DOF. 31 / 5 /06

DOO.24/6/10

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 24^th  day of June    2010

C.C.No.109/2006

V.Sreenivasan,

Varikkaniyil House,

Velimanam.P.O.          

(Rep. by Adv.C.K.Sreekumar)                                     Complainant

1. Dr.M.K.Pranbhaakran,

    ENT Surgeon,

    Koyili Hospital, Kannur 4.   

   (Rep. by Adv.P.Mahamood)                         Opposite parties

2. Managing Partner,

    Koyili Hospital, Kannur 4.

    (Rep. by Adv.P.Mahamood)

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under sectin12 of consumer protection act of an order directing the opposite parties to pay Rs.50, 000/- as compensation and to refund the hospital charge Rs.1400/- together with the cost of this proceedings.

            The case of the complainant in brief is as follows: Complainant while taking food a piece of chicken bone has got struck in the esophagus on 21.4.06. Very next day on 22.4.06 he felt pain and sufferings and gone to Govt. Hospital and met doctor. X-ray of neck was taken and doctor told him that piece of bone seen in esophagus but since there are no equipments to remove it he has to get it done somewhere else. He could not go anywhere on that day since he was not having money. Next day on24.4.06 he went to Koyili Hospital, Kannur. The ENT Surgeon Dr.M.K.Prabhakaran examined him and informed that something is seen in esophagus but it can be removed only after keeping him nil orally. Consent was given and he was taken to operation theatre at about 12.0’clock. Meanwhile he paid a bill of Rs.150/- in cash and brought medicines for Rs.300/-. When the complainant became conscious after operation he felt the pain same as he had earlier. When it was informed to the nurse he was told that was only a feeling because it was removed by the doctor. He was then removed to the bed in the ward at about 3 p.m. The bystander Mathew informed the doctor that the complainant was suffering from same pain and trouble as he suffered earlier he was told by the doctor that the piece of b one was removed and the pain is due to the injury caused by the bone and it will be alright by the day. Sane day in between 7 p.m and 8 p.m due to pain and block he started cough many a  time and finally the bone that struck in esophagus came out of cough. Then he got relief and got free from pain. The piece of bone kept with him. When he told this fact to the doctor he got angry and discharged him telling him to go home. He paid a bill of Rs.1410/- which includes a fee of Rs.700/- for the operation. The negligence and deficiency on the part of opposite party caused very many sufferings to complainant. He was removed to the ward bed from Operation Theater without removing the bone piece from the esophagus but making him under the impression that it was removed. Opposite parties received the amount without giving him any treatment. Hence they are liable jointly and severally to compensate the loss sustained by the complainant. Hence this complaint.

            Pursuant to the notice opposite parties entered appearance and filed version separately denying the main allegations of the complainant.

            Brief facts of the contentions of 1^st opposite party are as follows; the complainant came to ENT out patient department of the 2^nd opposite party hospital on 4.4.06 with the compliant of pain on swallowing. He gave a history of foreign body (chicken bone) in the esophagus since 21.4.06. The complainant went to Dist. Hospital, Kannur on 22.4.06 when   an X-ray of neck was taken, which showed a foreign body in the upper part of the esophagus. The 1^st opposite party after examining the patient and the X-ray advised the patient that the ideal treatment is to remove the foreign body using a rigid esophagoscopy under general anesthesia. Since the patient had delayed coming to him by more than 3 days, the patient and his relatives were informed that there could be severe edema of the mucosa of the esophagus, which could make it very difficult to pass an esophagoscopy. The other possible complications were also explained to the complainant and his relatives. The 1^st opposite party hence advised the complainant that it would be better to go a higher center like Pariyaram Medical College. But the complainant insisted that he would prefer to get it removed from 2^nd opposite party hospital itself. The patient was informed that it would be done only after keeping him nil orally for 04 hours. After the necessary investigation the patient was taken to the operation theatre. General Anesthesia was given and the rigid esophagoscopy was passed in to the esophagus. In this case there was severing edema or an inflammation so chances of bleeding are very high. Hence the esophagoscopy had to be passed very carefully. A little amount of extra pressure was required to pass the esophagus because of the narrowing of the lumen. If the pressure applied was too much there could be sever bleeding and even sometimes perforation. Despite all these difficulties the esophagoscopy was passed up to the lower end of the esophagus but the foreign body could not be visualized. Hence the procedure of passing the esophagoscopy was repeated once more but the foreign body could not be visualized. Repeated attempts were not done lest it should cause injury to the esophagus. The reason for not visualizing the foreign body was probably because the foreign body being a small piece may have been embedded into the mucosa. The other reason could be due to the foreign body going down into the stomach. This was explained to the relatives of the complainant. He was also informed that the position of foreign body could be confirmed only by taking an X-ray. The X-ray was planned to be repeated next day the patient was drowsy as a result of general anesthesia. The relatives were also informed that  there was nothing to worry if the foreign body had reached the stomach but if it was embedded in the esophageal mucus then the patient would have to be referred to a higher centre. But later the patient when coughed this embedded small foreign body got dislodged and was ejected in to the mouth. The next day patient was discharged the allegation that the nurse did not pay attention to him and told foreign body had been removed etc. were only false. The operation notes clearly mentioned that esophagiscope done under general anesthesia, no foreign body seen. The averment that the complainant had undergone a lot of difficulties because of the carelessness and negligence of opposite parties is false and baseless. The discomfort which complainant had to undergo was actually due to the delay that happened in consulting the 1^st opposite party. The incident was on 21.4.06 but the complainant came to the 1^st opposite party only on 24.4.06. This delay of three days had resulted in severe edema of the esophagus and narrowing of the lumen of the esophagus. In all probability the delay in reporting to the 1^st opposite party had resulted in getting embedded the foreign body in the esophageal wall. He paid the charge Rs.1400/- for the service given to him. There is no deficiency of service on the part of opposite parties. Hence to dismiss the complaint.

            2^nd opposite party filed version the content of which is almost same as that of the contentions raised by 1s opposite party. Hence it is not repeated here.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of opposite parties?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Releif and cost.

            The evidence consists of the oral evidence of PW1, DW1, Exts.A1 and A2, MO1 and B1.

Issue Nos. 1 to 3

            Admittedly complainant admitted in the 2^nd opposite party hospital on 24.4.06. The case of the complaint is that while eating chicken a piece of chicken bone got struck in the esophagus on 21.4.06. He went to Govt. Hospital on22.4.06 and on examining X-ray it could be found a foreign body in the esophageal part. Then the doctor advised him to go some where else to remove it where there are equipments.  Next day on 24.4.06 he went to 2^nd opposite party. ENT surgeon examined him for removal. He was taken to operation theatre for operation. Even after operation complainant felt pain and uneasiness. When it was informed to nurse  he was told that it was only a feeling and the foreign body has already been removed by the doctor. At about 3 p.m he was shifted to ward. Doctor was informed about this pain and trouble by his friend Mathew but the answer was that the foreign body has already been taken out and pain is only due to the injury caused by the bone, which will be alright with in a day. But on the same day in between 7 p.m and 8 p.m, he was suffered with repeated cough and finally the foreign body that was strucked in the esophagus ejected into the mouth. When this fact was told to the doctor he got angry and discharged telling him to go home. He paid rs.1410/- including Rs.700/- as operation fee. The complainant alleges that opposite parties received the amount from him without giving any treatment and he suffered much pain and sufferings due to this negligent act of opposite parties.

            Whereas the opposite parties contended that the pain and discomfort which the complainant had to undergo was actually due to the delay for the consultation. The incident was on 21.4.06 but the complainant came to 2^nd opposite party only on 24.4.06 by the time sever edema of the esophagus and narrowing of lemur of the esophagus resulted. The delay had resulted in getting embedded the foreign body in the esophageal wall. Opposite party also admitted that he has paid Rs.1410/- but the complaint was given various services as follows: The complainant was examined, General Anesthetic drugs and equipments were used, the service of the anesthetist was utilized .The facilities of the operation theatre was utilized, nursing care was given, ward facilities were used and procedure esophagoscopy was done with great difficulty taking a lot of risk. For all this a meager amount of Rs.1400/- was only charged.

            Mr.Sreenivasan, the complainant filed proof affidavit in lieu of chief in tune with the pleadings. In the cross examination he has deposed that  kÀ¡mÀ-B-ip-]-{Xn-bnÂ\n¶p X-ray FSp-¯p. sXm­-bnÂap-f-fp-­m-bn-cp-¶p. acp-¶p-I-gn-¨n-«vt]m-bn-sÃ-¦n FSp-¡m-sa¶p ]d-ªp. 2 Znh-k-T-I-gn-ªmWv Bip-]-{Xn-bn t]mb-Xv. AhnsS FSp-¡m-\p-f-f-k-T-hn-[m-\-an-Ã. asä-hn-sS-sb-¦n-epT t]mIm³ ]d-ªp.-A-t¸m-tg-¡pT 2Zn-h-k-ambn thZ-\-Iq-Sn-bn-cp-¶p. `£-W-T-I-gn-¡p-T-t]mÄ IqSp-X hnj-aT tXm¶n. ]n¶oSv apf-fp-X-d-¨Xnsâ  3–#TZnh-k-amWv  sImbn-en-bn t]mb-Xv. 24.4.06 \mWv  sImbn-en-bn  t]mb-Xp-F-¶p-]-d-ªm HmÀ½-bn-Ã.  Ext.A2 discharge summary goes to show that patient was admitted in the hospital on24.4.06 and date of discharge on25.4.06. It is admitted in the complaint that incident taken place on21.4.06. Hence it can be seen that patient was admitted in the hospital on the 4^th day of incident. 1^st opposite party doctor filed in his proof affidavit given evidence that the delay of 3 days had resulted in severed edema of the esophagus narrowing of the lumen of the esophagus. He further added in all probability the delay in reporting to this first opposite party had resulted in the foreign body getting embedded in the esophageal wall. This fact was not questioned by the complainant and there is no evidence contrary to that. The delay of three days is a material fact admitted under such circumstances the evidence of PW1 the delay of three days is a material fact admitted. Under such circumstances the evidence of PW1 the delay resulted in severe edema of the esophagus cannot be rejected until it is supported by contra evidence ruling out the chance of resulting in such severe edema. If that be so the probability of getting foreign body embedded in the esophageal wall cannot be ruled out.

 It can be seen that 1^st opposite party doctor attended the patient and investigation carried out immediately. He examined the patient and X-ray. Proof affidavit shows that the patient was advised that the   ideal treatment is to remove the foreign body using rigid esophagoscopy under general anesthesia. It is an admitted fact that consent of the patient was obtained. Ext.B1 sheet 3 reveals that consent was given for the purpose of giving anesthesia and to conduct necessary procedure on 24.4.06. The procedure done was esophagoscopy.  1^st opposite party Doctor adduced evidence by proof affidavit in lieu of chief examination that the rigid esophagoscopy was passed into esophagus. The esophagus was passed up to the lower end of the esophagus but the foreign body could not be visualized. Hence the procedure of passing the esophagoscopy was repeated once more. Even then foreign body could be visualized. Repetition avoided because of possibility of causing injury to esophagus. Ext.B1 case sheet page 3 operation note reveals that esophagoscopy was done and recorded” NO FB Seen”. It can also be seen on the back side of the same page the signature of the patient where his consent was obtained for conducting the procedure.

            Complainant has no case procedure was not done. He has also no case that there are any other treatments better than that is done by 1^st opposite party doctor. The line of treatment adopted by the doctor has not been questioned at any stage and he has no complaint regarding preparations and precautions including preliminary examination before the procedure. The available evidence on record shows that the patient was attended right from his reporting, which is a delayed case of3 days. The pleadings and proof affidavit of complainant reveals that 1^st opposite party doctor has advised the patient about the treatment and need for applying of general anesthesia for which he has given consent. Ext.B1 proves that esophagoscopy was done but the foreign body could not be visualized. Complaint of the complainant after procedure was that he had pain and difficulties in esophagus same as he had been suffered before undergoing the procedure. Since Ext.B1 proves that foreign body could not been visualized it can be assured the cause for the pain and difficulties was due to the presence of foreign body in esophagus itself. Now the question arose is whether the presence of foreign body in esophagus even after the esophagoscopy is due to the negligence or deficiency in service on the part of 1st opposite party? It is a fact that esophagoscopy was done and operation note makes it clear that MO1 foreign body could not be visualized. Esophagoscopy is a highly delectated procedure which can only be done with certain amount of risk and utmost care.

            Now it has to be looked into whether the evidence available on record reveals that there was dereliction on the part of 1^st opposite party doctor in treating the patient. Hon’ble S.C in its decision in Dr.Laxmanan Balakrishna Joshi vs. D.Trimbak Bapu Godol & Anr. (AIR 1969 SC 128) dealt with the duties of doctor in Para II thus: 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”. Thus the evidences in this regard against the doctor has to be appreciated in the context of the aforesaid law laid down by the S.C. So the question arose is whether he has discharged his duties to the best of his ability and with due care and caution? The negligence can only be attributed upon him only if he has not performed his duties to the best of his ability and without due care and caution.

            The evidence shows that the doctor carried out the procedure successfully though the foreign body could not visualize. Esophagoscopy is a highly delectated procedure, where there is risk which, if not done with care and caution cause injury or complication It is a fact that there was no complication due to the procedure done by the doctor  1^st opposite party. Ex.B1 reveals that esophagoscopy was done but the foreign body could not be visualized. Esophagoscopy if done without complication that only indicates that the procedure has been done with due care and caution. It cannot be ignored this is a delayed case of more than 3 days. Delay causes the degree of risk more. In such a case if esophagoscopy is done without complication it can only be assumed that the procedure had been performed with enough care and caution in which negligence or deficiency in service cannot be attributed on the side of the doctor even if the fact,  that the foreign body ‘could not be visualized’ has been taken into account. Non visualization of foreign body may be due to various reasons. The relevant question is whether the procedure and attempt were carried out with reasonable degree of skill and knowledge together with enough care and caution. The available evidence on record in the above case makes it clear that 1^st opposite party preformed the procedure with reasonable degree of skill and knowledge with enough care and caution.

In view of the above discussion we are of opinion that no negligence can be attributed on the part of the opposite parties and hold that complainant has failed to prove the deficiency of service against the opposite parties. Thus the issues 1 to 3 are answered against the complainant.

In the result, complaint is dismissed. No order as to costs.

                                    Sd/-                            Sd/-              Sd/-

President                      Member           Member.

APPENDIX

Exhibits for the complainant

A1.Bills issued by OP

A2.Discharge summary issued by OPp

MO1.Chicken parts (FB)

Exhibits  for the opposite parties

B1.Case sheet of complainant maintained  by OP

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.Dr.M.K.Prabhakaran                  /forwarded by order/

Senior Superintendent

Consumer Disputes Redressal Forum, Kannur