.3 declined to furnish the copies, after repeated persuasion, certified copies of coronary Angiogram Report, Admission Record, Doctors Orders, two Consent Forms, Nurses Record, Angiogram and Angioplasty C.D. were furnished to the complainant. It is further stated that the Coronary Angiogram Report of Mr. Mahim Kumar Hegde indicates that it was a case of bypass surgery. Therefore, opposite parties No.1 and 2 ought to have sought the opinion of Cardiac Surgeon before subjecting Mr. Mahim Kumar Hegde to Angioplasty. Failure on their part to consult Cardiac Surgeon clearly establishes that the choice of procedure of Angioplasty was totally unwarranted. That in case of angioplasty, there is the chance that the treated arteries may narrow again and further it is stated that the sudden death of her husband has caused mental agony, hardships and irreparable loss to the complainant and her family members. Because of the neglected professional duties and medical negligence committed by the opposite parties and aggrieved by the said negligent act, the complainant got issued a legal notice dated 18.12.2010 and 21.12.2010 under RPAD to all the opposite parties. Opposite parties have forwarded reply dated 20.01.2011 to the above said notice. The averments at para 1 to 9 of the said notice are false and misleading. It is alleged in the said notice that Mr. Mahim Kumar Hegde was an Alcoholic. Infact Mr. Mahim Kumar Hegde was not an Alcoholic and averments made in the notice were fabricated and denied by the complainant. It is contended that the complainant was put to shock and the opposite parties have treated Mr. Mahim Kumar Hegde very negligently and caused his death. Hence the above complaint is filed under Section 12 of the Consumer Protection Act, seeking direction against the opposite parties to pay a sum of Rs.19 lakhs as compensation towards mental agony and hardship.

II. Version notice served to the Opposite Parties by R.P.A.D. Opposite Party No.1 to 4 appeared through their counsels. Opposite Party No.1 filed version and Opposite Party No.4 adopts the version of Opposite Party No.1. Opposite Party No.2 and 3 filed separate common version.

1. Opposite Party No.1 submitted as follows:

The above complaint is not maintainable under law or facts. The complaint is frivolous and has been made only to harass the Opposite Parties and also stated that the above complaint is barred by principles of res-judicata as the Complainant had already once filed the above complaint on the same cause of action before the Karnataka State Consumer Disputes Redressal Commission, Bangalore in complaint No.28/2011 and the same has been dismissed. This fact is suppressed in the complaint. Neither the said State Commission has given permission to file the above complaint before the above Forum, hence it is to be dismissed on the said ground alone.

Secondly, the Opposite Party No.1 and 4 are both located at Udupi and the treatment availed by the patient was in Udupi and no cause of action against them has arisen in Mangalore. Hence the complaint is bad against the said two Opposite Parties for want of jurisdiction.

2. It is further stated that Opposite Party No.1 is a Consultant Specialist in Internal Medicine including Nephrology and Cardiology. He is not the employee of Opposite Party No.4 and not attached to Opposite Party No.4 hospital. The deceased Sri Mahim Kumar Hegde was consulting Opposite Party No.1 occasionally and irregularly for past several years. He was a known patient of Diabetes Mellitus and was morbidly obese weighing more than 120 kilos. The said patient had visited Opposite Party No.1’s clinic on 05.06.2010 at around 5.00 p.m. for a checkup of diabetes and hypertension with no specific complaint. He used to visit earlier irregularly to Opposite Party No.1’s clinic for treatment of obesity, diabetes and hypertension with alcoholic liver disease. This observation is based on the basis of the information given by him during the earlier visits of the patient and also on the basis of the ultra sound scan report which showed increased echogensity of the liver with fatty infiltration of the liver. On the said date Opposite Party No.1 got his blood sugar checked and prescribed anti-diabetic medications such as saxagliptine, gliclazide with metformin and betablockers, Calcium channel blockers, diuretics and Ace Inhibitors.

3. It is stated that in the evening of 08.06.2010 the said patient again visited Opposite Party No.1’s clinic with complaint of pain around the umbilicus. Post exercise ECG done showed hypertensive changes and the ECG report dated 08.06.2010 taken at 18:55:44 was given to the patient. Hence sonography of the abdomen was done which showed severe fatty infiltration of the liver due to obesity and Alcoholism. The patient was advised Aspirin and Atorvastatin along with H2 blockers at the Opposite Party No.1’s clinic on the same day and the same was purchased by him under Bill No.A02553 and A02554 both dated 08.06.2010 at Okude Medicals belonging to Opposite Party NO.1. Atorvastatin was advised to lower the blood cholesterol and H2 blockers for reducing Gastric secretion. However, the Complainant has not produced the above ECG report nor the above bills before this Forum and has suppressed the same, evidently to mislead the above Forum. It is denied that Opposite Party No.1 had prescribed drugs for gastroenteritis as the patient was not having any intestinal infection (diarrhea or vomiting). The gastroenteritis is infection of intestine and course of treatment for same is different. The same only displays the poor knowledge of the Complainant in the field of medical science. He was advised to come on the next day morning 09.06.2010 at 10 a.m. for detailed assessment of the cardia (heart) including test (Treadmill test) and 2D Echocardiography (heart scan). However, he failed to turn up on 09.06.2010 for the said test. On 10.06.2010 at 5.40 a.m. he came driving himself to Opposite Party No.1’s residence along with his wife with the complaint of pain in the retrosternal area since previous night. Opposite Party No.1 advised him to go to Opposite Party No.4 hospital for checkup and followed him to the said hospital. On reaching Opposite Party No.4 hospital he was immediately taken to the emergency room with consent of the patient and the Complainant, wherein he was diagnosed to have high blood pressure (170/130 mg against normal of 120/80 mm), SP02 92% and the random blood sugar test showed at 270 mg %. It is denied that this Opposite Party did not even have the courtesy to come out and talk to them personally or that he asked his wife to inform the Complainant to go to Opposite Party No.4. The ECG was taken and it showed 1mm ST segment elevation in chest leads. Hence complete bold picture, HBS Ag, Hepatitis C and Cardiac enzymes were advised. He was advised with Tab Clavix-AS 4-Stat, Tab Sorbitrate 10 mg was given sublingual, Injection Heparin 5000 units stat. The sorbitrate also known as Isaosorbide dinitrate is in a group of drugs called nitrates. The same dilates blood vessels making it easier for bold to flow through them and easier for the heart to pump. It is widely used to treat or prevent attacks of chest pain. Heparin injection was advised to prevent bold clots forming and also to stop the growth of clots that have already formed in the bold vessels. Clavix –AS is a blood thinning agent with Aspirin. He was then shifted to ICU at 6.45 am and the BP reduced to 150/100 and heart rate stood at 100/minute. A second ECG done showed progression of ST changes and hence was advised to go to a higher centre having better facilities for treatment of such problem. Opposite Party No.1 advised the patient to go to KMC Hospital, Manipal but the patient refused to go to the said hospital citing some previous bad experience of his friend (Mr.Ganesh Shetty) in that hospital and that he expired after PTCA and opted to go to a Hospital at Mangalore where his brother and brother in law (a doctor) were available in Mangalore and were very keen on taking him to Mangalore and not KMC, Manipal.

4. It is stated that on contacting one Sri.Shivaprasad Shetty, Marketing Manager, A.J. Hospital over the cell phone, it was informed that renovation work was being undertaken at their Cath Lab and that the same was not available for any emergency procedures. Hence Opposite Party No.1 suggested the patient to go to Yenepoya Hospital, Mangalore and admit under Dr.Praveen J Shetty, who is well known interventional cardiologist and the patient agreed. For the aforesaid reasons the Opposite Party No.1 issued the reference letter to the Complainant and instructed her to handover the same to Opposite Party No.2. As the patient agreed for the same, arrangement was made to shift him from Opposite Party No.4 hospital at 7.10 a.m. to a higher centre i.e., Yenepoya Hospital, Mangalore by an ambulance along with nasal oxygen and the said ambulance was fully equipped with all necessary emergency drugs. The said Opposite Party No.4 hospital arranged the ambulance free of cost through Panchami Trust. The patient was charged Rs.1,090/- towards treatment given at Opposite Party No.4 hospital and Rs.200/- towards ECG charges. The Complainant has suppressed the bill issued to the patient by the Opposite Party No.4 hospital in this regard and has falsely contended that Rs.1,290/- is towards ambulance charges.

5. It is stated that as Opposite Party No.1 was well acquainted with the patient, on the patient’s insistence Opposite Party No.1 visited Opposite Party No.3 hospital at about 9.30 a.m. on 10.06.2010. However by the time he visited Opposite Party No.3 hospital the Angiography of the patient had almost been completed and he only witnessed as a bystander for the rest of the time.

6. It is denied that the husband of the Complainant was visiting the Opposite Party No.1’s clinic or that he was consulting Opposite Party No.1 regularly since 2004. It is denied that the Complainant along with her husband went to Opposite Party No.1’s clinic on 05.06.2010 with a complaint of chest pain. It is denied that his chest pain did not subside and he came back to Opposite Party No.1’s clinic on 08.06.2010 or that he informed Opposite Party No.1 that he was experiencing chest pain such as heaviness, discomfort and squeezing pain. It is further denied that he was having nausea and radiating pain at his back. It is true that the patient was a known case of diabetes mellitus and hypertension, however it is denied Opposite Party No.1 has been treating him for the said disease since 2004. The said patient had visited Opposite Party No.1’s clinic, as stated above, for the said checkup of diabetes and hypertension and Opposite Party No.1 had prescribed the medicines and got the blood sugar checked as stated above. As the patient was abese, in the past he was advised beta blockers, nitrates and calcium channel blockers and has been taking the same for past several years. Moreover Opposite Party No.1 had prescribed him the same even on 05.06.2010. Hence the allegation that Opposite Party No.1 should have prescribed the same on 05.06.2010 does not arise.

7. It is denied that Opposite Party No.1 did not conduct any tests/investigation to find out whether he was suffering from any cardiac problem/heart ailment or that he did not prescribe any antianginal medications such as Beta – blockers, nitrates, calcium channel blockers etc., or that he assured him that the patient is not suffering from any serious heart ailment or that his condition is quite normal. The patient until his visit in the early morning of 10.06.2010 had never complained to client No.1 of any chest pain.

8. It is stated that the Opposite Party No.1 had fully explained the patient and to the Complainant the condition of the patient and the same was recorded in the medical records of the Gandhi Hospital, Udupi. The allegation that the Opposite Party No.1 compelled the Complainant and the patient to go to Yenepoya Specialty Hospital, Mangalore is blatantly false. It is submitted that there is no such procedure of taking written consent of the patient or the party in case of advice to shift to a higher hospital. Decision was taken after discussion with the patient/party and with their oral consent. It is denied that the Complainant’s brother and brother-in-law stated that in case he has to be taken to Mangalore for further treatment, he should be admitted to A.J. Hospital, Mangalore. In fact Opposite Party No.1 issued a referral letter dated 10.06.2010 in favour Opposite Party No.2 in order to explain him the condition of the patient and handed over the same to the Complainant asking her to hand over the same to Opposite Party No.2 on reaching Opposite Party No.3 hospital. However it is only now that Opposite Party No.1 has learnt that for the reasons best known the patient /party did not hand over the same to Opposite Party No.2 and retained the same with them.

9. It is denied that Opposite Party No.1 joined hands with Opposite Party No.4 hospital and fabricated all the records to take up necessary defence to safeguard himself. It is denied that the said ambulance has no facility to handle his condition or that the patient was accompanied by a ward boy or that there were no equipment in case of emergency. It is denied that at that time the road from Udupi to Mangalore was in a bad condition or the patient’s journey was strain full and it worsened his condition. It is denied that the driver of the ambulance was not knowing the proper route to Opposite Party No.3 hospital. In fact the patient left Udupi after about 7.10 a.m. and reached Opposite Party No.3 hospital by 8.45 a.m. Hence there was no such ordinate delay as alleged by the Complainant.

10. The allegations that Opposite Party No.1 should have made arrangement to admit the patient to KMC Hospital and that instead he was money hungry or that for his advantage he took the decision to admit him at Opposite Party No.3 hospital are defamatory and in fact Opposite Party No.1 did not charge for the consultations or for his aforesaid visit to Opposite Party No.3 hospital. Opposite Party No.1 is not on the payrolls of the Opposite Party No.3 hospital and hence he has no monetary benefit to claim. The said allegation is regretful and preposterous.

11. It is denied that Complainant and her husband reached Opposite Party No.3 hospital at 9.00 a.m. and that by that time Opposite Party No.1 was present at Opposite Party No.3 hospital. It is further denied that as per Opposite Party No.1’s advice the patient was referred to Opposite Party No.3 hospital for Coronary Angiogram and PTCA. In fact Opposite Party No.1 was not present during angiogram nor had he treated the patient at Opposite Party No.3 hospital and hence question of entering his name in the said hospital records does not arise. Opposite Party No.1 visited the said hospital on humanitarian grounds as the patient was well known to him since last several years. The allegation that it is proof of handling the patient negligently and carelessly or planned to eliminate Opposite Party No.1’s name from the said hospital records is nothing but Complainant

12. There is no question of Opposite Party No.1’s name being entered in the Opposite Party No.3 hospital records, as he was nowhere involved in the treatment of the patient at Opposite Party No.3 hospital.

13. The allegation that when the patient was admitted at Opposite Party No.3 hospital, Opposite Party No.1 and 2 had already decided to conduct CAG and PTCA or Complainant and her husband were not furnished with information regarding the nature of treatment and procedure to the Complainant and her husband to make a balanced judgement with regard to the procedure and that there was no consent taken from the patient or the Complainant is denied. It was an emergency situation and steps had to be taken quickly in the Opposite Party No.3 hospital. The averments in para 20 that at the time of admission of the patient at Opposite Party No.3 hospital except Opposite Party No.1 and 2 no other doctors were present is denied. The same is preposterous.

14. It is stated that the Opposite Party No.1 is a well-qualified physician practicing internal medicine including its branches, i.e., cardiology and nephrology. The Opposite Party No.1 has obtained the M.D. degree and has been practicing extensively since the year 1988 and in fact is well reputed and established Medical Consultant in and around Udupi District. The Complainant is required to answer whether the said averment is made on her specific instructions as the same is necessary for Opposite Party No.1 to take appropriate legal action against the Complainant in this regard. It is denied that the patient approached the Opposite Party No.1 on 08.06.2010 with complaint of pain in the epigastric region. As stated above, on the said day, the patient came with a complaint of pain in umbilicus region and in view of the same sonography of abdomen was carried out. The same is in accordance with the medical practice and no such wrong diagnosis was made as alleged by the Complainant. The Opposite Party No.1 was working as Associate Professor at Basaweshwara Medical College, Chitradurga in the Dept. of General Medicine/Internal Medicine in the said college till 31.12.2009 and not as alleged by the Complainant. The said college is not a super specialty hospital having facilities of cath lab, dialysis etc, hence Opposite Party No.1 was shown as Associate Professor in General Medicine / Internal Medicine. The Complainant’s intention to mislead the above Forum again stands exposed wherein she has conveniently and intentionally omitted the term ‘Internal Medicine’ from the designation/department. The Complainant does not even know or pretends atleast ignorance that the cardiology and nephrology come under the studies of General / Internal Medicine.

15. FAIMS means Fellow of All India Medicos Society in which the Opposite Party No.1 is the member. The Opposite Party No.1 has been regularly participating in the conferences and seminars around the world. The said organization by the seminars and conferences has been updating its members around the world with latest developments in the field of medical science. With regard to FAGE, the Opposite Party No.1 has stated the same as a proud fellow of the Academy of General Education and not to mislead, as alleged by the Complainant.

16. Primary Angioplasty (PCI) is superior to Streptokinase in the treatment of acute myocardial infarction. As the patient presented himself with a delay of more than 12 hours and the same is of no much help if administered after more than 3 hours of first onset of symptoms. The averments in para 49(f) [i) and (g) [j] are denied and all other allegations in the complaint against the Opposite Party No.1 and 4 which are not specifically traversed herein are hereby denied and sought for dismissal of the complaint

Opposite Party No.2 and 3 submitted as follows:

1. The above complaint is not maintainable under law or facts. The complaint is frivolous and has been made only to harass the Opposite Parties herein.

2. It is stated that the patient was admitted at Opposite Party No.3 hospital at 10.06.2010 at 8.53 a.m. At Opposite Party No.3 hospital the Opposite Party No.2 also found the patient abese, diabetic, hypertensive with complaint of pain in retrosternal area since previous night i.e., on 09.06.2010. ECG was taken which was suggestive of acute heart attack (anterior wall myocardial infarction). Echocardiography (heart scan) of the heart was done and the same confirmed the diagnosis. The Echocardiogram showed left ventricular pumping dysfunction. As there was ongoing chest pain and the duration of the chest pain had gone above 12 hours, patient and his relatives were explained that two treatment options being available i.e., Thrombolysis or Coronary Angiography and Primary Angioplasty and in view of the delayed presentation, PAMI (Primary Angioplasty in Myocardial Infarction)/PTCA i.e., Coronary Angiography followed by Angioplasty was advised. As the patient and his relatives consented and agreed to the latter, the latter was opted. It was an emergency situation.

3. Consent of the patient and his brother in law Dr.Naveen Bhandary for the CAG (Coronary Angiography) was taken. The Angiography confirmed 100% occluded left anterior descending coronary artery and the cause for the heart attack was found. The relatives of the said patient were shown the said block in LAD of 100% and D1 of 90% severity. In view of the said report the need for emergency angioplasty, its benefits, risk and cost involved, were explained in detail to the said brother in law and also the Complainant. Thereafter they gave the consent for the PTCA (Percutanueous transluminal coronary angioplasty) and then the patient was administered inj. Tirofiban (Aggribloc), a blood thinner.

4. While preparing for PTCA, patient had severe chest pain, followed by junctional rhythm and ventricular fibrillation which was promptly defibrillated. A temporary pacemaker was inserted to maintain the heart rate in view of the ventricular fibrillation. The cause for ventricular fibrillation was found to be ischemia due to block in LAD and hence it was decided to go ahead with PTCA.

5. It is well founded that in presence of acute heart attack, CABG (Coronary artery bypass surgery) is not be ventured into and hence need to open the totally occluded culprit artery by PTCA was considered the best option. The Cardiac Anaesthetist Dr.Rakesh M.G and Dr.Harish R (CVTS Surgeon) were kept as standby in case of any need. During the PTCA, patient had frequent ventricular fibrillation requiring defibrillations and resuscitation. In between the said episodes the patient has asystole during which time continuous cardiac massage was done and PTCA was attempted by wiring LAD and DI and balloon dilatation. But inspite of the same the patient succumbed and could not be revived.

6. It is stated that Opposite Party No.1 visited the Opposite Party No.3 hospital, the above procedures were completed. Hence there is no question of Opposite Party No.1’s name being entered in the Opposite Party No.3 hospital records, as he was nowhere involved in the treatment of the patient at Opposite Party No.3 hospital.

7. The allegation that when the patient was admitted at Opposite Party No.3 hospital, Opposite Party No.1 and 2 had already decided to conduct CAG and PTCA or Complainant and her husband were not furnished with information regarding the nature of treatment and procedure to Complainant and her husband to make a balanced judgement with regard to the procedure and that there was no consent taken from the patient or the Complainant is denied. Opposite Party No.2 had obtained appropriate informed consent from the patient and his brother in law i.e., Dr.Naveen for the said procedure was taken. However, Dr.Naveen signed on the ‘witness’ column due to oversight. As the Complainant was not available at the relevant period of time in and around the Cath Lab and it was told by her relatives that she was deeply worried and was not in a position to understand the significance of the consent and to sign the same the consent of Dr.Naveen was taken.

8. It is stated that Dr.Rakesh, Cardiac Anaesthetist intubated and ventilated the patient during the procedure. As no General Anaesthesia was given to the patient no consent was required to be taken. The averment that CABG should be considered as proper procedure/treatment as the said patient was having multiple vessel disease only reveals Complainant’s skin deep knowledge in medical science. The Angiography report dated 10.06.2010 shows 2 blocks in single artery with minor blocks in other 2 arteries which do not require any treatment. Hence it being a single vessel disease with 2 blocks (one in a branch) the decision to do PTCA is fully justified. Considering the serious condition of the patient, CABG was not advised as the first attempt was to clear the occlusion. The allegation that opinion from Cardiac Surgeon should have been obtained before attempting PTCA is denied. No such opinion was required in this particular case. The Medical Literature referred to by the Complainant is not applicable to the case in hand as it is not a case of multi vessel disease.

9. It is false to state that Opposite Party No.3 hospital is not well equipped with all necessary tools to treat potential complications and that it did not have all intravascular devices including monitoring of the arterial pressure waveform and electrocardiography tracing to manage complication or that there were no dedicated team of doctors, nurses and no experienced cath lab technician. It appears that the Complainant has been totally misinformed about the facilities available Opposite Party No.3 hospital.

10. The allegation that techniques of defibrillation such as Anaesthesia, synchronization and electrodes were not used and negligently handled is denied. As the cause for fibrillation was ischemia, PTCA was attempted in order to prevent ischemia and recurrence of ventricular fibrillation. While preparing the patient for PTCA the patient had junctional rhythm followed by Ventricular Fibrillation and hypotension and the same was defibrillated. Cardiopulmonary resuscitation was done. A temporary pacemaker was also inserted. Hence immediate defibrillation was done at the first time and every recurrent episode. Instruments such as defibrillator with facility for synchronization were put into service during the above procedure. Moreover, as the patient was having acute recurrent episodes of Ventricular Fibrillation and the cause being directly attributed to occlusion, Implantable Cardioverter defibrillator (ICD) is not to be used. ICD is useful for the treatment of recurrent VT (Ventricular Tachycardia) in chronic cases (non-emergency situations). The Anti-arrhythmic drugs like lidocaine and amiadarone were not used because the patient had asystole and pulseless electrical activity in between defibrillation shocks and in the given case treatment protocol does not involve administering such drugs. The Synchronization is useful only in cases of Ventricular Tachycardia, unlike the case in hand. Electrodes are the paddles used for delivering the D.C.Energy which were used in the above case during defibrillation. The Anaesthesia is not necessary during emergency defibrillation, as in this case, because the patient became unconscious during the VF and was intubated and ventilated. Therefore, the question of obtaining consent for the same does not arise. However, only local anesthesia was given at the beginning of CAG.

11. It is stated that no such documents were fabricated, as alleged by the Complainant. Opposite Party No.1 was present at Opposite Party No.3 hospital as a friend of the patient, at his request and only remained a bystander to the event. It is denied that the patient expired at 9.30 am on 10.06.2010. It is denied that entry in the Opposite Party No.3 hospital records that the condition of the patient was informed to patient’s relatives and the complications involved is false and fabricated. There is no such requirement or practice of obtaining signatures of the patient or parties on the same. It is denied that the medicines in the hospital records do not tally with the list of medicines in the discharge bill. In fact the events started at 9.30 a.m. and for over two hours Opposite Party No.2 and his team of Opposite Party No.3 hospital did recurrent defibrillations, temporary pacing, Cardiopulmonary resuscitations and attempted PTCA. The relatives of the patient were constantly kept updated about the ongoing events, the attempts to revive and poor prognosis of the patient. The allegation that Opposite Party No.1 left Opposite Party No.3 hospital at about 9.30 am apprehending the complications is utter falsehood. He was present till the patient was declared dead. As the cause of death of the patient in the above instance was known, there was no need to conduct the post mortem. If the Complainant or the relatives had desired for the same, the same could have been conducted but no such request was made by them.

12. The allergy test to dye is not done routinely as it is accepted in medical practice, that such a testing is done only in cases of previous history suggestive of allergic reaction to the dye. Moreover, the patient had no episodes of allergic reaction to the same in the above case. Skin test for testing the allergy to the dye material are not routinely done in medical practice because its role in diagnosis of allergy is limited due to low sensitivity.

13. It is denied that initially Opposite Party No.3 declined to furnish copies of the records or that after repeated persuasion the same were furnished. Such an allegation is made only for the sake of it and to gain sympathy of the court. The patient was not a case of multi-vessel disease and the culprit artery (LAD) was completely occluded and there were only minor blocks in other two arteries. Hence, it was not a case for CABG and opinion of Cardiac Surgeon was not required.

14. There was no such inordinate delay in the above case. Immediately after the admission the Opposite Party No.3 hospital had to carry out necessary investigations (ECG and ECHO and Blood test) to confirm the diagnosis. The patient was immediately taken into the Cath Lab and the Angiography was finished by 9.30 a.m. The patient had to be prepared by inserting I.V canula, shaving the groin and forearm and giving medicines. All these were done within the permitted time period in medical practice and hence there was no such inordinate delay. The averments in para 50(b) are denied. The said two procedures were assisted by two well qualified technicians i.e., Sri Shankar and Sri Bavarizwan.

15. During the course of the procedure IABP was not used because of lack of cardiac contractions on fluoroscopy in between the defibrillation shocks. IABP requires certain residual level of LV (Left Ventricular) function to be effective, which was not the case with the above patient.

16. Thus it would be clear that there was no medical negligence or deficiency on the part of Opposite Parties. Therefore the complaint may be rejected with heavy compensatory costs.

III. In support of the complaint, Smt.Shrilatha Hegde – Complainant (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. One Sri.Shivaprasad Shetty (CW2) – Marketing Consultant in A.J. Hospital & Research Centre, Mangalore, one Dr.Naveen Chandra Bhandary (CW3) - Doctor and specialized in M.D.Dermatology at Muscat, brother-in-law of the deceased and one Sri.Shivaprasad Hegde (CW4) - brother of the deceased filed affidavits and cross-examined by the learned counsel for the Opposite Parties. Ex C1 to C23 were marked for the Complainant as listed in the annexure in detail. One Sri.Koteshwaraiah (RW1) - Cath Lab Technician at A.J. Hospital, Mangalore (summoned witness of the Opposite Party), was examined and cross-examined by the learned counsel for the parties. Dr.Praveen J.Shetty (RW2) i.e., Opposite Party No.2 – Practicing Consultant Interventional Cardiologist at Opposite Party No.3 hospital, Dr.Ashok Kumar Y.G. (RW3) i.e., Opposite Party No.1 – Consultant Physician in Internal Medicine including Nephrology & Cardiology filed counter affidavits and cross-examined by the learned counsel for the Complainant. One Dr.M.Harishchandra (RW4), Managing Director, Gandhi Hospital i.e., Opposite Party No.4 hospital filed counter affidavit and answered the interrogatories served by the Complainant. Ex R1 to R37 were marked for the Opposite Parties as listed in the Annexure in detail. Both parties have produced notes of arguments along with citations.

Cases referred:

Complainant:

Ram Gopal Varsheny Vs. Lasor Sight India Pvt. Ltd: I (2009) CPJ 23 (NC).
G.Balakrishna Pai and Another versus Sree Narayana Medical Mission General Hospital and T.B. Clinic and Others: II (2008) CPJ 93 NC.
Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others: II (2009) CPJ 61 SC.
Samira Kohil Vs. Dr.Prabha Manchanda and Another: JT 2008 SC 399.

Opposite Parties:

Narangiben Subodhchandra Shah versus Gujarat Research: 2012 (3) CPJ 509 N.
Martin F D’Souza versus Mohd. Inshfaq: III (2012) CPJ 509 (NC).

In view of the above said facts, the points now that arise for our consideration in this case are as under:

Whether the complaint is barred by principles of res-judicata?

Whether this FORA has jurisdiction to entertain the complaint?

Whether the Complainant proves that the Opposite Parties have tortious act of negligence/battery which amounted deficiency in service?

If so, whether the Complainant is entitled for the reliefs claimed?

What order?

We have considered the notes of arguments submitted by the learned counsels and we have also considered the materials that was placed before this Forum and answer the points are as follows:

Point No.(i): Affirmative.

Point No.(ii) to (iv): As per the final order.

Reasons

IV. Point No. (i)

As far as issue No.(i) is concerned, the complaint is not barred by principles of res-judicata because no doubt the Complainant initially filed complaint on the same cause of action before the Karnataka State Consumer Disputes Redressal Commission, Bangalore, claiming compensation of Rs 99,00,000/-. The Hon’ble Commission dismissed the complaint as withdrawn on 28.02.2011 and not considered the case on merits. Accordingly, the Complainant presented the complaint before this FORA, therefore the principles of res-judicata not applicable. Issue No. (i) held in favour of the Complainant.

Point No.(ii):

As far as issue No. (ii) is concerned, the Opposite Parties hospital situated within the jurisdiction of this FORA and the Complainant last taken treatment and expired in Opposite Party No.3 hospital, therefore, the cause of action arose within the jurisdiction of this FORA and the issue No.(ii) held in favour of the Complainant.

Point No.(iii) to (v):

As far as issue No.(iii) is concerned, the Complainant came up with a complaint alleging medical negligence against the Opposite Parties and filed detailed affidavit along with documents stating the following allegations against the Opposite Parties as follows:

The first and foremost allegation of the Complainant is that, the Opposite Party No.1 is not a Cardiologist or Nephrologist but he is a M.D. Physician and he is not competent to treat the Complainant’s husband, Late Mr.Mahim Hegde. The role of the Opposite Party No.1 is limited and Mahim Hegde (Hereinafter referred as ‘Mr. Hegde’) should have been referred to the specialist instead of posing as a Cardiologist or Nephrologist. It is contended that, the Complainant and her husband Mr. Hegde trusted the Opposite Party No.1 thinking that he is a cardiologist and was taking treatment. It is contended that the opposite Party No.1 is running a clinic in Udupi District and the Complainant and her husband on 05.06.2010 went to the Opposite Party No.1 clinic with a complaint of chest pain and the Opposite Party No.1 prescribed certain medicines but the chest pain did not subside and again came back to the clinic on 08.06.2010 and informed the Opposite Party No.1 that Complainant’s husband Mr. Hegde was experiencing the symptoms of chest pain such as heaviness, discomfort and squeezing pain and also having nausea and radiating pain at his back. But, the Opposite Party No.1 did not conduct any test/investigations to find out whether Mahim Hegde having any cardiac problem/heart ailment and did not prescribe any anti-angina medications instead of that he did sonography of the abdomen and prescribed medicines for gastroenteritis and assured that he is not having heart ailments. Since Mahim Hegde did not improve his chest pain was increasing and became unbearable. On 10.06.2010 at about 5.00 a.m., he rushed to the residence of the Opposite Party No.1 and the Opposite Party No.1 in turn directed to go to Opposite Party No.4 hospital at Udupi. The Opposite Party No.1 came to the said hospital leisurely at his convenient time, without conducting any tests advised to go to Yenepoya Hospital Mangalore without sending him to the nearby Kasturba Medical College Hospital, Manipal inspite of knowing that the Mahim Hegde got heart attack and that, his condition is critical . It is alleged that, in such a situation, Opposite Party No.1 had sent Mahim Hegde to Opposite Party No.4 hospital with an ulterior motive to make financial gain. Further alleged that, on 10.06.2010 condition of the road was not good as it required more than two hours to reach Mangalore and compelled the Complainant and her husband to go to Yenepoya Hospital and not given any treatment or medicine in Opposite Party No.4 hospital during morning hours on 10.06.2010. And he had never explained any risk factors about the condition of Mr.Mahim Hegde and the Opposite Party No.1 misused the faith of the Complainant and her husband and forced to go to Opposite Party No.3 hospital that also he has sent the Complainant and her husband in an ambulance to Mangalore and the said ambulance did not have any facility to handle his critical condition. And the ambulance was accompanied by ward boy and it was a rainy season and the ambulance was reached belated at 9.00 a.m., this delayed the admission and treatment to Mahim Hegde to Opposite Party No.3 hospital and aggravated the situation. It is contended that, Opposite Party No.1 being the treating doctor did not take responsibility with due care to save the life of Mahim Hegde and he should have been given the treatment immediately and should have referred Mahim Hegde to the specialist and also the nearby tertiary hospital i.e., KMC Manipal. Because of the negligence on the part of Opposite Party No.1 timely treatment was not given, there was undue delay. On 10.6.2010 at 6.00 a.m., the condition of Mr.Hegde was critical. It is contended that, Opposite Party No.1 should have given the treatment and made arrangements to admit him to nearby KMC Manipal to save his life by explaining the critical condition of the patient. But the Opposite Party No.1 in order to make financial gain, he has sent the Complainant and her husband to the Opposite Party No.3 hospital with the understanding and the life of the Mahim Hegde was ended and the Complainant has lost her husband permanently and put to unbearable mental agony and hardship.

Further alleged that, the Opposite Party No.1 not treated nor taken any ECG or other tests as contended by him. When the Complainant requested the Opposite Party No.4 hospital to furnish the hospital records at the earliest, the hospital authorities joined with the hands of Opposite Party No.1, fabricated all the records to take up necessary defence in this case and the Opposite Party No.4 did not issue the documents on time and the documents issued by them are fabricated.

It is again alleged that, after Mahim Hegde got admitted to the hospital i.e., Opposite Party No.3, the Opposite Party No.1 and 2 already decided to conduct CAG and PTCA to Mr.Hegde. Before taking such decision, they were required to take informed consent but they have not taken. Mr.Hegde was suffered refractory ventricular fibrillation. Under such circumstances, it requires immediate defibrillation which helps in revising the critical condition. The patients at high risk of ventricular fibrillation, the use of an implantable cardioverter defibrillator is more beneficial. Such patients should be given Antiarrhythmic agents like amiodarone or lidocaine. During ventricular fibrillation, cardiac output drops to zero and unless remedied promptly, death usually ensures within minutes. The above mentioned methods were not adopted by the Opposite Parties while treating Mr. Hegde.

Further alleged that, Opposite Party No.3 hospital wantonly though the Opposite Party No.1 was present throughout the procedure on 10.06.2010 his name is not mentioned in the said hospital records. And further Opposite Party No.3 declined to furnish the hospital records and after much persuasion, issued the copies. It is stated that, the Opposite Party No.1 and 2 ought to have sought the opinion of Cardiac Surgeon before subjecting Mahim Hegde to angioplasty. It is alleged that, the procedure of angioplasty was totally unwarranted. And because of the negligence on the part of the Opposite Parties, the Complainant put to shock and the life of her husband has taken away, hence this complaint.

The Opposite Parties on the contrary denied all the allegations alleged in the complaint and took a contention that Opposite Party No.1 is a competent doctor. Opposite Party No.1 is a Cardiologist and Nephrologist has required degree to claim as a Cardiologist and Nephrologist. And further stated that, Mr.Hegde was obese, diabetes and hypertension with alcoholic liver disease and for that he was taking treatment with the Opposite Party No.1 and stated that on 08.06.2010 when Mahim Hegde visited the clinic of Opposite Party No.1, at that time post exercise ECG, sonography was done and treated the patient carefully. On 10.06.2010 they came to the residence of the Opposite Party No.1 and Opposite Party No.1 advised the Complainant and her husband Mahim Hegde to go to Opposite Party No.4 hospital for check-up and followed them to the said hospital and stated that the Opposite Party No.1 had immediately taken to the emergency room and conducted ECG and other tests and also given medicines. And further took a contention that, Opposite Party No.1 advised the Complainant and her husband to go to KMC Hospital Manipal but the Complainant and her husband was refused to go to KMC Hospital and they opted to go to hospital at Mangalore and accordingly arrangement was made to shift from Opposite Party No.4 hospital at 7.10 a.m. to Yenepoya Hospital Mangalore by an ambulance which was fully equipped with all necessary emergency drugs and denied the medical negligence alleged against the Opposite Parties. Similarly, the Opposite Party No.2 to 4 also denied the negligence alleged against them.

On hearing the rival contentions raised by the parties we are of the opinion that the initial burden lies upon the Complainant to prove that whether the treating doctors acted carelessly i.e., some failure to do some act which a reasonable man in the circumstances would do or doing some act which a reasonable man in the circumstances would not do and if that failure of doing that act results in injury? But as a matter of fact, when a patient is admitted to the highly commercial hospital like the present institute a thorough check up of the patient are done by the doctors of the hospitals, it is the institute which maintain their case records pertaining to the patient during treatment or after treatment. And also it is very difficult and impossible task if the claim is to be defeated on the ground that there is no expert opinion. Because we cannot place such a heavy burden on the patient or the family members to prove the burden lies on them as it will be very difficult specially in the case of medical profession to point out who is negligent. The patients once they attended by the treating doctors and hospitals herein the Opposite Party No.1 to 4, it is the responsibility of the Opposite Party No.1 to 4 to satisfy that all possible care was taken and no negligence was involved in attending the patient. It is the responsibility of the doctors as well as hospitals to provide the best service. In fact, once a claim petition is filed, the claimant has successfully discharged the initial burden that the Opposite parties are negligent, as a result of such negligent the patient died, then in that case the burden lies on the Opposite Parties who treated the patient that there was no negligence involved in the treatment and also the burden is greater on the doctors who treated the patient.

Considering the issue in its totality, we are constrained to hold that in the instant case the Opposite Party No.1 claimed that he is a Cardiologist and Nephrologist. But the Complainant contended that he is not a Cardiologist or Nephrologist. In fact, he is a M.D. Physician. Now the question is how the Opposite Party No.1 should claim as a Cardiologist and Nephrologist to the general public as well as to the Complainant and her family inspite of knowing that he is only qualified to be a M.D. Physician.

However, before we turn to discuss the point in issue, we have taken into consideration of the following Landmark decisions rendered by the Hon’ble Supreme Court, wherein, one of the eight principles laid down by Hon’ble Supreme Court of India in Dr.Jacob Mathew vs. State of Punjab and another: on the subject of medical negligence directly lays down –

“Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen in whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used”.

And also considering the duties which a doctor owes to his patient in a case Dr.Laxman Balkrishna Joshi vs. Dr.Trimbak Bapu Godbole and Another AIR 1969 SC 128 has held that:

“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (of. Halsbury’s Laws of England, 3^rd Edition Volume 26 Page 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”

In another Landmark decision i.e., in Bolam vs. Friern Hospital Management Committee: 1957(2) All.E.R.118, the Queen’s Bench Division, considering the care which is expected of medical practitioner has held as follows:-

“Before we turn to that, we must explain what in law we mean by negligence. In the ordinary case which does not involve any special skill, negligence in law mean this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure of doing of what act results in injury, then there is a cause of action”.

In another case, in Achutrao Haribhau Khodwa and others vs. State of Maharashtra and Others: 1996(2) SCC 634, the Supreme Court considering the degree of skill of medical practitioners has held as follows:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treatment a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treatment a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.

In the facts and circumstances of the present case on hand and in the light of the medical science/literature/documents examined in this case, the practice adopted by the treating doctor i.e., Opposite Party No.1 cannot be called a practice acceptable to be medical profession of that day. Therefore, it has to be treated as a case of medical negligence in this case. Because the Opposite Party No.1 should not have claimed to be a Cardiologist and Nephrologist before the Complainant and her husband as well as to the general public. On perusal of the degree certificates it becomes clear that, in the year 1985 the Opposite Party No.1 completed MBBS degree and thereafter MD in Internal General Medicine in the year 1988. In fact, in order to practice as a Cardiologist and Nephrologist, the Opposite Party No.1 must have required qualification from the recognized university is very important as like other profession. But in the instant case, the Opposite Party No.1 without there being required qualification / a degree certificate just by basing on fellowship certificate claimed that he is a Cardiologist and Nephrologist which is inexplicable and material departure from the standard practice. That also as a medical man he has lot of responsibility in a society because the doctor’s service is unlike other services. More so, the Opposite Party No.1 knowingly well that he doesn’t have degree of Cardiologist and Nephrologist, claimed to be a Cardiologist and Nephrologist in the society is uncommon phenomenon. Now the question is how such deviation should be viewed under law. One of the rule is that to claim as a Cardiologist as we know those who completed M.D. and D.M in cardiology can become cardiologist. But the Opposite Party No.1 is only a physician and we are very surprised to look into the documents i.e., prescriptions Ex C1, C2, C3, C16, C17, C18 and C19 wherein the Opposite Party No.1 mentioned and claimed to be a Cardiologist and Nephrologist. And further in his deposition he had admitted that, he had not done D.M in Cardiology or D.M. in Nephrology. In fact, the Ex R10 is not a degree certificate. However, the Opposite Party No.1 himself admitted that since from 1989 he is practicing as Cardiologist and Nephrologist in general public. But, the counsel for the Opposite Party No.1 argued that, 15 years back there was no D.M. and D.M.B. degrees. The person one who studied M.D. in Internal Medicine also entitled to practice as a Nephrologist and Cardiologist. But we are not convinced with the above argument. Because the Opposite Party No.1 admitted that, he had not done any specialization in Cardiology or Nephrology. But Opposite Party No.1 admitted that he had studied nephrology and cardiology as a part of the syllabus/curriculum. In fact, the Medical Council of India Post Graduate Medical Education Regulations 2000 (amended upto March 2012) is very clear that, whoever done specialization in cardiology and nephrology only called as Cardiologist and Nephrologist. But the Opposite Party No.1 without possessing specialization in cardiology and nephrology mislead the general public that he is a cardiologist and nephrologist which is against the medical sciences. In fact, the Opposite Party No.1 is only a general medical practitioner and not otherwise. Without there being recognized degree to call him or claim him as a cardiologist and nephrologist, the Opposite Party No.1 declared himself that he is a Cardiologist and Nephrologist even though he is a M.D. in physician. But no authority is produced before this FORA to show that he is a Cardiologist and Nephrologist. To become a Cardiologist one should possess special qualification i.e., M.D and D.M in cardiology as stated supra but the Opposite Party No.1 not possessing that qualification. The medical profession is one of the oldest and noblest professions in the world and is the most humanitarian one, unlike driving vehicles on the road. There is no better service than to serve the sufferings, wounded and sick. When that being so, all that we are doing is to emphasize the need for care and caution in the society for the service which the medical profession renders to human beings. The Opposite Party No.1 is not supposed to claim cardiologist and nephrologist, Opposite Party No.1 acted against to the medical science / ethics. The Complainant is at liberty to write to Medical Council of India as well as Medical Council of Karnataka for appropriate action apart from holding the Opposite Party No.1 committed a tortious act, the act was an unauthorized invasion and interference with the patient body which amounts to medical negligence.

We further, observed that, the role of the Opposite Party No.1 as a physician is limited in a case on hand. The Opposite Party No.1 should have attended the Mr Hegde initially then thereafter should have been referred to the specialists instead of posing as a Cardiologist and Nephrologist. It is under stood that the Complainant and her husband are innocent and they are not aware whether Opposite Party No.1 possessed required skill as Cardiologist or Nephrologist. It is virtually impossible or difficult task for the Complainant and her husband searching enquiry of Opposite Party’s qualification when they are under treatment. It will be very difficult task especially in the case of medical profession to point out that who is at fault and responsible.

We noted that, a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.

However, before touching to the depositions of the witnesses, we have perused the case sheet pertaining to the patient i.e., deceased Mahim Hegde and also the deposition of Opposite Party No.2 i.e., Dr.Praveen J. Shetty, who is the consultant Interventional Cardiologist at Opposite Party No.3 hospital and also the evidence of Dr.Ashok Kumar Y.G. i.e., Opposite Party No.1 who is Consultant M.D. Physician, the deposition of both the witnesses are very much relevant to consider the case on hand. Therefore, some of the important part reproduced as it is here below:-

Opposite Party No.2 i.e., Dr.Praveen J. Shetty deposed as follows:-

(Page No.1 in para No.2)

The patient Mahim Kumar Hegde was admitted at Opposite Party No.3 at 10.06.2010 at 8.53 a.m. Immediately thereafter I examined the patient and found him morbidly obese, diabetic, hypertensive. He also complained of pain in retrosternal area (behind the breastbone) since previous night i.e., on 09.06.2010. ECG was taken and was suggestive of acute heart attack (anterior wall myocardial infarction). Echocardiography (heart scan) of the heart was done and the same confirmed the diagnosis. The Echocardiogram showed left ventricular pumping dysfunction. As there was ongoing chest pain and the duration of the chest pain had gone above 12 hours, patient and his relatives were explained that two treatment options being available i.e., Thrombolysis or Coronary Angiography and Primary Angioplasty (PAMI/PTCA). They were appraised about the advantages of PAMI (Primary Angioplasty in Myocardial Infarction)/PTCA i.e., Coronary Angiography followed by Angioplasty and that in view of the delayed presentation PAMI is superior to Thrombolysis. In fact thrombolysis treatment is by way of intra-venous drugs which will not be very effective after 6 hours of oneset of chest pain. As the patient and his relatives consented and agreed to the latter i.e., PAMI/PTCA, the latter was opted. It was an emergency situation.

In cross-examination Opposite Party No.2 i.e., Dr.Praveen J. Shetty on 04.05.2012, 08.05.2012 and 09.05.2012 deposed as follows:

(Page No.7)

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Opposite Party No.1 i.e., Dr.Ashok Kumar Y.G on 25.06.2012, 26.06.2012 and 09.07.2012 in cross-examination deposed as follows:

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F ¦AiÀiÁð¢AiÀÄ°è vÉÆÃj¹gÀÄªÀ ¥ÀæPÀgÀtzÀ §UÉÎ zÁR¯ÉUÀ¼À C£ÀÄ¨sÀªÀ«zÉ. PÀ£ÁðlPÀ ªÉÄrPÀ¯ï PË¤ì¯ï£À°è £ÉÆÃAzÁªÀuÉ ªÀiÁrzÀ zÁR¯ÉAiÀÄ£ÀÄß F £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä CUÀvÀå«zÀÝ°è ºÁdgÀÄ¥Àr¸ÀÄvÉÛÃ£É JAzÀÄ ¸ÁQë £ÀÄrzÀgÀÄ. ¤±Á£É ¹-1jAzÀ ¹-3gÀ vÀ£ÀPÀzÀ ¦æ¹Ìç¥Àë£ï EvÀgÀ zÁR¯ÉUÀ¼ÀÄ £Á£ÀÄ ¤ÃrzÁÝVgÀÄvÀÛzÉ. ¤±Á£É ¹-4 £Á£ÀÄ ¤ÃrzÀ j¥ÉÇÃmïð DVgÀÄvÀÛzÉ. ¸ÁQëUÉ ¦AiÀiÁðzÀÄzÁgÀgÀ ªÀQÃ®gÀÄ 1£ÉÃ JzÀÄgÀÄzÁgÀjUÉ ¸ÀA§AzsÀ¥ÀlÖAvÀºÀ PÉ®ªÀÅ zÁR¯ÉUÀ¼À£ÀÄß vÉÆÃj¸ÀÄwÛzÀÄÝ, ¸ÁQëAiÀÄÄ D zÁR¯ÉUÀ¼À£ÀÄß ¥Àj²Ã°¹ CzÀÄ £Á£ÀÄ ¤ÃrgÀÄªÀ ««zsÀ SÁ¬Ä¯ÉUÉ ¸ÀA§AzsÀ¥ÀlÖAvÀºÀ j¥ÉÇÃmïð DVgÀÄvÀÛzÉ JAzÀÄ ¸ÁQë £ÀÄrzÀgÀÄ. CzÀ£ÀÄß PÀæªÀÄªÁV ¤±Á£É ¹-16, 17, 18 ªÀÄvÀÄÛ 19 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQëAiÀÄÄ E£ÉÆßAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß £ÉÆÃqÀÄwÛzÀÄÝ, ¢:02.06.2012gÀAzÀÄ ¨ÉÃgÉ AiÀiÁªÀÅzÉÆÃ MAzÀÄ gÉÆÃVUÉ ¤ÃrzÀAvÀºÀ ¦æ¹Ìç¥Àë£ï DVzÀÄÝ, CzÀ£ÀÄß JzÀÄgÀÄzÁgÀ ªÀQÃ®gÀ DPÉëÃ¥ÀPÉÌ UÀÄj¥Àr¹ CzÀ£ÀÄß ¤±Á£É ¹-20 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.

qÁ:¥Àæ«Ãuï ±ÉnÖ (2£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ) gÀªÀgÀ ¥ÀjZÀAiÀÄ«zÉ. ¤±Á£É Dgï-2 qÁ:¥Àæ«Ãuï ±ÉnÖAiÀÄªÀjUÉ PÀ£ÁðlPÀ ªÉÄrPÀ¯ï PË¤ì¯ïgÀªÀgÀÄ ¤ÃrgÀÄªÀ ¸Ànð¦üPÉÃmï DVgÀÄvÀÛzÉ. 2£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ EAlgïªÉ£Àê£ï£À°è PÁrðAiÀiÁ®f¸ïÖ DVgÀÄvÁÛgÉ. 2£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ ¥ÀzÀ« ªÀiÁrzÀ §UÉÎ ¤±Á£É Dgï-2gÀ°è £ÀªÀÄÆzÀÄ EzÉ. £Á£ÀÄ r.JA. E£ï PÁrðAiÀiÁ®f ªÀÄvÀÄÛ r.JA. E£ï PÁrðAiÀiÁ®f ¥ÀzÀ«AiÀÄ£ÀÄß ºÉÆA¢gÀÄªÀÅ¢®è JAzÀgÉ ¸Àj. £Á£ÀÄ r.JA. E£ï £É¥ÉÇæÃ®f ¥ÀzÀ«AiÀÄ£ÀÄß ¥ÀqÉ¢gÀÄªÀÅ¢®è. £À£ÀUÉ £É¥ÉÇæÃ®fAiÀÄ°è mÉæöÊ¤AUï DVgÀÄvÀÛzÉ. ¤±Á£É Dgï-10 rVæ ¸Ànð¦üPÉÃmï DVgÀÄªÀÅ¢®è CzÀÄ JPïì¦ÃjAiÀÄ£ïì ¸Ànð¦üPÉÃmï DVgÀÄvÀÛzÉ. 2£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ JA.r.E£ï d£ÀgÀ¯ï ªÉÄr¹£ï ªÀiÁrzÀ £ÀAvÀgÀzÀ°è r.JA.E£ï PÁrðAiÀiÁ®f ªÀÄvÀÄÛ r.JA. E£ï PÁrðAiÀiÁ®f ¥ÀzÀ«AiÀÄ£ÀÄß ªÀiÁrgÀÄvÁÛgÉ. £Á£ÀÄ C¸ÉÆÃ¹AiÉÄÃµÀ£ï ¦ü¹Ã¶AiÀÄ£ï D¥sï EArAiÀiÁ, GqÀÄ¦ ±ÁSÉAiÀÄ CzsÀåPÀë£ÁVzÉÝ.

£Á£ÀÄ 1989jAzÀ PÁrðAiÀiÁ®f¸ïÖ ªÀÄvÀÄÛ £É¥ÉÇæÃ®f¸ïÖ DV ¥ÁæQÖÃ¸ï ªÀiÁqÀÄwÛzÉÝÃ£É. ¤±Á£É ¹-20 gÀ°è ¸ÉàµÀ¯ï EAmÉæ¸ïÖ E£ï PÁrðAiÀiÁ®f, £É¥ÉÇæÃ®f ªÀÄvÀÄÛ qÀAiÀiÁ©mÁ®f EzÀ£ÀÄß ºÁdgÀÄ¥Àr¹zÀÄÝ CzÀÄ ªÉÆzÀ°¤AzÀ®Æ EvÀÄÛ. ¸ÁQëAiÀÄÄ ¥ÀÅ£À: ºÉÃ¼ÀÄvÁÛgÉ 15 ªÀµÀðzÀ »AzÉ r.JA. ªÀÄvÀÄÛ r.JA.©. ¥ÀzÀ«UÀ¼ÀÄ EgÀ°®è. JA.r.E£ï EAl£Àð¯ï ªÉÄr¹£ï ªÀiÁrzÀªÀgÀÄ PÁrðAiÀiÁ®f, £É¥ÉÇæÃ®f ªÀÄvÀÄÛ qÀAiÀiÁ©mÁ®f ºÁUÀÆ EvÀgÀ «µÀAiÀÄzÀ°è mÉæöÊ¤AUï£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ gÉÆÃVUÀ½UÉ aQvÉìAiÀÄ£ÀÄß ¤ÃqÀ§ºÀÄzÀÄ. CzÉÃ jÃw £Á£ÀÄ PÁrðAiÀiÁ®f, £É¥ÉÇæÃ®f ªÀÄvÀÄÛ qÀAiÀiÁ©mÁ®fAiÀÄ°è mÉæöÊ¤AUï£ÀÄß ¥ÀqÉ¢zÀÄÝ, £À£Àß ¤±Á£É ¹-20gÀ°è CzÀ£ÀÄß £ÀªÀÄÆ¢¹ gÉÆÃVUÀ½ÃUÉ aQvÉìAiÀÄ£ÀÄß ¤ÃqÀÄvÉÛÃ£É JAzÀÄ ¸ÁQë £ÀÄrzÀgÀÄ. £Á£ÀÄ F £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀÄ¥Àr¹zÀAvÀºÀ J¯Áè ¦æ¹Ìç¥Àë£ï£À°è ¸ÉàµÀ¯ï EAmÉæ¸ïÖ JAzÀÄ £ÀªÀÄÆ¢¹gÀÄªÀÅ¢®è, ¸ÁQëAiÀÄÄ ºÉÃ¼ÀÄvÁÛgÉ F »AzÉ ¤ÃrgÀÄªÀ ¦æ¹Ìç¥Àë£ï ªÀÄvÀÄÛ ¹-20 MAzÉÃ DVgÀÄvÀÛzÉ JAzÀÄ ¸ÁQë £ÀÄrzÀgÀÄ. PÁrðAiÀiÁ®f ªÀÄvÀÄÛ £É¥ÉÇæÃ®f EzÀÄ ¦üÃ¯ïØ D¥sï ¸ÉàµÀ¯ÉÊ¸ÉÃ±À£ï DVgÀÄªÀÅ¢®è, CzÀÄ JA.r.E£ï EAl£Àð¯ï ªÉÄr¹£ï ¨sÁUÀªÁVgÀÄvÀÛzÉ. £Á£ÀÄ JA.r.E£ï ªÉÄr¹£ï ªÀiÁqÀÄªÁUÀ ¤±Á£É Dgï-8gÀ°è vÉÆÃj¹gÀÄªÀAvÀºÀ J¯Áè ¹¯É§¸ï (¸À¨ÉÓPïÖ)UÀ¼À£ÀÄ PÀ°wgÀÄvÉÛÃ£É. F ªÉÄÃ°£À ¹¯É§¸ïUÀ¼À ªÉÄÃ¯É ¸ÁªÀiÁ£Àå eÁÕ£À ªÀiÁvÀæ EgÀÄªÀÅzÀÄ JAzÀgÉ ¸ÁQëAiÀÄÄ ºÉÃ¼ÀÄvÁÛgÉ - £À£ÀUÉ F ªÉÄÃ°£À «µÀAiÀÄUÀ¼À°è ¸ÉàµÀ¯ÉÊ¸ÉÃ±À£ï EzÉ. £Á£ÀÄ ¤±Á£É Dgï-8£ÀÄß 1985 jAzÀ EgÀÄªÀAvÀºÀ ¹¯É§¸ïUÀ¼À£ÀÄß ºÁQgÀÄvÉÛÃ£É.

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From the above deposition made it clear that, Mr.Mahim Hegde who is a cardiac patient was treated very carelessly and mischievously by the Opposite Party No.1 in this case is proved. Because being a prudent doctor is expected to act as a reasonable man in the circumstances would do or doing some act which a reasonable man in the circumstances would not do and if that failure to doing of what act results in injury then there is a cause of action. Similarly in the instant case, the deposition of Opposite Party No.2 i.e., Dr.Praveen J. Shetty, who is a competent Interventional Cardiologist to treat the patient Mahim Kumar Hegde, his deposition clearly reveals that on 10.06.2010 at 8.53 a.m. Mahim Hegde was admitted to Opposite Party No.3 hospital. In his chief examination as well as in cross-examination specifically admitted that, the Opposite Party No.1 informed the Opposite Party No.2 over the phone at about 7.00 a.m that Mr.Mahim Hegde got heart attack. The relevant portion is that ªÀÄ»A ºÉUÉØAiÀÄªÀgÀÄ 3£ÉÃ JzÀÄgÀÄzÁgÀ D¸ÀàvÉæUÉ §gÀÄªÀ ªÉÆzÀ¯ÉÃ CªÀgÀÄ 3£ÉÃ JzÀÄgÀÄzÁgÀ D¸ÀàvÉæUÉ §gÀÄvÁÛgÉ J£ÀÄßªÀ ªÀiÁ»wAiÀÄÄ £À£ÀUÉ w½¢vÀÄÛ. 1£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ 10.06.2010gÀAzÀÄ ¸ÀÄªÀiÁgÀÄ ¨É½UÉÎ 7.00 UÀAmÉUÉ F ªÉÄÃ°£À «µÀAiÀÄªÀ£ÀÄß w½¹zÀgÀÄ. D ¸ÀAzÀ¨sÀðzÀ°è 1£ÉÃ JzÀÄgÀÄzÁgÀgÀÄ ªÀÄ»A ºÉUÉØUÉ ºÁmïð CmÁåPï DVgÀÄvÀÛzÉ JAzÀÄ w½¹zÀgÀÄ. That means the Opposite Party No.1 already got to know that Mr.Mahim Hegde got mild heart attack at 7.00 a.m. in Opposite Party No.4 hospital itself. In fact, it is undisputed fact that the Opposite Party No.4 hospital is situated in Udupi District whereas Opposite Party No.3 hospital situated in Dakshina Kannada District which is 70 kms away from Opposite Party No.4 hospital. The Opposite Party No.1 being a prudent doctor should not have referred Mr.Mahim Hegde to Opposite Party No.3 hospital when there is a tertiary hospital i.e., Kasturba Medical College Hospital Manipal situated just 4 Kms away from Opposite Party No.4 hospital. The above admission in cross-examination by the Opposite Party No.2 as well as the admissions made by the Opposite Party No.1 in his oral evidence proved beyond doubt that the Opposite Party No.1 not acted as a prudent doctor. At about 7.00 a.m. Opposite Party No.1 informed the Opposite Party No.2 over the phone that the patient was got heart attack, he is sending the patient to Opposite Party No.3 hospital to treat by Opposite Party No.2 is nothing but deprecated. So, it is important to note that the Complainant and her husband Mahim Hegde are the native of Arthradi Village of Udupi District and in Udupi District there is a popular and famous well equipped tertiary care hospitals with super specialty facility i.e., K.M.C. Hospital, Manipal situated just 4 kms away from Opposite Party No.4 hospital. In an emergency case like this, the Opposite Party No.1 instead of sending the patient to the nearby hospital, directly suggested to go to a Dakshina Kannada District which is two hours journey from Udupi District to Dakshina Kannada District appears to be very strange and it looks like there is a understanding between Opposite Party No. 1 & 2. It is further important to note that, at that point of time Udupi-Mangalore Highway was under repair and it was rainy season. But on the other hand the Opposite Party counsel argued that, the Complainant did not agree to go to KMC Hospital Manipal and gave some reasons. All these arguments pale into insignificance when one applies his mind to the facts of the case, because the Opposite Party No.1 specifically admitted in his cross-examination in page No.16 that “PÉ.JA.¹. D¸ÀàvÉæUÉ ºÉÆÃUÀ®Ä £Á£ÀÄ ¸À®ºÉ ªÀiÁqÀ°®è JAzÀgÉ ¸Àj”. There is Opposite Party No. 1 himself admitted in his evidence so the arguments of the counsel contraroy to the evidence given by Opposite Party No. 1. It is undisputed fact that, Mr.Mahim Hegde got mild heart attack at 7.00 a.m in Opposite Party No.4 hospital, it is inevitable to suggest the patient to go to Opposite Party No.3 hospital which is 70 kms away from Opposite Party No.4 hospital. As we know, no prudent person want to invite death. Similarly, when the doctor opined that at 7.00 a.m. the patient herein Mahim Hegde got heart attack, under such situation no Complainant being a wife or the deceased Mahim Hegde will not resist to go to KMC Hospital. So, the statement given by the Opposite Party No.1 is an afterthought and not convincing. The Opposite Party No.1 should not have acted carelessly by sending the patient Mahim Hegde with the heart attack symptom to Dakshina Kannada District to Opposite Party No.3 hospital. The above act of the Opposite Party No.1 itself caused injury to the patient and deprived from timely treatment which requires case on hand or else the above injury/death should not have been resulted to the patient i.e., Mahim Hegde. No doubt, the very nature of the profession is such that there may be more than one treatment which may be advisable for treatment of a patient but in the instant case, our attention was mainly drawn towards the Opposite Party No.1 because the Opposite Party No.1 being a MBBS MD in General Medicine posed to the general public that he is a Cardiologist and Nephrologist without possessing degree certificate issued by the recognized University and without being a registered before the Medical Council of India mislead the Complainant and general public in this case. If at all he is a Cardiologist, then definitely he should have been taken extra caution because he is experienced in that field to diagnose and to give advice at the right point of time. But in the instant case, the Opposite Party No.1 not acted as a reasonable man, thereby invited the injury and as a result the Complainant has lost her husband permanently.

The further points arise for our consideration is that, it is admitted by both the parties that, Mr.Mahim Hegde approached Opposite Party No.1 along with his wife i.e., the Complainant herein at about 5.50 a.m with a complaint of chest pain and he was advised to approach Opposite Party No.4 i.e., Gandhi Hospital, Udupi by the Opposite Party No.1. As per the Gandhi Hospital records i.e., Ex C29 is concerned, there is an intentional delay to furnish the medical records to the Complainant in this case. As per the Code of Ethics Regulation 2002 by Medical Council of India, if any request is made for medical records either by the patient/authorized attendant, the same has to be issued within the period of 72 hours. But in the instant case, the Complainant requested the Opposite Party No.4 to furnish the medical records pertaining to her husband Mahim Kumar Hegde vide letter dated 22.11.2010 i.e., Ex R35 but the Opposite Party No.4 refused to furnish the documents within 72 hours but submitted on 29.11.2010 and the documents produced before this authority appears to be not genuine and they are manipulated as they have put white fluid and erased some of the sentences and also there is no signature of the parties on the hospital records to show that the patient as well as patient’s party refused to go to nearby K.M.C. Hospital, Manipal when the case of Mahim Hegde is so critical. In fact, the Opposite Party No.1 should have taken immediate steps to save the life of the Mahim Hegde by giving an injection strepokinose i.e., a life-saving drug atleast after finding ECG report if at all he had done ECG. Since the Opposite Party No.1 is not a Cardiologist, he could not take such steps to treat the patient or to facilitate the patient to go to nearby tertiary hospital rather he himself taken very careless decision to treat the husband of the Complainant i.e., Mr.Mahim Hegde. Under the above emergency situation the Opposite Party No.1 should not have acted careless, this is also major lapse on the part of the Opposite Party No.1. In fact, the Opposite Party No.1 not justified the reason to referring the case to Opposite Party No.3 hospital. There is an inordinate delay while treating the patient as well as at the right point of time they have not given right treatment to Mr.Mahim Kumar Hegde in this case that resulted in major injury and finally succumbed to death as discussed herein above.

From the above detailed discussion, it is proved beyond doubt that, there is a major careless and negligence on the part of the Opposite Party No.1 and also there is a negligence on the part of Opposite Party No.4 hospital not co-operating the Complainant by providing documents on time and later fabricated the documents in order to support Opposite Party No.1 in this case is proved. Which amounts to deficiency for that the Opposite Party No.4 also liable to pay damages to the Complainant for their lapse.

Apart from the above, we further noted that Opposite Party No.1 while sending Mahim Hegde to Opposite Party No.3 hospital in D.K. District that also in an ambulance which did not have any facility to handle the emergency situation unlike Mahim Hegde and in fact Opposite Party No.3 hospital is not a Super Specialty hospital.

However, the counsel for the complainant argumed that, Mr.Mahim Hegde was brought to Opposite Party No.3 hospital and diagnosed as acute anterior wall Myocardial infarction but the Complainant contended that the Opposite Party No.2 ought to have used the intra-aortic balloon pump a mechanical device which includes myocardial oxygen perfusion while at the same time increasing cardiac output. According to the counsel of the Complainant, increase in cardiac output increases coronary blood flow and therefore myocardial oxygen delivery. This devise is necessary to save the life of Mahim Hegde and also contended that the Opposite Party No.2 has not handled the case in accordance with the prevailing medical practice. The above contention taken by the counsel for the Complainant is not convincing because the treatment given by the Opposite Party No.2 is not out of the reasonable medical treatment by the prudent doctors of the same line. It is the duty of the doctor to take one of the decision which is best and suitable treatment to the patient at the right point of time within his reasonable knowledge. But in the instant case, Opposite Party No.2 Dr.Praveen J Shetty rightly taken decision and tried to save the patient within his learned experience and knowledge and the Opposite Party No.3 hospital co-operated the Opposite Party No.2 and there is no lapse or medical negligence on the part of the Opposite Party No.2 and 3.

On overall facts and details submitted by the Complainant supported by documentary evidence it is proved beyond doubt that the Opposite Party No.1 found to be not Cardiologist and Nephrologist, he is just M.D. Physician. Being a prudent doctor should have referred Mahim Hegde or advised the patient to approach the right person i.e., the Cardiologist for better advice or atleast should have advised the patient to go to nearest tertiary hospital herein this case K.M.C. Hospital Manipal which is just 4 kms away from his clinic instead of sending such an emergency case to Opposite Party No.3 hospital. The Opposite Party No.1 failed to act prudently and also failed to act bonafidely but that malafide intention committed great injustice and negligence to the Complainant for which he has no reasonable excuse. By the careless, deficiency acts of the Opposite Party No.1, Mr.Mahim Hegde and his wife who is young lady i.e., the Complainant put to untold mental agony and ordeal and pain and the Complainant was put to great trauma which cannot be compensated by terms of money. Mr.Mahim Hegde bonafidely took the treatment from the Opposite Party No.1 and also taken the medicines prescribed by him but the Opposite Party No.1 did not give remedy to the Complainant and her husband Mr Mahim Hegde by the Opposite Party No.1, atleast the Opposite Party No.1 should have referred to approach super specialist to ascertain or treat Mahim Hegde at the right point of time that the K.M.C. Hospital Manipal wherein many number of experts/specialists in all the fields are available. But in the instant case, the Opposite Party No.1 forced to be a Cardiologist and took away the life of the Mahim Hegde who is aged 43 years old and also failed to follow professional ethics and carelessly and negligently failed to take necessary steps to prevent or to give immediate treatment to the patient i.e., Mr.Mahim Kumar Hegde in this case.

By considering the above aspects in all and also considering the age of the deceased and the Complainant who is a house wife who has no children lost her future. By considering the mental agony and the expenditure and other aspects, we hereby allowed the complaint against Opposite Party No.1 i.e., Dr.Ashok Kumar Y.G shall pay Rs.15,00,000/- which includes medical expenses spent by the Complainant along with interest at 12% p.a. from the date of complaint till the date of payment. The Opposite Party No.4 i.e., Gandhi Hospital has not submitted the documents to the Complainant at the right point of time and later fabricated the documents to support Opposite Party No.1 which amounts to deficiency in service as stated supra shall pay Rs.10,000/- as damages to the Complainant. On failure to pay Rs.10,000/- by the Opposite Party No.4 within the stipulated time, then the Opposite Party No.4 is liable to pay interest at the rate of 12% p.a. from the date of failure till the date of payment.

Apart from the above, Opposite Party No.1 and 4 jointly and severally shall pay Rs.5,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

The complaint against Opposite Party No.2 and 3 is hereby dismissed.

V. In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Party No.1 i.e., Dr. Ashok Kumar Y.G. shall pay damages of Rs.15,00,000/- (Rupees fifteen lakhs only) which includes medical expenses spent by the Complainant along with interest at the rate of 12% p.a. from the date of complaint till the date of payment. Opposite Party No.4 i.e., Gandhi Hospital shall pay Rs.10,000/- (Rupees ten thousand only) as damages to the Complainant. On failure to pay Rs.10,000/- by the Opposite Party No.4 within the stipulated time, then the Opposite Party No.4 is liable to pay interest at the rate of 12% p.a. from the date of failure till the date of payment.

Further, Opposite Party No.1 and 4 jointly and severally shall pay Rs.5,000/- (Rupees five thousand only) as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

The complaint against Opposite Party No.2 and 3 is hereby dismissed.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 47 dictated to the Sheristedar typed by her, revised and pronounced in the open court on this day, the 29^th day of April 2015)

PRESIDENT MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Shrilatha Hegde – Complainant.

CW2 – Sri. Shivaprasad Shetty, Marketing Consultant in A.J. Hospital & Research

Centre, Mangalore.

CW3 – Dr.Naveen Chandra Bhandary, Doctor and specialized in M.D.

Dermatology at Muscat, brother-in-law of the deceased.

CW4 – Sri.Shivaprasad Hegde, brother of the deceased.

Documents marked on behalf of the Complainant:

Ex C1 – 08.06.2010: Prescription issued by the Opposite Party No.1.

Ex C2 – 08.06.2010: Sonography of the abdomen.

Ex C3 – : Prescription from 2004 to May 2010 issued by Opposite Party No.1 (17 in Nos).

Ex C4 – 06.05.2014: Treadmill test summary report pertaining to Mr.Mahim Hegde.

Ex C5 – 10.06.2010: Certified copies of medical records of Gandhi Hospital Udupi (3 sheets).

Ex C6 – 18.12.2010: Copy of the legal notice.

Ex C7 – 21.12.2010: Copy of the legal notice.

Ex C8 – : Acknowledgement cards (6 in nos.).

Ex C9 – 10.06.2010: Copy of reference letter issued by Opposite Party No.1 to

Opposite Party No.2.

Ex C10 – : Copy of medical literature & code of Ethics Regulations 2002.

Ex C11 – 10.06.2010: Discharge bill issued by Yenepoya Specialty Hospital,

Mangalore.

Ex C12 – 20.01.2011: Reply issued by the Opposite Party to the Complainant’s legal notice.

Ex C13 – : C.D. relating to CAG and PTCA of Mr. Mahim Hegde.

Ex C14 – : Postal Cover sent by the Opposite Party No.4 hospital.

Ex C15 – : Certified copy of hospital records (21 sheets).

Ex C16 – 27.09.2004: Test report.

Ex C17 – 27.09.2004: Test report.

Ex C18 – 06.05.2004: Test report.

Ex C19 – 06.05.2004: Test report.

Ex C20 – : Prescription issued by Opposite Party No.1.

Ex C21 – : ‘B’ Register Extract.

Ex C22 – 07.07.2010: Bill of Gandhi Hospital.

Ex C23 – 07.07.2010: Receipt of Gandhi Hospital.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Koteshwaraiah, Cath Lab Technician at A.J. Hospital, Mangalore.

RW2 – Dr.Praveen J.Shetty, Opposite Party No.2 – Practicing Consultant

Interventional Cardiologist at Opposite Party No.3 hospital.

RW3 – Dr.Ashok Kumar Y.G., Opposite Party No.1, Consultant Physician in

Internal Medicine including Nephrology & Cardiology.

RW4 – Dr.M.Harishchandra, Managing Director, Gandhi Hospital i.e., Opposite

Party No.4 hospital.

Documents marked on behalf of the Opposite Parties:

Ex R1 – : Case Record of Yenepoya Specialty Hospital.

Ex R2 – : Notarized copy of Certificate of Registration of OP No.2.

Ex R2A– : Copy of PTCA/PTMC Register of the A.J.Hospital & Research Centre.

Ex R3 – : Notarized copy of MBBS Certificate of OP No.2.

Ex R4 – : Notarized copy of MD Certificate issued by RGUHS of Opposite Party No.2.

Ex R5 – : Notarized copy of DM Certificate in Cardiology of Opposite Party No.2.

Ex R6 – : Notarized copy of Certificate issued by National Board of Examinations, New Delhi of Opposite Party No.2.

Ex R7 – 28.02.2010: Death Certificate of Ganesh Shetty submitted by Opposite Party No.1.

Ex R8 – 13.06.2012: Letter issued by Mangalore University along with duly attested Syllabus.

Ex R9 – : Notarized copy of Certificate of M.D in General Medicine of Opposite Party No.1.

Ex R10 – 09.03.1991: Notarized copy of Certificate for having completed MD in

General Medicines of Opposite Party No.1.

Ex R10(A) – 05.06.2010: Computerized extract of Bill issued at Okude Medicals

to Mahim Kumar Hegde.

Ex R11 – : Certificate of participation in 56^th Annual Conference of Cardiological Society of India of Opposite Party No.1.

Ex R12 – : Certificate of participation in 7^th annual conference of Indian College of Cardiology of Opposite Party No.1.

Ex R13 – : Certificate for attending 5^th AC of Cardiological Society of India by Opposite Party No.1.

Ex R14 – : Certificate of participation in conference of Critical Care Medicines by Opposite Party No.1.

Ex R15 – : Certificate of participation and training in STEMI by Opposite Party No.1.

Ex R16 – : Certificate of participation in 3^rd International Symposia on Diabetes 2008 conducted by Joslin Diabetes Centre by Opposite Party No.1.

Ex R17 – : Certificate of participation in 34^th Annual Conference of Research Society by Opposite Party No.1.

Ex R18 – : Certificate of participation in 2^nd Annual Conference & CME 2003 by Opposite Party No.1.

Ex R19 – : Certificate for having attended best of ESC, India 2008 by Opposite Party No.1.

Ex R20 – : Certificate of participation in Cardio Diabetology update 2003 by Opposite Party No.1.

Ex R21 – : Certificate issued by EBAC for participating in European course on Revascularization by Opposite Party No.1.

Ex R22 – : Certificate of attendance issued by MI International Heart & Health Care Foundation in European course on Revascularization by Opposite Party No.1.

Ex R23 – : Certificate of Participation in Conference of Coronary Artery Disease 2004 by Opposite Party No.1.

Ex R24 – 05.06.2010: Computerized Extract of bill issued at Okude Medicals to

Mahim Kumar Hegde.

Ex R25 – 08.06.2010: Computerized Extract of bill issued at Okude Medicals to

Mahim Kumar Hegde.

Ex R26 – 08.06.2010: Computerized Extract of bill issued at Okude Medicals to

Mahim Kumar Hegde.

Ex R27 – 08.06.2010: O/C of post exercise ECG taken by the Opposite Party No.1 in respect of the deceased.

Ex R28 – 10.06.2010: Copy of bill issued to Complainant in respect of various charges i.e., Rs.1,090/- and ECG charge of Rs.200/-.

Ex R29 – : Original Case sheet of deceased Mahim Kumar Hegde issued by Gandhi Hospital, Udupi (it contains 7 sheets).

Ex R30 – : Bill book (duplicate book) from No.1401 to 1600 maintained at O.P. No.4 hospital.

Ex R31 – : Cash Bill Book (duplicate) from No.15601 to15800

maintained at Opposite Party No.4 hospital.

Ex R32 – : Cash Bill Book (duplicate) from No.10601-10800 maintained at Opposite Party No.4 hospital.

Ex R33 – 28.04.2010: True copy of invoice for purchase of Ambulance by Opposite Party No.4 hospital.

Ex R34 – 26.11.2010: Letter issued by Gandhi Hospital to the Complainant.

Ex R34(A) – : Postal Acknowledgement.

Ex R35 – 22.11.2010: Letter of the Complainant to the Opposite Party No.4.

Ex R36 – 05.03.2012: List of records produced by Opposite Party No.3 as per the order of the Forum on the summoning application filed by the Complainant.

Ex R37 – 05.03.2012: List of records produced by Opposite Party No.4 as per the order of the Forum on the summoning application filed by the Complainant.

Dated:29.04.2015 PRESIDENT

[HON'BLE MRS. Smt.Asha Shetty]

PRESIDENT

[HON'BLE MR. Nirmala Kumar B.]

MEMBER

[HON'BLE MRS. Lavanya . M. Rai]

MEMBER

Karnataka

Dakshina Kannada

CC/144/2011

Mrs. Shrilatha Hegde, - Complainant(s)

Versus

1.Dr. Ashok Kumar Y.G - Opp.Party(s)

Mrs. Latha C.S. Holla

22 Apr 2015

ORDER

Dated the 29^thof April 2015

Reasons

ORDER

PRESIDENT MEMBER

Witnesses examined on behalf of the Complainant:

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Karnataka

Dakshina Kannada

CC/144/2011

Mrs. Shrilatha Hegde, - Complainant(s)

Versus

1.Dr. Ashok Kumar Y.G - Opp.Party(s)

Mrs. Latha C.S. Holla

22 Apr 2015

ORDER

Dated the 29th of April 2015

Reasons

ORDER

PRESIDENT MEMBER

Witnesses examined on behalf of the Complainant:

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Dated the 29^thof April 2015