SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/s 12 of Consumer Protection Act 1986 claiming compensation of Rs.4,80,000/- to the complainant for mental agony, physical strain and suffering caused due to medical negligence and deficiency in service on the part of opposite parties together with cost Rs.10000/- for the proceedings of this case.

The brief facts of the case are that the complainant NO.1 fell accidentally into pond and due to breathlessness and nasal bleeding she was immediately brought and admitted in Pariyaram Medical College hospital, Pariyaram, Kannur on 04/06/2016 for treatment.  That on clinical diagnosis  and investigations the doctors found the injuries of the complainant No.1 as follows:- Fracture left 2^nd rib, Bilateral pneumonities/Lung contusion, Haematoma Left breast and scalp, Haematoma, Right parietal area.  That the complainant had prehistory of type II Diabetic mellitus and Systematic hypertension.  That out of the medication and the conservative management of the Doctors it can be gisted that they have observed only one fracture of left 2^nd rib, left breast hematoma, scalp hematoma of Right parietal region for which antibiotics, continuous oxygen inhalation, hydrocortisone, blood transfusion and other supportive medicines like antihypertensive, glycemic control with chest review done.  Further submitted that Dr. Arun on 05/06/2016 over complainant No.2’s phone call informed the ocmplainatnNo.2 that his wife is improving in health.  But OP No.2 informed that highly critical and her condition is just like how is crushed kernel of coconut.  This really shocked and mentally agonies the complainant No.2 who is aged 78 years and a person who undergone brain hemorrhage treatment and informed complainant to do whatever he likes.

That on 07/06/2016 son of the complainants Dr. Gopikrishnan who is MD Homeo system of Medicine enquired.  The OP Dr.Kunhambu humiliated him says that he don’t want to talk with Quacks.  In spite of this insult again Dr.Gopikrishnan asked the Dr. Kunhambu, if the condition of his mother is so serious, take repeated X-ray or try to evacuate the water fluid of the lungs and whatever emergency treatments are required.  Then Dr. Kunhambu starred at him also and answered that he can take his mother anywhere in a harsh language.  Complainant alleged that the character and conduct of the OP No.2 is a clear indication of deficiency of service, inadequacy in the quality, nature, or manner of performance that is required to be maintained by him in relation to the medical service rendered towards the patient/complainant No.1.  Then immediately on 07/06/2016 complainant No.1 is shifted to the Aster Mims Hospital, Calicut and treatment begun at 08/06/2016 and with proper treatment there saved her life and after recovery, discharged on 05/06/2016.  The treatment records of the Aster Mims hospital would go to show that X-ray reveals Fracture lateral aspect of 2^nd 3^rd and 4^th ribs and anterior aspect of 3^rd, 4^th, 5^th and 6^th ribs on left side.   She was admitted in ICU and pulmonology consultation was done due to bilateral haemothorax lung contusion, status post left ICD and advices followed.  Endocrinology consultation was taken for diabetic control.  ICD was removed on 14/06/2016 and patient recovered symptomatically at the time of discharge.  The complainant spent huge amount at Aster Mims Hospital for the recovery of the complainant No.1.  It is alleged that the OPs have failed to take reasonable care and skill to detect and treat the complainant No.1.  The OPs not made any attempt to discover injuries accompanying the lung contusion of the complainant No.1.  They have not provided preventive measure from causing additional injury and not provided supportive care while waiting to for the contusion to heal.  The OPs have not provided pulse oxymetry when the complainant, No.1’s condition progressively worsens.  According to complainant if the complainant No.2 would not have taken the complainant No.1 to the Aster MIMS hospital, the survival of the complainant No.1 is doubtful timely shifting of the complainant No.1 to the aster Mims Hospital saved her life.  OPs are negligent and failed to exercise due care.  The OPs owes a duty of care to the complainant No.1 but in this case has breached this duty of care.  The complainants have suffered injury due to this breach.  Complainant stated that Dr. Kunhambu violated code of medical Ethics.  He has not rendered service to humanity.  He has not rendered his medical knowledge and skills towards the cure of the complainant No.1.  When request is made by the son of the complainant, he refused to discuss and disclose the same with him, on the other hand insulted.  The doctor is deficient in his moral character towards his patient and bystander complainant No.2.  He failed his duty as Physician to his patient.  Patience and delicacy characterize the doctor.  Due to the deficiency in service of OPs complainant filed this complaint for getting compensation.

After receiving notices OPs 1 and 2 filed separate versions.  It is seen that the treatment details mentioned in both versions are more or less same.  It is stated by OPs 1 and 2 that OPs denies the allegations in the complaint.  OP 1 admitted that the complainant No.1 was brought at the casualty Department of Pariyaram Medical college Hospital at 10.15 am on 04/06/2016 with history of fall.  At the casualty, the complainant No.1 was examined by the duty doctors and it was revealed that she had 1)Tempero Parietal Hematoma(Blood clot on the side of Head) 2) Contusion of neck, 3) contusion of chest wall and 4) contusion and hemorrhage of left breast.  Immediately after admitting at the casualty, the patient was subjected to different investigations including routine blood sugar and urine tests, blood pressure, ECG, X-ray and CT scan of head, chest and neck.  After observing the nature of injuries and in the light of the investigation reports an emergency Neuro Surgical consultation was offered at casualty itself as it was found that there was no grave brain injury requiring surgery.  This was followed by consultation with a General Surgeon.  Since the patient was to remain stationery with continuous monitoring and support of the functions of heart and lungs, the patient was admitted at Surgical Intensive Care Unit on the same day at 2.45 P M where her condition was continuously observed using pulse oxi-meter, ECG pulse rate respiratory rate blood pressure monitoring etc.   The level of Hemoglobin in Blood and PVC were also being regularly monitored and recorded in charts.  On the advice from physician the blood sugar level was being controlled by administering solvent insulin.  In view of the internal injuries and latest generation penicillin group of antibiotics know Piperacelline and clintamycine were being administered to prevent and contain infection in the contused lungs.  Since the patient was complaining of pain she was administered with Dramodol  Hydrochloric injection after evaluation.  To reduce inflammation of contused lungs no steroid anti-inflammatory drugs were given.  Steam inhalation and nebulization also were given.  The clinical examination and investigation suggested multiple fracture of ribs.  Taking note of the nature of internal injuries involving fracture of ribs, internal bleeding and contusion in lungs and breast, the movement of the patient was to be restricted. Meanwhile to make up the loss of blood the patient was administered two bottles of blood.  The doctors could readily suspect multiple fracture of ribs on account of high velocity fall injury sustained by the patient on fall from 20 feet height also likely to cause complex injuries of internal organs like lungs, heart and liver.  The examinations revealed that there was minimal injuries to liver and heart.  As the injury due to fracture of ribs would lead to considerable pain, decreased oxygen saturation and internal bleeding, edema and clotting within the plural cavity, all such complications were to be addressed to through medication and rest with restricted movements.  Further the internal injuries including bleeding, edema and blood clot in plural cavity were likely to lead to serious respiratory complications in course of time.  Accordingly, the patient was advised to undergo cardio-thorax consultation. On 07/06/2016, in the light of the condition on the previous days, the doctor could assess that her condition was still grave but comparatively stable showing gradual improvement and there was no need for concern of any fatal developments.  It is submitted that in view of extensive multi organ injury including parietal Hematoma, contusion neck, contusions involving breast, lungs and chest wall and the rib fractured the doctors explained the 2^nd complainant that in view of the extensive internal injuries the condition of the 1^st complainant was still serious, thought stable and was being steadily brought under control.  The doctors further explained to the 2^nd complainant that as a result of high velocity fall to depth of 20 feet the cage of ribs of patient might have suffers with multiple fractures also damaging the lungs and the immediate concern was to improve the condition of lungs after containing any infection and relieving of blood clot and edema.  The 2^nd complainant was convinced and informed properly of the condition of his wife that it was serious but stable, being brought under control and showing improvement.  The allegations in the complaint attributing indiscretion and rudeness against the OP NO.2 in his conduct and communication towards the 2^nd complainant and her son are absolutely false and baseless.  It is submitted that he complaint No.1 was got discharged on 07/06/2016 solely on account of the intervention of the complainant’s son on absolutely misplaced premise, apparently on account of an inflated ego.  The entire allegations raised by the complainants against the OP No.2 are absolutely incorrect and baseless.  There was no deficiency of service, inadequacy in the quality, nature or manner of performance on the part of the OP No.2 in treating the complainant No.1.  It is submitted that there was no negligence or defective service on the part of the OPs in treating the complainant No.1 and allied acts.  The complainants have not sustained any loss or damage because of any thatches on the part of the OPs.  Hence prayed for the dismissal of complaint.

            In addition to the contentions as stated above, OP No.2 further contended that

OP No.2 submitted the OP2 having passed MBBS & MS(General surgery) and M.chm Plastic surgery after serving in government health service, joined Pariyaram medical college in 1996 under surgery department as unit chief and since last more than 18 years has been serving as Head of the department of surgery.  This OP has got an experience of 29 years of service as doctor under government service and under Pariyaram medical college Hospital, having had occasion to attend to innumerable cases of diseases and accidents involving grave injuries and having accomplished effective results by saving the lives and curing of large number of patients.  There has been no medical negligence nor deficiency in service as alleged in the complaint.  There is nothing to show that the patient was not improving under the treatment administrated by this OP and doctors under his team.  As events would reveal the patient’s condition was not deteriorating, but was improving.  It is further submitted that there had never been any rashness in words or conduct on the part of this OP as alleged in the complaint.  OP2 has submitted that 1^st complainant Smt. Sumangala was brought at the casualty department at Pariyaram Medical college at about 10.15 AM on 04/06/2016 with history of a fall to 20ft depth into a pond at about 5 am of the day.  After observing the nature of injuries and in the light of investigation reports an emergency Neuro surgical consultation was offered at the casualty itself.  The treatment as explained in OP’s version are done.  Further the doctors could readily suspect multiple fracture of ribs on account of high velocity fall injury sustained by the patient on fall from 20 feet height also likely to cause complex injuries of internal organs like lungs, heart and liver.  In view of extensive multi organ injury including parietal Hematoma, contusion neck, contusions involving breast, lungs and chest wall and the rib fractures from the investigation reports and clinical examinations we explained the 2^nd complainant later on the day at about 5.30PM that in view of the extensive internal injuries the condition of the 1^st complainant was still serious, though stable and was being steadily brought under control.  As a responsible doctor OP2 further sought to explain to the 2^nd complainant that as a result of high velocity fall to a depth of 20 feet the cage of ribs of patient might have suffered with multiple fractures also damaging the lungs and the immediate concern was to improve the condition of lungs after containing any infection and relieving of blood clot and oedema.  It is submitted that at no point of time this OP had rebuffed, insulted or ignored the 2^nd complainant.

            Both parties led their evidence.  On the side of complainants, complainant No.2 was examined as Pw1 and marked Ext.A1 to A16 @ Exts. A14 to A16 @ were marked with objection Dr. Sajan P, Senior Consultant General surgery - Department of general surgery Aster Mims, Calicut was examined as Pw2 from the side of complainant.   Pw1 and Pw2 were subjected to cross-examination for the OPs.  On the side of OP, 2^nd OP has filed his chief affidavit and was examined as Dw1.  Marked Ext.B1 to B3.  Further                          Dr. V K Sasikumar, professor of surgery in DM Moopans Medical college, Wayanad, MBBS, MCH, MS in general surgery, has been summoned as an expert witness from the side of OP, and has been examined as Dw2.  Two case records of the complainant, one  from Pariyarm Medical college (OP1 hospital) and another from Aster MIMs Hospital, Calicut from where, complainant No.2 had availed subsequent treatments have been summoned and marked as Ext.X1 and X2 respectively.  After that the learned counsels of both parties made oral argument and also filed their written argument note.  Complainant’s learned counsel submitted medical literature also for reference.

            Complainant’s allegation is that even though multiple fractures occurred to complainant No.1 the OPs could detect only one fracture of left 2^nd rib.  Further that on 07/06/2016 inspite of Dr.Gopikrishnan’s (son of complainant NO.1, a homeopathy doctor) requested to take one more X-ray to rule out the presence of fluid of the lung of his mother since she did not show signs of healing but the OP No.2 insulted him, said quake doctor and did not heed to his request.  That the attending doctors gave information to the complainant NO.2 that patient is under progressive improvement, but inspite of several requests made with OPs to meet OP No.2, he is not available for discussion, and finally on the compulsion of complainant NO.2, Jr.Dr. Arun made arrangement to meet the OP NO.2 who called the complainant NO.2 on 06/06/2016 at9PM inside.  IC room Dr. Kunhambu told the complainant NO.2 that his wife’s condition is critical, which shocked the complainant NO.2 and then the complainant requested what should be done in future, the OP No.2 expressed his rude answers resulted in faint of complainant No.2 and lost trust upon the OP No.2’s treatment.  The rude attitude and behavior of OP No.2 and the critical downfall of the health of the complainant No.1. 

The complainant has stated that though OP No.2 had treated the patient (Complainant No.1) from 04/06/2016 to 07/06/2016 the condition was serious and the 1^st complainant was not responding to the treatment, medicine of the OPs.  Hence she was taken to Aster MIMs Hospital.  In Aster MIMS Hospital PW2 Dr. Sajan P took emergent radiography conducted removal or drainage of pleural fluid/pooled blood from the chest cavit (ICD Surgery) and continued the antibiotic, anti-inflammatory drugs.   According to complainant by giving such emergent treatment, the life of 1^st complainant was saved.  Complainant has alleged that if the OPs done the same way of treatment at OP hospital as done at Aster Mims, the 1^st complainant would have cured in the OP’s hospital itself.

            On the other hand OP 2 contended that though complainant was admitted in OP hospital on 04/06/2016 at 10.15 AM, he had attended the patient only on 06/06/2016 evening.  It is stated that on 04/06/2016, OP No.2 was in charge of admission. The patient was admitted by consultant doctor Dr.Arun and referred to the unit of OP No.2. On 05/06/2016, Sunday being a day of leave for OP No.2, Dr. Dr.Arun took the rounds on 06/06/2016 being Monday, being their surgery day, he was engaged in operation theatre for the whole day time and again Dr.Arun took the morning round.  By 5 PM OP No.2 took round of all wards including surgery ICU, had done clinical examination of the 1^st complainant.  It is contended that OP had no direct role in the treatment.  It is submitted that he saw the patient only in the evening of 6^th and on the 7^th, the patient was discharged at the request of complainant No.2 and his son.  So the treat mas predominantly done by Dr.Arun and Dr. Anoop Pradeesh.  X-ray and C T Scan are also taken by other professionals in the hospital.  Further contended that form the Medical records Ext.X1 and Ext.X2 it is clear that there was no medical negligence from the side of OP No.2.  Further contended that the from the evidence of expert witnesses Pw2 and Dw2, that the treatment protocol followed is correct.

            The undisputed facts in this case are 1^st complainant (age 75) fell into pond and was admitted in OP No.1 hospital on 04/06/2016 at 14.28 in S3 unit ICU with complaint of breathlessness, nasal bleeding and (T) (L) Breast.  Complainant had history of high blood pressure and diabetes mellitus.  OP No.2 is the unit chief in S3 unit.  Further on 07/06/2016, complainant No.2 (H/o complainant No.1) when enquired about the condition of the patient to OP No.2, informed that the condition was critical and just liked how is crushed Kernel of coconut.  Further the undisputed fact is her son Dr. Gopikrishnan asked the OP No.2 to take repeated X-ray of the patient, then OP No.2 answered he can take the patient to anywhere.  Further on the same day the patient was discharged from OPNo.1 hospital and shifted to the Aster MIMS Hospital Calicut and admitted there on 08/06/2016 and discharged on 15/06/2016.  Discharge summary of OP No.1 hospital shows on 04/06/2016 the diagnosis found.  Fracture left 2^nd RIB, Bilateral pneumonitis/Lung consfusion, Hematoma left breast and scalp, Hematoma ® Parietal area.  Complaint of pain (L)side of chest and breathlessness.  Chest consultation, ENT, Ortho ad Neuro surgery, consultation done.  Managed with IV antibiotics, continuous O2, blood transfusion (for falling Hb, Pcu) and other supportive medication.  Glycemic control attained with insulin.  Antihypertensives restarted after physician consultation.  Chest review done.

            The doctors prescribed medicines.   The case records of the Aster MIMS Hospital (Ext.X2) shows that final diagnosis as left lung contusion, left hemothorax, left breast haematoma, left breast haematoma,  left partial haematoma, fracture 2^nd and 6^th  left ribs.  Further on examination conscious, oriented, No pallor icterus, Hydration good, P/A soft minimal distention+, no tenderness. Chest Left breast hematoma, cropturs on left upper chest antiriorly, tenders+, air entry grossly decreased on left side. Scalp: right temporal haematoma.  Investigation: spiral CT Scan of Thorax (plain) – emergency: Bilateral haemothorax noted (left > right) with passive atele ctasis of bilateral lower limbs.  Fracture:- 2^nd, 3^rd, 4^th ribs, 5^th and 6^th ribs on left side.

Course in the Hospital : No evidence of pneumathorax, soft tissue density lesion in left breast measures 46x27mm. Possibly Hematoma DD-Mss. She was admitted in ICU and pulmonogy consultation was done due to bilateral hemothorax left>right, lung constusion, Status post left ICD and advices followed.  Endocrinology consultation was taken for diabetic control. ICD was removed on 14/06/2016 and the patient is symptomatically well at a time of discharge.

            Case of the complainants, in brief, is that even though multiple fractures occurred to complainant No.1, the OPs could note only one fracture of left 2^nd rib.  The rude attitude and behavior of OP No.2 and the critical down fall of the health of complainant No.1 constrained to take decision by complainants to shift the patient  to Mims Hospital, Calicut for better treatment to save her life from endanger.  Further if the OPs done the same way of treatment done at Aster Mims Hospital, ie took radiography and surgery of ICD, then 1^st complainant would have cured in the OPs hospital itself.  Complainant state that due to sheer negligence and deficiency of service, complainants No.1 had to be taken to Mims Hospital, Calicut to save her life.  Complainants alleged that OP NO.2 did not treat complainant NO.1 in a manner a doctor should have treated and they have disputes regarding the general behavior of OP NO.2.

            On the other hand, the case OPs are that, though complainant was admitted in the unit of OP NO.2 on 04/06/2016, till 06/06/2016 evening, OP2 had no direct role in the treatment of complainant No.1 on 07/06/2016 the patient was discharge.  Further the X-ray and CT Scan are taken by some other professionals in the hospital.  The treatment was predominantly done by Dr. Arun and Dr. Anoop Pradeesh, against whom the complainant has no grievance.  Further stated that the expert doctors examined on the side of complainant as Pw2 as well as and from the side of OP as Dw2-> deposed that the treatment protocol followed is correct.  OPs further contended Dw2 deposed that there was no necessarily for a fresh X-ray, no need for ICD since plural effusion was minimal, even at OP1 hospital.  Further the ICD done at Aster Mims initially is noted as100ml would you say that? ICD was not needed at that state because of minimal plural effusion.  Further OP2 has seen the patent only on 06/06/2016 evening, can any negligence be attribute to him? No. The OPs defense appears to be that in OP hospital, and doctors treated the patient by following medical protocol and there is no medical negligence on the part of OPs.

            Here, the question to be decided is whether there is negligence on the part of OP No.2?

            It is an undisputed fact that OP No.2 is the chief medical officer in SICU in S3.  It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act.  In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.  There may be one or more perfectly proper standards and if he informs with one of these proper standards, then he is not negligent.  Further a doctor when consulted by patient owes him certain duties, namely@ a duty of care in deciding whether to undertake the care, b) a duty of care in deciding what treatment to give and © a duty of care in the administration of that treatment.  A breach of any of these duties gives a cause of action for negligence to the patient.

            Here OP NO.2 in his version contended that he is having qualification of MBBS, MS (general Surgery ) and M.chm plastic surgery after serving in Govt. Health Service, joined Pariyarma Medical College Hospital in 1996 under surgery department as unit chief and since last more that 18 years has been serving as Head of the department surgery and 29 years of service as doctor under government service, having had occasion to attend to innumerable cases of diseases and accidents involving grave injuries and having accomplished effective result by saving the lives and curing of large number of patients.  OP2 has produced Exts.B1 to B3 documents to establish his qualifications.  The above said facts and document clearly reveals that OP No.2 possessed requisite skill on that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.  This is all what the person approaching the professional can expect.  In such cases a professional may be held liable for negligence on either he was not possessed of the requisite skill which he professessed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he did posses.

            In the instance case, OP2 adopted a contention that regarding management of the patient, on 04/06/2016 the date of admission of the patient was his OP day.  Causality admission comes under S3 unit.  The 1^st complainant was admitted by consultant doctor    Dr. Arun.  On 05/06/2016, Sunday being a day of leave for me, Dr. Arun took the rounds 06/06/2016 being Monday and being surgery day, OP2 was engaged in operation theatre for the whole day time and again it was Dr. Arun who took the morning round.  After he finished the days operations, by 5 PM he look round of all wards including surgery ICU, accompanies by Dr. Aroop.  We did not even have our lunch at that time.  Accordingly OP2 had clinical examination of complainant.  It is argued by the learned counsel of OP2 that so OP2 cannot be held liable for negligence.

            With regard to this point the learned counsel of complainant submitted a citation of Hon’ble National Consumer commission in Mohan Dai Oswal cancer Treatment Vs. Prashanth Sareen and others.  It has been hold that about ‘Duty of care’ to be followed by medical professional viewed from any angle it cannot be construed that duty of care of treating doctor head of the department, who is in this case has written the ‘protocol’.  The considered view of Hon’ble State Commission that the doctor is vicariously liable for the acts of his team which assists him in every sphere in rendering treatment to the patient.

            This citation in applicable in this case because, OP No.2 is the unit chief and doctors in his unit initially treated till 06/06/2016 evening, hence OP 2 has vicarious liability.

            Another submission made by OP No.2 that both expert witness stated that treatment protocol followed is correct and there is no negligent in the course of treatment adopted by OP1 and not failed to exercise due care.

            The complainant’s learned counsel submitted a citation in V Krishna Rao Vs. Nikhil super specialty hospital in which Hon’ble Supreme court held that in most of the cases the question whether a medical Practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.

            In this case on analyzing the evidence of expert witness, especially Dw2, we can see that  in most of the questions, the Doctor deposed in favour of the OPs, which reveal that it is a biased evidence.  Even then Dw2 expert doctor’s evidence in page (6).  In accidental injury (trauma) the first preference should be given to diagnostic investigations to confirm the line of treatment? Yes (Ans.) Can under suspected diagnostic Investec investigations, treatment continued ? (Ans.) treatment can be initiated.  Further to remove the suspicious condition, further investigation is required or not?(A)Yes – ICD surgery, why it is done, when it is to be done? Surgery ICD is done to release or cure the symptoms of the patient, when the patient has difficulty in breathing or moderate to severe haemothrac or neumothorac, it should be done.  Further in a trauma care, how volume of liquid, blood or pus is measured exactly under lung pleural accumulation, what is the investigation procedure? (A) If necessary, we can aspirate by putting needle or by ICD in the pleuran space. Whether radiography is required?(A) Yes.  Further in page 7).  I suggest that the meaning of air entry grossly decreased means the patient’s condition is critical?(A) yes.

            In the instant case, OP NO.2 stated in version that in para 4 the internal injuries including bleeding edema and blood collection in plural cavity were likely to lead to serious respiratory complication in course of time on my examination on 07/06/2016, in the light of the condition on the previous days, I could assess that her condition was still grave but comparatively stable showing gradual improvement and there was no need for concern of any fatal developments.  Further page 49 of case record Ext.X1 shows that the patient was referred to the chest physician, it is stated that kindly see this patient, c/of fall into water with rib , Lt breast and scalp hematoma, bilateral pnenmednitis. K/C/O H TN and T2DM. CT thorax taken, Kindly see this patient and advise regarding ?”ARDS” further management”. Which shows that the patient was referred to chest physician to rule out ARDS. ARDS means Acute reparatory distress syndrome is a life threatening condition where the lungs cannot provide the body’s vital organs with enough oxygen, Its usually a complication of a serious existing health condition.

            In this contest the deposition of Dw2 as an expert to give more importance in      (page 6)  ie in a trauma case how volume of liquid, blood or pus is measured exactly under lung pleural accumulation, what is the investigative procedure?  If necessary we can aspirate by putting needle or by ICD in the pleural space.  Whether radiology is required? Yes.  Further the meaning of air entry grossly decreased means the patient’s condition is critical? Yes.

            So from the facts as stated in the case record Ext.X1 clearly shows that on 07/06/2016 the patient condition was critical.  But it is seen that OP NO.2 had taken the condition as stable showing gradual improvement and there was no need for concern of any fatal developments.

            In this situation, we have to look in to the evidence given by Pw2 the expert Doctor Dr.Sajan P Consultant surgeon at Aster Mims Hospital, Calicut from where complainant NO.2 availed higher treatment.  In page 1, Pw2 deposed that the patient came to Aster Mims Hospital on 07/06/2016 at 8.57 PM and done the basic investigation and assessment.  Admitted on 08/06/2016 at 12.47PM.  In page(2) “I have conducted ICD inter costal drainage on 08/06/2016 left side.  What emergency health condition of patient necessitated to you to conduct ICD? Left hemothorax (In Ext.X1 it is stated that on 07/06/2016.  Lt breast and scalp hematoma, bilateral-pueumonitis).  The learned counsel of complainant put a definite question to Pw2 in page 2- Have you not done ICD, how it would have affected the patient’s recovery?  May endanger the life of the patient.

            This evidence is corroborated with the evidence of Dw2.  Air entry grossly decreased means the patient condition is critical.  Further Dw2 has stated the bilateral hemothorax means collection of blood in pleural space, when it happens both sides, it can say bilateral (stated in X1 page 49).

Pw2 further deposed that i page 4.  The learned counsel of OPs put a question that this patient originally treated at OP No.1’s hospital and after voluntary discharge and treated at our hospital Mims, can it be stated that only because this patient was treated at your hospital she was saved? (A) NO.  Same treatment could have continued at OP No.1 hospital.

            There is no dispute with regard to the said fact.  But OP2 has stated that on 07/06/2016, the condition of the patient was still grave but comparatively stable showing gradual improvement and there was no need for concern of any fatal development.  Further sated that clinical examination of the patient and evaluating the different relevant investigation reports found that the condition of the patient was still more improving.  I could satisfy on examination that the functions of left lungs had considerably improved with better respiration and oxygen in take, indicating that the adverse effects of injury to the plural cavity were being contained.  According OP No.2 so it was not necessary to obtain a fresh X-ray at the at time.

            The fact as stated above by OP No.2 is against the clinical condition of the patient on 07/06/2016 as  stated in Ext. X1 page 49.

            From the deposition of Pw2 and the clinical condition of the patient when came to Aster Mims hospital also reveals that condition was critical.  So we are unable to accept the submission of OP No.2  about the condition of the patient on 07/06/2016 as stated above. 

In this case in spite of request from the side of complaints, OP No.2 had not done the second X-ray to rule out the requirements of ICD resulted in failure to treat Bilatereal haemothorax effectively.  Dw2 in page 4 deposed that (Q) if a bystander demand that the doctor take a second X-ray immediately the doctor refuses to do so? (A) If it is necessary only repeat X-ray or any other investigation required. Unwanted investigation is injurious to the body of the patient.  Here condition of the patient as stated in case record P.49 reveals that it was necessary.   OP No.2 doctor should also make his own analysis including tests and investigations where necessary. 

In such a situation the burden is only the hospital/doctor than that of the complainant.

A consumer complaint is in the nature of civil proceedings.   In civil proceedings, a mere preponderance of probability is sufficient.

The learned counsel of OPs submitted a decision Kusum Sharma and others Vs Batra Hospital and medical Research centre and others.

In the said case the patient developed post operative complications and damage was caused to body of pancreas during the surgery.

The Hon’ble State Commission in many cases held that a medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.  The definition of negligence as given in law of torts:

Negligence becomes actionable on account of injury resulting from the act or omission amount to negligence attributable to the person sued.  The essential component of negligence or three: duty breach and resulting damage.

            From the facts and circumstances of this case, we are of the considered opinion that there is deficiency in service on the part of OPs.

            In the result complaint is allowed in part. Opposite parties are directed to pay Rs.1,05,000/- as treatment expense at Aster-Mims Hospital and Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant No.2 and also Rs.10,000/- towards cost of the proceedings of this case.  Opposite parties are jointly and severally liable to pay the awarded amount within one month from the date of receipt of this order.  Failing which Rs.2,05,000/- carries interest @9% per annum from the date of order till realization.  Complainant is at liberty to file execution application for the realization of the order.

Exts

A1-Discharge Summary of Pariyaram Medical College hospital dated 04/06/2016 to 07/06/2016

A2- Final cash bill of Pariyaram medical college hospital

A3-Discharge Summary of Aster Mims hospital dated 15/06/2016

A4-The treatment records at Aster Mims hospital

A5-CT Scan report dated 07/06/2016

A6-Advance receipt dated 08/06/2016

A7-Inpatient statement dated 09/06/2016

A8-Advance receipt dated 09/06/2016

A9-Inpatient statement dated 10/06/2016

A10-Advance receipt dated 10/06/2016

A11-Inpatient statement dated 11/06/2016

A12- Bill dated 12/06/2016

A13-Advance receipt dated 10/06/2016

A14-Reply letter sent by public information officer Govt. Medical college dated 09/0/2021

A15-Letter given by Medical superintendent,  Kerala state co-operative hospital Kannur dated 18/12/2016

A16-News paper dated 14/06/2019(marked with objection by OP2)

B1- M S Degree certificate of OP No.2

B2- Faculty of Medicine Degree

B3- Certificate issued by Govt. Medical College Kannur to  OP No.2

X1-Case records of the complainant from Pariyaram Medical college (OP1)

X2-Case records of the complainant from Aster Mims Hospital, Calicut

Pw1- Complainant No.2

Pw2-Dr.Sajan P- witness of complainant

Dw1-OP2

Dw2-Dr. V K Sasikumar-Witness of OP

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar