Andhra Pradesh

Nellore

CC/32/2012

SK.Maqsood - Complainant(s)

Versus

1.The Superintendent Narayana General Hospital - Opp.Party(s)

R.N.Suneetha

31 Aug 2015

ORDER

                                          Date of filing       :  24-04-2012

                                            Date of disposal  :   31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the 31st day of  AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                                        

                                 C.C.No.32/2012

 

Sk.Maqsood

S/o.Chote Saheb,

Aged about     years,

Previously construction coolie,

R/o.Gandavaram(V),

Kodavalur(M),

Nellore(Dt)                                                            …         Complainant

 

                      Vs.

                                                                            

1.The Superintendent,

    Narayana General Hospital,

    (Affiliated to Narayana Medical College)

    Chinthareddypalem,

    Nellore.

 

2. Dr.B.L.S.Kumar,

    Narayana General Hospital,

    (affiliated to Narayana Medical College)

    Chinthareddypalem,

    Nellore.

 

3. Dr.R.Anjani Kumar,

    Orthopeadic Surgeon

    Narayana Hospital,

    Nellore.

 

(3^rd opposite party is added as per orders in

    I.A.No.64/2013, dated 10-04-2014)                   …          Opposite parties

 

This matter coming on  12-08-2015  before us for final hearing in the presence of Kum.R.N.Suneetha, Advocate for the complainant and  Sri P.Vijaya Kumara Reddy, Advocate for the opposite party Nos.1 and 2, opposite party No.3 remained absent and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

       This consumer case is filed by the complainant against the opposite parties 1 to 3 to direct them to pay an amount of Rs.50,000/- being the amount spent by him for undergoing two surgeries and for medicines; to pay him an amount of Rs.15,00,000/- towards compensation and also Rs.3,00,000/- towards damages, on account of opposite parties’ illegal, improper and negligent operation done without proper diagnosis, without taking care of his health and without following rules and also to pay Rs.15,000/- towards costs of the case and pass such other relief or reliefs as the Hon’ble Consumer Forum may deem it fit and proper in the circumstances of the case in the interests of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a)  It is the case of the complainant that he was hale and healthy and a construction coolie.  While so, on 28-11-2009 he was attending to his regular coolie work, he fell down and immediately he was shifted to the hospital of 1^st opposite party. The 2^nd opposite party was tested him and found that there was a pain at junction of middle 1/3 of lower left humerus  with fracture.

(b) It is also further submitted by the complainant in para 4 of his complaint that he was suffering with pain tenderness, swelling, deformity over left humerus .  He was advised to join in the hospital of 1^st opposite party and he was admitted on the same day with I.P.No.20091109731.  He was advised to undergo a surgery by 2^nd opposite party in the hospital of 1^st opposite party.  The opposite party no.2 did surgery by correction of long bone fracture or if with narrow DC place humerus done of the complainant.  He was discharged on 15-12-2009 with an advice to him to come after one month.  The photocopy of the complainant’s discharge was filed.  The medical receipt original dt.01-12-2009 had also filed and both of them were before the Hon’ble Consumer Forum to treat them as the documents 1 and 2 and they may be read as part and parcel of this Consumer Case.  

( c ) It is also submitted by the complainant in para 5 of his complaint that he was even after operation suffering with pain and swelling at junction of middle 1/3 and lower 1/3^rd of left humerus.  The 2^nd opposite party advised him to undertake the treatment of physiotherapy and so he underwent physiotherapy for a period of nearly one month in the hospital of 1^st opposite party.  Thereafter, even after physiotherapy treatment of him and there was no change in his health condition.  The implant receipts dt.12-1-2010 were two in number also filed and they may be treated as document no.3.  Drug receipt in original dt.16-01-2010 may be treated as document no.4.  Subsequently again, the complainant had approached 2^nd opposite party in the hospital of 1^st opposite party.  Then, the 2^nd opposite party had advised him to undergo another surgery once again and so he was admitted in the hospital of 1^st opposite party I.P.no.11527 on 25-02-2010 and he underwent a second surgery on 26-02-2010 with regard to bone grafting as exclusive procedure and even after his second surgery there was non-union fracture shaft humerus  M/3 with implant. X-ray special procedure original dt.27-02-2010 was also filed along with complaint as document no.5.   He was discharged from the hospital of 1^st opposite party on 3-3-2010.  The complainant again after second surgery was suffering with pain over middle 1/3 of arm with crepitus and deformity and weakness in grip with tenderness swelling.  The photocopy of the discharge summary dt.     03-03-2010 was also filed to treat it as document no.6 and the original receipt of the same as document no.7 and also physiotherapy original receipts (6) in number were also filed as document no.8.

(d)  It is also further submitted by the complainant that in para 6 of his complaint that there was no improvement in his health position and again he had approached 2^nd opposite party in the hospital of 1^st opposite party.  The 2^nd opposite party had advised him to take ultra sound and thereby he took the same and after perusing the report, the 2^nd opposite party referred him to plastic surgeon on 1^st opposite party’s hospital.  The observation of 2^nd opposite party was as follows as – the case is a post opposite party shaft of (L) humerus  wrist drop, now patient (complainant) was having wrist drop patient referred to plastic surgeon.  The photo copy of ultra sound report dt.19-05-2010 which was treated to be the document no.9 and its original opposite party card dt.21-05-2010 may be treated as document no.10.

(e)  It is also further submitted by the complainant in paras-7 and 8 of his complaint that he took medicines with an advice of plastic surgeon, even then there was no change in his health condition and his left hand movement was limited. The complainant had before proceeding to the head quarters hospital, Nellore, approached both the opposite parties 1 and 2 to take back their case-sheet but he was informed that if any problem will arise in future, they will treat him, hence, so they could not handover the  case-sheet to him, which itself amounts to negligence on the part of the opposite parties 1 and 2.  The complainant is still suffering and unable to do any work.  While so, the complainant had no other go approached D.S.R.H.Quarters Hospital, Nellore, where his case was referred to District Medical Board, Nellore.  The photocopy of the same and issued certificate by District Medical Board, Nellore dated 24-1-2012, was filed here along with complaint as document no.11.  Because, due to conducting the surgery negligently by the opposite parties 1 and 2 to the complainant and their dereliction of duty on the part of them.  So, the complainant had suffering  from the last 2 years, and now also he can never take hard tasks even now not having any movement of his left hand  and he was declared handicapped by the District Medical Board, Nellore.  As said above, he was living by cooli work prior to operation, now he is not able to do any work for his livelihood and thereby lost his livelihood.  

 

(f)    It is also further submitted by the complainant in paras-9 and 10 of his complaint that he got issued a legal notice dated 3-4-2012 and the same was herewith filed along with this complaint as a document No.12 and  postal receipts two in numbers were also filed and they may be considered as document No.14.  The entire medical expenses of the complainant were nearly comes to  an amount of Rs.1,50,000/-  and he was a beneficiary under Rajiv Arogya Sree and the hospital of the 2^nd opposite party had received an amount of Rs.1,20,000/- from the Government and he had paid  the remaining amount of Rs.30,000/-. 

(g)  There are causes of action to file this complaint before this Hon’ble Consumer Forum which are narrated in para – 11 of the complaint.    Hence, the complaint.

 

II.  DEFENCE:  The contents of the written version/counter of the 1^st and 2^nd opposite parties:

  (i)  The opposite parties were resisted the complaint by filing a written version/counter dt.10-12-2012 of 1^st and 2nd opposite parties denying the allegations of the complainant. The 3^rd opposite party was remained absent. Those allegations are false and the complaint was not maintainable either in law on facts.  It was true that the complainant had approached the hospital of 1^st opposite party on 28-11-2009 and took out-patient card for taking treatment at 2^nd opposite party for the alleged injury which he sustained.  It was also further submitted by them that the X-ray report dated 30-11-2009 which shows that  there was a fracture at the junction of middle one 1/3rd and lower 1/3rd of left humerus and complainant was advised by the 2^nd opposite party to undergo surgery.

(ii)    It is further submitted by the opposite parties 1 and 2 in para-4 of their written version/counter that  the clinical history of the complainant shows that he was complaining of pain and swelling  at the junction of middle of 1/3^rd and lower 1/3rd of humerus. While so, on examination of him, it was found that there was tenderness, swelling and deformity over the left humerus.  The complainant had underwent surgery on 1-12-2009 for correction of long bone fracture and the procedure performed was “Orif with the narrow DC plat left humerus”.  It was as seen from the operation notes dated 1-12-2009, the surgery was done by Dr.R.Anjani Kumar, M.S.(Ortho)  the then Assistant Professor of Orthopedics  of the hospital of opposite party No.1.  The above said surgery was not done by the 2^nd opposite party.  But, however the complainant was examined by the 2^nd opposite party as out-patient at department of Orthopedics on 28-11-2009.  Since, the surgery was done by the Dr.Anjani Kumar on 1-12-2009, the 2^nd opposite party was not responsible for the surgery done by the Dr.R.Anjani Kumar in the hospital of 1^st opposite party.  Dr.Anjani Kumar left the service of the hospital 1^st opposite party on 25-01-2010.

(iii)  It is also further submitted by the 2^nd opposite party in paras-5 and 6 of written version/counter that he had explained to the complainant’s wife the risk factors commonly occur and the complications it, may be developed post-surgery operatively.  While so, on explaining the risk factors on the complications, high risk consent was given by the complainant on               1-12-2009 by affixing his signature on the high risk consent form before undergoing surgery.  According to the discharge summary, the status of complainant at the time of discharge on 15-12-2009 was stable and he was advised to come and review after one month i.e., on 15-01-2010.  The complainant’s wife also has signed in the discharge summary on behalf of the complainant wherein it was stated that the status of her husband was stable at the time of discharge.   

(iv)    It is also further submitted by the 2^nd opposite party in paras–7,8 and 9   the written version/counter that the 1^st and 2^nd opposite parties were not aware of the treatment of the physiotherapy which the complainant underwent at the hospital of 1^st opposite party.  After the lapse of 2 months from the date of the discharge (15-12-2009), the complainant had approached the hospital of 1^st opposite party on 24-02-2010 with a complaint of non-union fracture shaft humerus and pain over middle 1/3 rd of Arm with crepitus  and deformity and weakness in grip.  The complainant had developed post-operative NEURO PRAXIA OF RADIAL NERVE, which was said to be common complication after surgery as fixation of implant to fracture cause irritation to nerve.  So, the complainant was advised for regular follow up due to the development of   NEURO PRAXIA OF RADIAL NERVE.  The 2^nd opposite party had immobilized the limb with slab post-operatively for six weeks to avoid further damage.  Inspite of immobilization, complainant had persistent wrist drop and non-union of humerus.  Hence, the complainant was advised to undergo 2^nd surgery for non-union in view of re-exploration and bone grafting.  Because of non union fracture shaft humerus middle 1/3^rd with implant treatment was done on 26-02-2010 by grafting the bone by the 2^nd opposite party.  All precautionary measures and extreme efforts were taken by the 2^nd opposite party during 2^nd surgery was done on the above said date on 26-02-2010 due to which the complainant’s bone got union.  The complainant was in-patient at the hospital of 1^st opposite party from 25-02-2010 to 3-3-2010 in the 2^nd spell and later on he was discharged on 3-3-2010.  His status at the time of discharge was satisfactory as per the discharge summary which was acknowledged by complainant’s wife on behalf of the complainant.  Later on, he was advised to come for follow up after 15 days, at the time of his discharge from the hospital. But, there was a long gap between the date of discharge             15-12-2009 and dated 24-02-2010 on which complainant had approached the 2^nd opposite party for non-union of fracture.  So, the opposite parties were not responsible for the acts of the complainant and mis-happenings during the period in between the above said dates.  The complainant might have not taken proper care to heal the wound for which surgery was done on 1-12-2009.  During the above said period (dates 15-12-2009 to 24-02-2010) in between them, might have taken treatment from the person not qualified for which the opposite parties 1 and 2 herein are not responsible.

(v)  It is further submitted by the 2^nd opposite party in paras 10 to 13 of the written version/counter that a few days after discharge of the complainant on 3-3-2010, he had approached the 2^nd opposite party for post-operative check up and thereafter 2^nd opposite party had observed that there is wrist drop for which she was referred to plastic surgeon of the hospital of the 1^st opposite party.  Later on, the 2^nd opposite party after discussing with the plastic surgeon it was planned for treating the wrist drop of the complainant and hence 2^nd opposite party along with plastic surgeon conducted ENMG Studies.  While so, on conducting ENMG study, both the 2^nd opposite party and the plastic surgeon have come to a conclusion and suggested the complainant to undergo treatment of  TENDER TRANSFER  due to which his wrist drop could be recovered.  The plastic surgeon of the 1^st opposite party has opined that TENDER TRANSFER   should be attempted only when the power of transferring tender is near normal.    Inspite of the advice given by both of them, the complainant was not willing for TENDER TRANSFER  and he had shown a deaf-ear to the above said suggestion of the said doctors.  He has lost the follow up completely from that time onwards.  The complainant had opted for TENDER TRANSFER,  at that time he might have been relieved from the wrist drop, but he had neglected  a period of 3 to 7 months and due to his ignorance and not follow up action taken by him.  It was gross-negligence on the part of the complainant himself.  Even then, there was a treatment option for TENDER TRANSFER  which can be treated in the 1^st opposite party’s hospital.  But, he denied to attend their hospital for his further treatment.  The mere allegations of the complainant against the opposite parties that he had approached them for case-sheet was a false. He had never approached them for case-sheets.  It is the practice of the hospital of 1^st opposite party that case-sheets of the patient were kept in the custody of the hospital of the 1^st opposite party and as such no case sheet was given to any patient.  But had the complainant requested the appropriate authorities of the 1^st opposite party, xerox of the case-sheet, would have been provided to him.  The opposite parties 1 and 2 were not aware of his act of approaching D.S.R.Head Quarters, Nellore and they were also not aware of this case was referred to District Medical Board, Nellore.  At the time of 1^st visit of the complainant to the hospital of the 1^st opposite party on 28-11-2009 he had stated that he was not an earning person while taking his case history.  The complainant’s wife had narrated to the 2^nd opposite party about her husband, the complainant seems to be inbalanced in his day to day normal routine functions of his life and he requires health of somebody and was not an active person so the statement of the complainant that he was a construction worker and he was hale and healthy was a falsehood and it was fabricated to get wrongful gain from the opposite parties 1 and 2. 

(vi)  It is also further submitted by the 2^nd opposite party in paras-14 and 15 of written version/counter that the allegations of the complainant against the opposite parties 1 and 2 in para-10 of the complaint that entire medical expenses were nearly amounting to Rs.1,50,000/- was totally false and he was put to strict proof of the same.  The complainant took treatment at the hospital of the 1^st opposite party under Rajiv Arogya Sri Scheme cashless facility.  But the actual medical expenses incurred amounting to Rs.33,100-89ps. As against the approval of Rs.22,000/- under  Rajiv Arogya Sri Scheme for a period of complainant’s stay in the hospital of the 1^st opposite party from 28-11-2009 to 14-12-2009 and also medical expenses were amounting to Rs.20,840/- incurred as against the approval of Rs.20,000/- under Rajiv Arogya Sree Scheme for the period of complainant’s stay in the hospital of 1^st opposite party from 24-02-2010 to 3-3-2010 in the 2^nd spell.  He had not paid any amount to the hospital to the 1^st opposite party towards medical expenses for surgeries he underwent during the period from 28-11-2009 to 14-12-2009 and from 24-02-2010 to 3-3-2010.  The hospital of the 1^st opposite party has borne additional expenditure over and above the approved amounts of Rs.22,000/- and Rs.20,000/- respectively sanctioned under Rajiv Arogya Sri Scheme.  There was no negligence and dereliction of duty on the part of opposite parties 1 and 2 in conducting surgeries and they were not responsible for the acts of the complainant after discharge from the hospital of the 1^st opposite party which resulted as alleged wrist drop.   They were not also liable for the lapses on the part of the complainant towards the 2^nd opposite party and plastic surgeon of the hospital of the 1^st opposite party during the period of last 2 years.  The 2^nd opposite party had explained to the complainant and his attendant i.e., his wife, risk factors commonly occurred and the complications which may be developed postoperative-surgery.   

 

(vii) It is also further submitted by the 2^nd opposite party in paras-14 to 18 of written version/counter that according to the 2^nd opposite party, Dr.B.L.S.Kumara Babu  is a qualified Orthopedic Surgeon having M.S.Ortho qualification and well experienced in undertaking various kinds of Orthopedic surgeries  including spine surgery.  He is an Assistant Professor of Orthopedic working in the hospital of 1^st opposite party.  Dr.R.Anjani Kumar is also qualified Orthopedic surgeon having M.S.Ortho Degree  and he conducted surgery well. The general hospital and super specialty hospital attached to Narayana Medical College, Nellore, are reputed medical institution having senior physicians and surgeons in various specialties, the 2^nd opposite party, Dr.B.L.S.Kumara Babu does surgeries meticulously duly taking utmost care. The plastic surgeon is also well qualified having M.Ch.(Plastic surgery) Degree recognized by the Medical Council of India.  But, the complainant had not followed the advice of the 2^nd opposite party and plastic surgeon to undergo tender transfer to regain wrist drop.  The complainant was also negligent to come for follow up/review after discharge for which they are not responsible.   The 1^st opposite party is established and managed by Narayana Educational Society, a registered body under Societies Registration Act and the hospital is attached to Narayana Medical college, Chintareddypalem, Nellore.  It is a teaching hospital which is having broad specialties like M.D./M.S. courses and super specialties like D.M. and M.Ch. courses in medicines and surgeries.  The said institution is self-financed by Narayana Educational Society and no financial aid or grant availed either from the State Government or from the Central Government.  Narayana Medical College, had been approved and recognized by the Medical Council of India and the Central Government. No commercial activity was involved while discharging the functions of the society in any institutions established and managed by Narayana Educational Society.   Faculty including the specialists working in the opposite parties hospital are well qualified, experienced and recognized by Medical Council of India.    The said reliefs in the complaint of the complainant are baseless and claims are illegal. 

(viii)  There were no causes of action and complaint was filed with an evil intention to get wrongful gain from the opposite parties and also to defame them.  In view of the above said facts and circumstances of the case explained, it is prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

III.  The complainant had filed his chief-affidavit as  evidence on 30-09-2014 and again additional chief-affidavit was also filed on 15-05-2015 and marked his documents on behalf of him as Exs.A1 to A15.  An another chief-affidavit of PW2, wife of the complainant had filed on 24-10-2014, whereas the 1^st opposite party and 2^nd opposite party had filed chief-affidavits on 1-4-2013 and there were no documents filed on behalf of the opposite parties 1 and 2 but written arguments filed by them on              15-07-2015.  The written arguments of the complainant were filed on        21-01-2015 and also additional written arguments of the case were also filed on 17-06-2015 in support of his case.

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

 

V.  POINTS 1 AND 2:

 

     In view of these two points 1 and 2 are inter-related with each other, we have taken up them for discussion and determination of the case.

 

Oral arguments of the learned counsel for the complainant:-

    The learned counsel for the complainant Ms.R.N.Suneetha has vehemently argued that the complaint, chief-affidavits of complainant and his wife (PW1 and PW2) and their written arguments of the case may be read as part and parcel of her oral arguments of the case.  She has further contended that during her arguments of the case, that a detailed description of the case with a documentary evidence with proof (Exs.A1 to A15) of the allegations of the complainant, which are made against the opposite parties, for reliefs sought for in the complaint, are clearly explained. And, she has also further argued that discharge summary (Ex.A1) and contents in Ex.A5 are relating to the complainant’s treatment particulars and signed by the 2^nd opposite party and the signature of Dr.Sri Anjani Kumar (opposite party No.3) was strike off and over writing on it for the reasons best known to the opposite parties.  It is rather doubtful why the opposite parties have erased the said signature of the 3^rd opposite party for their ultimate desire to cause harm to the complainant. Ex.A15 is also vital document to prove the health condition of the complainant and it is certified by Dr.B.V.Ramana Murthy who is opined that the chances of normalizing the wrist of the complainant is very low and the complainant cannot do heavy labour work and his left hand movement is very much restricted. She has also urged that the complainant took treatment on the advice of, in the hospital of 1^st opposite party under supervision of 2^nd opposite party, two surgeries are made with different alleged dates mentioned but not cured ailment suffering with by the complainant.  Ultimately, the complainant was referred to District Medical Board, Nellore for further treatment.  The complainant is a coolie by profession and unable to do any work.  The opposite parties 1 and 2 did not provide him the case-sheets inspite of his request and thereby it amounts to negligence by them.  The said learned counsel for the complainant has also further contended that there is no necessity for doing two surgeries of the complainant and thereby put him under pressure and drive him to plastic surgeon, if the opposite parties 1 and 2 would have taken in the line of treatment correctly and with clear diagnosis of the case perfectly at first instance, and when the complainant approached them for treatment does not arise again and again.  So, the treatment undertook by them on complainant, is much against medical standards.  The complainant is a beneficiary under Rajeev Arogyasree and the hospital of the 2^nd opposite party had received an amount of Rs.1,00,000/- from the government and he had also paid the remaining amount of Rs.50,000/-.  The complainant cannot take or lift hard tasks and even now he is not having any movement of his left hand and declared him, as a handicapped by District Medical board, Nellore (Ex.A11).  The complainant got issued a legal notice dt.          3-4-2012 to the opposite parties 1 and 2 which is marked (as Ex.A12). The opposite parties 1 and 2 are negligent in their attempts to treat the complainant and he had  suffered with immense pain since two years and in addition to much expenditure incurred to a tune of Rs.1,50,000/-.  There is a deficiency in service against the opposite parties 1 and 2 towards the complainant.  The complainant has no knowledge about the panel of doctors, who has treated him or some another doctor and the burden is on the opposite parties 1 and 2, the doctor and hospital are responsible for their negligent acts and caused much inconvenience, financial loss and mental worry to the complainant.  In addition to that in support of the case of the complainant, the said learned counsel has filed elaborate written arguments with case-law relating to the subject of medical negligence of the Hon’ble Apex court as well as  Hon’ble National Commission’s in reported journals, for their applicability of the ratio to the case on hand for a decision of the case.  Finally, she has also prayed that the Hon’ble Consumer Forum may be pleased to allow the complaint as prayed for.

 

 

 

Oral arguments of the learned counsel for the opposite parties 1 and 2 :-

   On the otherhand, Sri P.Vijaya Kumar Reddy, the learned counsel for the opposite parties 1 and 2 has also vehemently argued that the written version/counter, affidavits of opposite parties 1 and 2 and their written arguments may be read as part and parcel of his oral arguments of the case.  He has further argued that the opposite parties 1 and 2 had treated the complainant with utmost care according to medical standards and there is no iota of doubt as such with regard to the said doctors’ capability and they are well qualified and sufficiently equipped with knowledge to do surgeries for the said ailment of the complainant.  But the complainant did not turn up for following action in order to cure his disease and never cared about his health and now blaming the opposite parties 1 and 2  for their deficiency in service.  The said learned counsel for the opposite parties 1 and 2, has also further contended that in the written version as well as written arguments of the case which consists of an elaborate and much detailed explanation about the case referred with an appropriate case-law on the subject relating to the present case.  He has further urged that it is the total fault lies with the complainant and he met the opposite parties 1 and 2 irregularly for treatment after long gap, occasionally.  There is no negligence and deficiency in service on the part of opposite parties 1 and 2 towards the complainant.  He has stressed much during his oral arguments of opposite parties and argued that sole aim of the complainant, is simply to get wrongful gain from them and put them harassment by filing a frivolous complaint with baseless allegations against the opposite parties 1 and 2.  He has also further contended that the case-law of Hon’ble National Commission’s decisions referred in the case, are applicable to the present case for dismissal for the complaint.  Finally, he has also prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

Forum’s Findings and observations

     

       Heard, the learned counsel for the both parties and perused the record very carefully. Parties led their evidence by way of affidavits.  At the time of hearing of this Consumer Case, both the learned counsel who are appearing for the parties took us through relevant documents of complainant alone, for appreciating the contentions raised in the complaint.  This consumer case is lingering on since three and half years for a decision for one reason or other as the case may be.  We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. One who seeks equity must come to the Forum/Court with clean hands.

      

      To appreciate the controversy, it would be an appropriate if we narrate all the circumstances of the case both on question of fact as well as question of law in detail.  The basic facts of the case are not disputed and repetition of them are here avoided. Let us examine the scope of negligence and their (doctors) obligation to a patient and liability, if any in the facts and circumstances of the case.

 

The meaning of negligence :-

 

          ‘Negligence’ means that neglecting one’s duty of care owing to another person.  The mere negligence is not enough to accuse a medical man but gross-negligence-gross negligentia is needed.  But, the concept has undergone sea change and there is hardly any difference between negligence and gross-negligence, it is something with the addition of vituperative epithet. Medical negligence of  a doctor is actionable under Indian Contract, 1872 (section 73 – compensation for loss of damage caused by breach of contract).

 

      In nutshell, ‘medical negligence’ is a term attributed to an act or omission of a medical practitioner when he deviates from the required standard of duty.  To prove medical negligence on the part of a doctor or medical practitioner a high degree of probability is required.  There must be a direct connection between the ailment and the treatment given to the patient by the doctor.

 

The concept of Medical negligence:-

 

      The Hon’ble Supreme Court in the leading case of Jacob Mathew Vs.State of Punjab and another, III (2009) CPJ 9(SC) – 2005 CrlJ, 3710) has interpreted the term ‘negligence’.  The Hon’ble Supreme Court observed that a professional may be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 

 

The role of hospital and doctor:

 

    Burden lies on the hospital and the concerned doctor, who treated the patient to prove that there was no negligence involved in the treatment.  In both contingencies i.e., ‘contract of service’ and ‘contract for service’, courts have taken a view that the hospital is responsible for the acts of their permanent staff as well as for the staff, whose services are temporarily requisitioned for treatment of patients.  Therefore, hospital can discharge burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died.  With this judgment, the entire burden cannot be placed on the complainant to prove negligence and it is the duty of the hospital also to satisfy that there was no lack of care of diligence.  The hospitals are institutions, people expect better and efficient services, if the hospital fails to discharge its duties through its doctors being employed on job basis or employed on contract basis, it is the hospital that has to justify and by not impleading a particular doctor will not absolve of its responsibility.    

 

    The core point is that whether the opposite parties 1 and 2 have committed medical negligence and is there any deficiency in service towards the complainant on the part of the opposite parties.  What is the role played by the 3^rd opposite party is not known to us. ‘Medical negligence’ is a complicated subject and the liability of doctors or doctor depends upon the facts and circumstances brought on record. ‘Negligence’ in its acceptance includes acts of omissions as well as commissions. Each case has to be judged on its own facts.  The above said leaned counsel for the complainant has categorically submitted to us that the complainant had undergone two surgeries which were done on different said dates by the opposite parties 1 and 2 but there is no improvement in his health condition and it is proved by documentary evidence.  It is evident that by perusing the contents of document (Ex.A5) and why the 2^nd opposite party has strike of signature of 3^rd opposite party in the said document and for what purpose it is not known to us, because the original document is not before us to verify it.  The documents are marked (Exs.A1 to A15) on behalf of the complainant go to show that he took the treatment from the opposite parties at relevant dates as mentioned above. The most of the consumers are unaware of whether the medicines prescribed to them are harmful or un-harmful or necessary or unnecessary.  Normally, the patient comes to private clinic/hospital with the hope that the hospital authorities would take proper care.  It is the duty of the hospital to satisfy that there was no lack of care or diligence.  People expects an efficient service from the hospital and if the hospital fails to discharge their duties through their doctors, it is the hospital which has the obligation to justify the treatment administered by the doctors who employed by it and the patient cannot be expected to know the particulars each and every doctor who treated him at the hospital.  In majority of the cases, the principle is upheld that the complainant has to discharge initial onus cast upon him and the next movement the onus shifts to the hospital or the treating doctor who have to satisfy that the Forum/Court that there was no lack of care or diligence.  Medical practitioner would be liable only where his conduct falls below that of a reasonably competent doctor.  Consumer Fora are not bound to refer each and every matter for expert opinion to a panel of doctors – 2011 (2) CPR (NC) page no.7.    The Hon’ble Supreme Court had granted compensation of one crore rupees to victim of medical negligence. (The highest ever awarded against a hospital in medical negligence case in India – Nizam’s Institute of Medical Sciences Vs. Prasant.S.Dhananka II (2009) CPJ 61(SC).

 

Doctor should take reasonable care:

   The doctor should take due care in communicating to the patient, the risks involved, the exact prognosis after the operation and should explain clearly the complications involved. In several cases we see that the inherent risks of surgery is not properly explained to the complainant.  The doctor should follow the ethics of medical parlance and treatment and avoid unnecessary operation and negative defensive medicine in order to protect themselves against the possible litigations and thereby resort to various diagnostic investigations before prescribing a treatment.  The defensive medicine used should be positive in nature which is to benefit the patient.  The medical records and the case -sheet should be clearly written in legible handwriting and handed over to the patient whenever the patient requests for it.  The doctor should avoid making correction in the case sheet and if necessary, instead of overwriting the corrections, should be made in clear handwriting.   Case-sheet is a matter of hospital record and should be maintained in a proper manner revealing the line of treatment given to the concerned.  ‘Medical Records’ are a doctor’s best friends and he should take the initiative to maintain them with integrity and consciousness.  But, the opposite parties are not filed the documents before the Forum with an ulterior motive and intention as the case may be.  It is a clear lapse on their part and they have still seeking justice from the Forum for a decision of the case.

 

        Law recognizes of the dangers which are inherent is surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care.  Approach of the court is to require that professional men should possess a certain minimum degree of competence and that  they should exercise reasonable care in discharge of their duties – A.S.Mittal Vs. State of A.P. (AIR 1989 SC1570) = (1989 (3) SCC223).

 

    Constituents of medical negligence is now well-established by a plethora of rulings of Hon’ble Supreme Court of India and Hon’ble National Commission, New Delhi. We rely upon the decisions of Hon’ble Supreme Court in V.P. Shantha’s case and Jacob Mathew’s case.

 

     Heavy burden cannot be placed on the patient or family members/relatives to implead all those treating doctors who treated the patient or nursing staff to be impleaded as parties.

 

Relevant case-law:

  In  Savitha Garg Vs. National Heart Institute reported in Supreme Court and National Commission on Medical Negligence and Insurance under Consumer Protection = IV, (2004) CPJ 40 (SC), it is held by the Hon’ble Apex Court that law regarding  non-joinder of necessary parties that Consumer Forum is Primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical grounds.          

 

      In 1969, the Hon’ble Supreme Court of India had an occasion  to deal with the issue relating to medical negligence in Dr.Lakshman Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole, AIR 1969 SC 128 = 1969(1) SCR 206, considering the mater, the court observed that a medical practitioner when consulted by a patient owes him the duties, like (a) duty of care in deciding whether to undertake the case; (b) duty of care is deciding what treatment is to be given, and ( c ) duty of care in the administration of the treatment.  The breach of any of these duties gives to the patient a right to action for negligence.  Explaining the nature of the duty care, the Supreme Court expressed that  the petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a  reasonable degree of care, neither very high nor very low; to be judged in the light of the particular  circumstances of each case.

 

   The Supreme Court in its landmark judgment in Indian Medical Association Vs.V.P.Shantha (AIR 1996 SC 550 – 1995(3) CPR 412 (SC)), the first decision on the subject under C.P.Act, discussed at length the issues of medical services and the liability of medical professionals and hospitals.

 

1.Complainant must prove his claim by reliable evidence – 2011 (3) CPR 449 (NC).

 

2.  One  who makes an allegation is required to prove it beyond doubt – 2011 (2) CPR 46 (NC).

 

3.   Consumer For a can award  compensation as deemed proper, reasonable   and not as per   asking of complainant – 2011 (2) CPR 282 (NC).

 

4.    Complaint is based on deficiency in service  must establish the same by leading cogent evidence  - 2011 (2) CPR 68 (NC).

 

5. In the case of consumer disputes redressal Forums, the judgments must set out the points in dispute and a decision on those points supported by some reasons – 1995 (I) CPR 832 (NC).

 

6.  In a medical negligence case, the doctors and the concerned hospitals have a responsibility to correctly explain their conduct and their records should prove that there was no negligence on their part – 2008 (3) CPR 265 (NC).

 

7. Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it which is reported in  2010 C.T.J. (N.C.) 1159.

 

8.  A quasi – judicial authority must record reasons in support of its conclusions  - 2011 CTJ (SC) (CP) 128.

 

Lapses on the part of the opposite parties 1 and 2:

1.  First of all, the opposite parties 1 and 2 have not filed any documents to prove their allegations against the complainant for the reasons best known to them.  It is so, ultimately, not proved.  Adverse inference against a party is usually drawn during the course of trail, if he deliberately abstains from adducing better evidence, which he is in a position to adduce. Here, the opposite parties are kept silent and may be forgotten to file the documents (case-sheets and operation notes of the complainant) for the reasons best known to them.  
2. Case-sheets of the case of the opposite parties 1 and 2 are vital in nature and they are not filed before us for our evaluation of them for a decision of the case.
3. Before doing surgery of the complainant at first instance, what diagnosis conducted on him by the opposite parties, is not available with us and it is sheer negligence of opposite parties towards the complainant to that extent.

 

The concept of “compensation”:

 

    In Ghaziabad Development Authority Vs. Balbir Singh, “(2004) CPJ 12(SC) = 2004(5) SCC 65, the Supreme Court opined that under the Law, the Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of services rendered by statutory and public authorities, holding:

“…. The word compensation is of a very wide connotation.  It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss.  The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done.  The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.  The Commission/Forum must determine that such sufferance is due to malafied or capricious or oppressive act.  It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.  Such compensation is for vindicating the strength of Law….”

 

    Consumer For a can award compensation as deemed proper, reasonable and not as per asking of complainant – 2011(2) CPR 282(NC).  With regard to deficiency in service, the relevant aspect to be remembered that – To bring  home an allegation of deficiency in service, the element of willful action  (or as the case may be, in action) needs to be established and the onus of proof of such action / inaction lies on the complainant -  2010 (2) CPR 89 (NC).

 

       Compensation or damages can be  awarded only, if complainant has suffered loss or  damages due to negligence of manufacturer or service provider  - 2011 (2) CPR 101     (NC).

The Hon’ble Supreme Court’s decisions on the topic of compensation:-

1. More specifically, the Hon’ble Supreme court of India has dealt with the subject of award of compensation by Consumer Courts in the case of Ghaziabad Development Authority Vs. Balbir Singh, 2004 CTJ 605(SC)(CP) wherein it has been asserted that “ compensation is a compense for the loss or injury.  It, therefore, necessarily has to correlate with the amount of loss or injury.
2. The Hon’ble Supreme Court in State of Gujarath Vs. Shantilal Mangaladas, AIR 1969 SC 634  discussed about award of compensation.
3.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of Charansingh Vs. Healing Touch Hospital and others III(2000) CPJ 1(SC) and also stressed the need of balancing between the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider.

 

    These decisions (b) and (c) are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.Gannavaram Technical Training centre and another which is reported in 1(2015) CPJ(AP)’ while awarding compensation to Appellant/complainant. 

 

    The complainant has to prove functional disability in order to claim compensation for medical negligence.  Here, the complainant has proved the case with documents proof.

  

  After scanning the entire material on record and after having considered a rival submissions in the light of well-settled legal principles, we are of the clear opinion that this Consumer Case is a fit case to award  Rs.5,00,000/- damages to the complainant.  Realization of justice is the ultimate function of law.  Consumer Forums should be wary of passing cryptic orders in the adjudication of complaints 2007 CTJ AP P6(SC).  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. This case demonstrates the highly unethical and unscrupulous conduct of the opposite parties 1 and 2.  The conduct of the opposite parties 1 and 2 are not only highly detestable but unpardonable also.  Such tendencies have to be curbed with heavy hands by compensating the victim adequately as a deterrent.  We are convinced with the arguments of the learned counsel for the complainant.  The opposite parties are miserably failed in their attempt to convince us. We cannot measure the mental worry of the complainant in terms of money.  He has suffered considerably since 3 ½ years till today. We find that there is a deficiency in service and gross- negligence on the part of the opposite parties 1 and 2.  The 3^rd opposite party is remained absent and not contested. He had already left the hospital of the 1^st opposite party on 25-01-2010 itself. There is an ample evidence to establish the facts and proved them that the complainant is entitled to the reliefs as mentioned in point no.3.  These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT NO.3  In the result, the complaint is allowed in part, ordering the opposite parties 1 and 2 are jointly and severally liable to pay Rs.50,000/- (Rupees fifty thousand only) to the complainant towards the amount spent by him and for undergoing two surgeries and medicines and also to pay Rs.5,00,000/- (Rupees five lakhs only) towards the compensation and damages to him and also to pay Rs.5,000/- (Rupees five thousand only) towards the costs of the complaint within one month from the date of the receipt of the order.  The complaint against the 3^rd opposite party is dismissed but without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of August,              2015.    

 

               Sd/-                                                                           Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1       PW2

30-09-2014      and 15-05-2015   24-10-2014

:       :

Sk.Maqsood, S/o.Chote Saheb, Musli, aged about     years, previously  construction Coolie R/o.Gandavaram(V), Kodavalur(M), Nellore(Dt).   Sk.Shehanaz, W/o.Maqsood, Muslim, aged about 42 years, Employee, R/o.Gandavaram(V), Kodavalur(M), Nellore(Dt).

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1	01-04-2013	:	Dr.P.Narasimha Reddy, S/o.Rami Reddy, aged 63 years, Medical Superintendent, Narayana Medical College Hospital, Chinthareddypalem, Nellore, presently residing at Staff Quarters, Narayana Medical College Campus, Chinthareddypalem, Nellore- 524 003.
RW2	01-04-2013	:	Dr.B.L.S.Kumar, S/o.B.Krishnaiah, aged about 35 years, R/o.Nellore.

                                                                               

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	14-12-2009	:	Photostat copy of A.S.P.Discharge Summary issued by Narayana General Hospital, Nellore.
Ex.A2	12-01-2009	:	Cash or Credit Receipts (Medical) two in numbers issued by Narayana General Hospital, Nellore.
Ex.A3     Ex.A4	16-01-2010     01-12-2009	:     :	Drug receipt (OP Pharmacy) issued by Narayana Medicals, Narayana General Hospital, Nellore.   Prescription issued by Narayana General Hospital, Nellore.
Ex.A5     Ex.A6       Ex.A7   Ex.A8             Ex.A9     Ex.A10     Ex.A11       Ex.A12     Ex.A13     Ex.A14   Ex.A15	03-03-2010     27-02-2010       -   24-04-2010 23-04-2010 22-04-2010 21-04-2010 19-04-2010 17-04-2010   19-05-2010     07-04-2010     24-01-2012       03-04-2012     -     -   11-02-2015	:     :       :   :             :     :     :       :     :     :   :	Photostat copy of A.S.P.Discharge Summary issued by Narayana General Hospital, Nellore.   X-Ray/Special Procedure Report issued by department of Radiodiagnosis, Narayana Medical College Hospital, Nellore.   Prescription.   Cash/Credit Receipts issued by Narayana General Hospital, Nellore six in numbers.           Photostat copy of ultra sound imaging of upper limb peripheral nerves report.   Original OUT PATIENT CARD issued by Narayana Super Specialty Hospital, Nellore.   Photostat copy of the Medical certificate in respect of an orthopaedic Ally Handicapped candidate issued by Dist. Medical Board, Nellore.   Legal notice got issued by the advocate for the complainant to the opposite parties 1 and 2.   Regd. Postal receipts two in numbers two in nos.4065 and 4066.   Acknowledgements two in nos.   Certificate (To whom so ever it may concern) issued by Dr.B.V.Ramana Murthy, M.D., Asst. Professor of Medicine.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

			N I L -
			Id/-                                                   PRESIDENT (FAC)

                                                                                              

 

Copies to:

 

1. Kum.R.N.Suneetha,

Advocate,

27-2-1084, Old gowd Hostel Center,

Pucchakayala Subba Rao Street,

Balaji Nagar, Nellore- 524 002.

 

2. Sri P.Vijaya Kumara Reddy,

Advocate,

Near Millinium Electrical Sub Station,

Internal Bypass Road,

Srinivasa Agraharam,

Nellore- 524001.

 

3. Dr.R.Anjani Kumar,

          Orthopeadic Surgeon

          Narayana Hospital,

          Nellore.

          

 

Date when order copies are issued: