BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 07/07/2011

Date of Order : 13/02/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 360/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

On 14-07-2009, the complainant approached the Koothattukulam Co-operative Hospital for his treatment for chest pain due to gas trouble. At their instance on 15-07-2009, the complainant consulted the 2^nd opposite party a Cardiologist. Without conducting any test the 2^nd opposite party admitted the complainant at the ICU of the 1^st opposite party hospital and treated for 7 days and continued the treatment for a month. Thereafter on 10-08-2008, the complainant approached the cardiology Department in the Medical College Hospital, Kottayam. They conducted the necessary tests like ECG, Echo, TMT at Blood test and found that the previous treatments were unnecessary. The complainant had to suffer lot of inconveniences including financial loss due to the treatment at the opposite parties. Thus, the complainant is before us seeking direction against the opposite parties to pay Rs. 4,19,318/- towards compensation to the complainant under various heads. This complaint hence.

2. The version of the opposite parties is as follows :-

The complainant was admitted on 15-07-2009, since Dr. James Mani, Civil Surgeon who suspected ischemic heart disease and referred the patient. The same day, he consulted the physician in Rajeev Gandhi Co-operative Hospital, Koothattukulam. The said physician as well suspected ischemic heart disease. Both the doctors have prescribed cardiac medication. The patient was a chronic smoker with history of two episodes of epigastric discomfort. On admission, ECG was taken which showed no significant changes, but the follow up two ECGs had clearly shows high possibility of coronary heart disease – unstable angina. Since the patient was presented with the clinical history with significant ECG changes, stress ECG (treadmill test) was not advisable during the 1^st admission. As per the standard practice, TMT is to be done in the follow up treatment period. Considering the associated acid peptic disease (ulcer), tablet aspirin was continued and started on antacid. The treatment given to the complainant by the 2^nd opposite party is the standard treatment. The opposite parties had charged only Rs. 5,313/- towards treatment charges including the room rent. The compensation of Rs. 4,19,318/- claimed is without any basis whatsoever. He complaint is liable to be dismissed.

3. The complainant was examined as PW1 and Exts. A1 to A6 were marked. The 2^nd opposite party was examined as DW1 and witness for the opposite parties was examined as DW2. Ext. B1 was marked on the side of the opposite parties. Heard the complainant who appeared in person and the counsel for the opposite parties.

4. The only point that comes up for consideration is whether the complainant is entitled to get a total compensation of Rs. 4,19,318/- from the opposite parties?

5. Admittedly on 15-07-2009, the complainant approached the Chief Medical Officer at Rajiv Gandhi Co-operative Hospital, Koothattukulam. The C.M.O. referred the complainant to a cardiologist by issuing a reference letter (Page No. 2 in Ext. B1), since he had suspected heart ailment. Instead of approaching a cardiologist the complainant met Dr. James Mani a civil surgeon his family doctor. Dr. James Mani as well directed the complainant to approach a cardiologist. Accordingly on 15-07-2009 itself, the complainant approached the 2^nd opposite party a cardiologist who is working under the 1^st opposite party. In the 1^st opposite party hospital, the complainant had undergone inpatient treatment from 15-07-2009 to 21-07-2009. The disease of the complainant was diagnosed as CAD (Coronary Artery disease), NSTML (Unstable angina/Non-ST Segment Elevation Myocardial Infarction) evident from Ext. B1 case sheet.

6. According to the complainant, he had not been suffering from heart ailment and the 2^nd opposite party mistakenly treated the complainant for heart ailment without conducting. Eco Test and TMT. The complainant maintains that he was suffering from gastric ulcer only and so he is entitled to get compensation for the wrong treatment adopted by the opposite parties and the subsequent eventualities.

7. Per contra, the opposite parties vehemently contended that the doctor at Rajiv Gandhi Co-operative Hospital, Koothattukulam and Dr. James Mani, Civil Surgeon had suspected heart ailment on the complainant and thus he was referred to the opposite parties for expert management. It is stated that the 2^nd opposite party had conducted ECG tests and blood tests to ascertain the nature of the ailment and the ailment was diagnosed as coronary artery disease, unstable angina. According to the opposite parties, the doctors who subsequently treated the complainant at Medical College Hospital also diagnosed the ailment of the complainant as coronary artery disease. The opposite parties contended that they had rendered standard line of treatment to the complainant for the ailments diagnosed by them.

8. The 2^nd opposite party who was examined as DW1 deposed that repeated ECG tests and blood tests were conducted on the complainant and there was high possibility for coronary heart disease. DW2 is a cardiologist who is working in Lissie Hospital, Ernakulam. DW1 relied on the ECG tests results and blood test results to establish that there was no negligence on his part. By relying on the test results, DW2 also approved the same. But it is to be noted that apart from the test results the ECG tests report and blood tests report did not find a place in Ext. B1 case sheet. The non-production of the same fail to substantiate the contention of the opposite parties which seemingly have to be taken on grounds taken for granted. However, low does not grand such a favour. In Short, though the doctor suspected heart ailment no conclusive proof is on record to substantiate the same in this Forum. DW2 deposed before the Forum that the blood test conducted to ascertain whether there was any damage on the heart was found negative. Ext. A4 Echo test and TMT test go to show that the complainant is free from any heart ailment, though the doctors at the Medical College suspected heart ailment on the complainant.

9. DW1 and DW2 unanimously stated that the treatment adopted by DW1 is on the basis of standard protocol for short ailment. The opinion of DWs 1 and 2 may be true, but in the instant case though symptoms of heart ailment was present on the complainant. DW1 failed to ascertain the exact point of the ailment on the complainant and continued the treatment under the strong impression and belief that the complainant suffers of heart ailment. DW1 should have considered the other symptoms of gastric ulcer in which he failed. So in the given circumstances, there was negligence and laches on the part of the opposite parties in treating the complainant.

10. The Hon'ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital 2010 (5) SCC 513 reads as follows :-

“In a case where negligence is evident the principle of res-ipso-loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.”

11. The Apex Court in Savita Garg (Smt.) Vs. Director, National Heart Institute 2004 CTJ 2009 (SC) (CP) held as follows :-

“ Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of such negligence the patient died, then in the case the burden lies on the hospital and the doctor concerned who treated that the patient to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defense to substantiate their allegations that there was no negligence. It is the hospital which engages the treating doctor, thereafter it is their responsibility. The burden is greater on the institution hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.”

12. In Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 (SC) the Apex court has held in para 48 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 standard to be applied for judging, whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession.”

13. Relying on the reliable dicta of the higher wisdom of the upper judiciary, we are unable to sustain the cause of the complainant since it runs contra.

14. The complainant claims a sum of Rs. 4,19,318/- from the opposite parties towards compensation which seems to be an amount inclusive of his actual hospital expenses. The remaining amount has not been explained for. What is not substantiated is not necessarily called for in law to be allowed. However, the complainant has had to go though unnecessary inconveniences due to the deficiency in service on the part of the opposite parties which calls for compensation. We are of the firm view that an amount of Rs. 20,000/- towards compensation would adequately meet the ends of justice keeping in mind the references above. In addition to the above, the complainant is entitled to get refund of the hospital expenses.

15. In the result, we partly allow the complaint and direct as follows :-

1. The 1^st opposite party shall refund the hospital expenses as per Ext. A2 series in 12 numbers (Rs. 4,435.22) to the complainant.

2. The opposite parties shall jointly and severally pay Rs. 20,000/- to the complainant towards compensation for the reasons stated above.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 13^th day of February 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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