D.O.F. 19.10.2007

                                          D.O.O. 27.08.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 27^th day of August, 2011.

C.C.No.178/2007

Majesh T.

S/o. Kunhambu,                                                  :         Complainant  

Korankode House,

Edayannur, Kannur District 

(Rep. by Adv. C. Krishnan)

1.  Administrator,                                      

     Pariyaram Medical College Hospital,

     Pariyaram, Kannur District.

2.  Secretary,

     Pariyaram Medical College Hospital,

     Pariyaram, Kannur District.

3.  Managing Director,

     Kerala State Co-operative Hospital Complex,

     Pariyaram, Kannur District.

(Rep. by Adv. Nicholas Joseph)                                          :           Opposite Parties

4.  Chairman,

     Kerala State Co-operative Hospital Complex

     and Centre for Advanced Medical Service Ltd.

     Pariyaram.

5.  Dr. Mahesh,

     Consultant Urologist, Pariyaram Medical College,

     Pariyaram, Kannur.

(Rep. by Adv. P. Mahamood)

6.  Chairman,

     Kerala State Co-op. Hospital Complex

     and Centre for Advanced Medical Service Ltd.

     Pariyaram.

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay ` 1,00,000 as compensation and cost of this litigation.

          The case in brief is that the complainant was admitted to P.M.C on 18.04.2007.  He was advised to undergo Extra Corporal Shock Wave Lithotripsy (ESWL) for palverise the kidney stone.  The complainant was given sedation and taken for ESWL treatment.   Surprisingly after about two hours after becoming normal he was told that operation could not be conducted since the failure of ESWL machine and it is asked the Company to get it alright.  But on 19.04.07 he was informed that there is major defect so that operation can not be performed.  Then he was discharged.  The attitude of the hospital authorities was irresponsible.  They have not taken necessary precaution required to be taken before conducting a serious operation.  Sedation was given even without making assure that the ESWL machine was under working condition.  This has caused much mental pain and physical discomfort for which the opposite parties are liable to. Hence this complaint.

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

          1^st and 2^nd opposite parties filed version and 3^rd opposite party also on his appearance accepted the same for himself and treated as version of 3^rd opposite party.  1^st and 2^nd opposite parties later exonerated but the version filed by 1^st and 2^nd opposite party treated as version of opposite party No.3.  4^th and 6^th opposite parties filed version together.  Version of 5^th opposite party filed separately.

          The brief contents of the version of 3^rd opposite party are as follows:

          Complainant was admitted in PMCH on 18.04.2007 by Dr. Mahesh, Urologist.  The complainant was posted for ESWL (Extra Corporal Shock Wave Lithotripsy) on the same day.  This method uses external shock waves which are directed by a computer to pulverize the kidney stone.  Two cases were posted on that day.  The first case of      Mr. Shyju was completed successfully.  The next case was that of complainant but unexpectedly the machine stopped working.  The Biomedical Department personnel were brought immediately and they inspected the machine.  Since the service of Service Engineers are required to repair the machine the complainant was discharged and referred to Urologist.  It is not correct to say that nothing was done to the complainant after giving sedation.  ESWL method are started initially but the procedure could not be completed due to the failure of the machine.  ESWL treatment is not harmful to the human life.  It is a safe procedure.  It is incorrect to say that the hospital has not taken proper care to ensure the working of the machine.  The machine has an annual maintenance contract for any unforeseen defaults.  One patient had already undergone treatment by the machine successfully on the same day prior to the case of complainant.  While the sedation was given and preliminary tubing inserted the machine was still working condition.  It was during the treatment that the machine unexpectedly failed.  There was no willful or advertant error or omission.  There was no defective service on the part of hospital authorities.  Hence to dismiss the complaint.

          4^th and 6^th opposite party filed version jointly in the forms of counter statement :  In contract they have stated nothing different from what is stated 3^rd opposite party.  The brief facts of their version are as follows :  The complainant was posted for ESWL on the same day of admission.  Two cases were posted on 18.04.2007.  Complainants case was second one and during treatment the machine stopped working.  Since the machine could not be repaired by Biomedical Department complainant was discharged and referred to a local Urologist.

          5^th opposite party filed version separately but repeated all those facts what had already been stated by 3^rd, 4^th and 6^th opposite parties.  It continued to state that the complainant was taken up for the ESWL procedure after successfully completing the first case posted on the same date.  He was started intravenous drip and given sedation.  Cystoscopy and stending of the ureter was successfully done under local anesthesia.  When the patient was about to be shifted from the endoscopy table to the ESWL machine, the machine had suddenly developed a technical problem and has stopped working.  Since the machine could not be rectified the patient was shifted to the post operative ward for observation and later to his room after recovery from sedation.  Next day after confirmation that the rectification of machinery will take time he was discharged and referred to AKG Hospital in accordance with their option with a letter to Urologist mentioning the details of treatment given at Pariyaram Medical College.  The patient was not given general anesthesia at any point of time in order to make him unconscious as alleged.   He was given only sedation to avoid discomfort during cystoscopy and stenting and also to reduce movement during the ESWL procedure.  The effect of the sedation lasts 1 to 2 hours, when the patient feels sleepy but does not lose consciousness.  The allegation that the opposite party did not take the necessary precaution including checking the working conditions of the machine prior to sedation is false and ill motivated.  The complainant was posted as the second case.  The first case was also an ESWL case done on Mr.Shynju aged 25 years.  The procedure of first case successfully conducted a few minutes before the case of the complainant.  The complainant and his relatives were communicated the problem with all seriousness on the first and second day and they fully understood the situation and did not create any problem while they were at Hospital.   The patient was discharged and referred to AKG Hospital only after discussing with the relatives and with their consent.  The patient was given proper medical case during the hospital stay and he was not subjected any physical or mental harassment as alleged.  The failure of ESWL machine was an unexpected problem, which could not have been predicted or prevented.  The machine was used on another patient a few minutes back without any problem.  This complaint is made as an afterthought with ulterior motive.  Hence prayed to dismiss the complaint.

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

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

2.         Whether the complainant is entitled to any relief?

3.         Relief and cost.

The evidence consists of PW1, DW1, DW2, Ext.A1, A2 (7 in number) and Ext.B1 to B3.

Issue No.1 to 3:

          Admittedly the complainant admitted in Pariyaram Medical College Hospital on 18.04.2007.  He was posted for ESWL procedure on the same day as the second case.  The complainant was taken up for the ESWL procedure.  He was started inhavenous drip and given sedation.  Cystoscopy and starting of the ureter was done under anesthesia.  But during the treatment of ESWL procedure the machine stopped working and the procedure could not be completed.  The Biomedical Engineers in the hospital was not able to rectify the defect and thus the patient/complainant was discharged on the very next day and referred to AKG Hospital.

          The case of the complainant is that the hospital authorities did not take necessary precaution essentially required  to be taken before conducting an operation.  It was without making assure that the ESWL machine was in working condition to conduct the ESWL procedure, the complainant was given sedation by the doctor which caused mental pain and physical discomfort.  There was gross negligence and deficiency in service on the part of opposite parties.  On the contrary the case of the opposite parties is that the complainant/patient was given proper medical care during the hospital stay and he was not subjected to any physical or mental harassment.  The failure of ESWL machine was an unexpected problem which could not have been predicted or prevented.  The same machine made use of conducting the first operation just before few minutes of the case of complainant.  The machine has an annual maintenance contract for any unforeseen defaults.  Prior to the case of the complainant, a total of 85 cases were done using the same machine successfully and there was no complaint about malfunctioning of the machine.

          Complainant himself examined as PW1 and marked Ext.A1 and A2 on his side for proving his case.  He had adduced evidence by means of affidavit evidence that he was for admitted in Pariyaram Medical College on 18.04.2007 with Renal Calculus.  On the same day he was advised to undergo ESWL procedure for pulverize the kidney stone.  He was given sedation and taken for ESWL treatment.  Surprisingly after two hours when he woke up, the doctor told him that the treatment could not be completed due to the failure of ESWL machine.  The hospital authorities informed the incident in a very silly and joking manner next day.  Due to the postponement of surgery he had suffered pain and sufferings.  The opposite parties did not gave him proper medical care during hospital stay.  There was gross negligence, mistake and deficiency in service on the part of opposite parties.

          It is an admitted fact that the ESWL procedure could not be completed due to the failure of the machine.  Ext.A1 discharge card goes to show recorded clinical notes, that the ESWL couldn’t be done due to complaint of ESWL Machine.  Complainant has no case that it was because of the negligence of the opposite parties the complaint of ESWL Machine had been taken place.  But what the question arose to be considered is when the doctor expected to conduct the procedure whether it was made certain that the machine was in working condition capable of doing the procedure.

          The case of the party is that the failure of ESWL machine was an unexpected problem which could not have been predicted or prevented.  Opposite party adduced evidence by way of affidavit evidence that “BZyw ssjPp F¶ tcmKn¡v hnP-b-I-c-ambn ESWL sNbvXp.  XpSÀ¶p ]cmXn¡mcs\      ESWL \v hnt[-b-am-¡m³ XpS-§sh b{´¯I-cmdv ImcWw sN¿p-hm³ Ign-ªn-Ã.  DS³ Xs¶ Rm³ Biomedical Department hnZ-Kv[sc hcp¯n sajo³ ]cn-tim-[n-¸n-¨p-sh-¦n-epw AhÀ¡v b{´-¯-Icmdv ]cn-l-cn-¡m³ Ign-ªn-Ã.”   DW1 deposed in his cross examination that “Cu ]cm-Xn-¡m-cs\ ESWL\v Ib-äp-¶-Xn\p ap¼v      hospitalenep-ff ESWL sajo³ {]hÀ¯-\-k-Ö-amWv F¶v Dd¸p hcp-¯n-bnà F¶p ]d-bp-¶Xv sXäm-Wv.”  He has earlier deposed that “Shyjuhn\v ESWL sN¿p-t¼mÄ machine ]cn-tim-[n-¨n-cp-¶p.   Shyjuhnsâ ]cn-tim-[-\-¡p-tijw 15 an\näp Ign-ªmWv ]cm-Xn-¡m-cs\ ESWL sNbvX-Xv.  As per the evidence of DW1 the ESWL machine was examined 15 minutes before patient was taken to ESWL machine.  Opposite party’s pleading, goes to show that Complainant’s ESWL was second case on the day.  DW1 further deposed in cross examination that “patients\ position sNbvXp sh¡p-Ibpw button operate sN¿p-I-bp-amWv Fsâ tPmen.  Machine operating condition BsW-¦n        ESWL machine {]hÀ¯\ kÖ-am-sW¶v tUmIvS-tdmSv ]dbpw ESWL machine kÖ-am-sW¶v Rm³ ]d-ªm am{Xta _Ô-s¸« tUmIvSÀ further proceed sN¿p-I-bp-f-fq.  tUmIvS-tdmSv machine {]hÀ¯-\-k-Ö-aà F¶p ]d-ª-Xp-sIm­v tUmIvSÀ      ESWL sNbvXn-Ã.”  DW1 in his cross examination deposed that the machine was examined when the ESWL procedure was done to patient/Shyju the first case of the day before the complainant/patient complainant was taken to ESWL after 15 minutes of the test of Shyju.  However, opposite party has pleaded that the ESWL treatment is not harmful to the human life.  In fact it is a safe procedure.  It is incorrect to say the hospital has not taken proper case to insure the working of the machine.  The machine has an annual maintenance contract for any unforeseen defaults.  One patient had already undergone treatment by the machine successfully in the same day prior to the complainant.  While the sedation was given and preliminary tubings inserted the machine was still working.  The main case of the complainant is that ESWL procedure did not completed after giving sedation.  He has also deposed in cross examination that he has no complaint against 5^th opposite party.  Complainant has no case that there is any negligence in treatment on the part of doctor. He deposed in cross examination that “ESWL sajo³ A¶p  work  sNbvXn-cp-¶p-sh-¦n tUmIvSÀ atljv Cu process sN¿p-am-bn-cp-¶p.”

That means complainant has no case against 5^th opposite party/Doctor.

In short complainant’s case is as he deposed in cross examination that “procedure\v ap¼m-bn«v icn-bmb coXn-bn-emtWm machine F¶v t\m¡n-bnà F¶-Xm-Wv.”  So the question to be looked into is whether there was a proper check up of the ESWL machine before the procedure or not?  DW2 deposed that “verifying the machine is the duty of the hospital authority I was informed by the technician that it is defective. Without information from the technician I will not start cycloscopy”  DW1, the Radiographer in cross examination deposed thus machine operating condition BsW-¦n ESWL machine kÖ-am-sW¶v tUmIvS-tdmSv ]d-bpw. ESWL machine kÖ-am-sW¶v Rm³ ]d-ªm am{Xta _Ô-s¸« tUmIvSÀ further proceed sN¿p-I-bp-ffq.  tUmIvS-tdmSv ESWL {]hÀ¯-\-k-Ö-aà F¶p ]d-ªXp sIm­v ESWL sNbvXnÃ.”  In the light of the evidence adduced by the Radiologist, what is deposed by the Doctor can be believed.  Hence it can be seen that after giving sedation the doctor has done the procedure cystoscopy.  Doctor has given evidence that “he will not start cystoscopy if he has not received the information that ESWL machine is in working condition”.  So that it is clear at the time when the doctor has done cystoscopy, the ESWL machine was in working condition which means, the machine became defective thereafter.  The above facts make it clear sedation could not be avoided at any rate, since the machine was in working condition and cystoscopy has to carry on prior to the ESWL procedure.  In short, the circumstances of the case does not permit to cast deficiency in service on the part of opposite party since the incident of sudden failure of ESWL machine is as a result of quite accidental which is beyond the control of opposite parties.  No one can be blamed for this unexpected incident.  It has to be taken into account that no sensible professional would intendly commit an Act or omission which would result in harm or injury to the patient since his professional reputation would be at stake.  The Jacob Mathew’s case (2005 CTJ 1085 (sc)(sc)) Hon’ble S.C. summarized that “A professional may be held liable for negligence one of the two findings; either he was not possessed of the requisite skill which he professed to have processed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess”.  The consequence of an act which is beyond the control of opposite parties, can not, in any rate, castigate negligence or deficiency in service on the part of opposite party. Complainant has not proved that the sudden failure of ESWL machine was as a result of doing or not doing any act of opposite parties or they were in a position, one way or the other, to exert control over the alleged incident.

          In our view having regard to the facts and circumstances of the case it is not justifiable to cast negligence on the shoulders of opposite parties for the consequence of an act, which is quite accidental and beyond their control.   Hence we find that there is no negligence on the part of opposite parties.  The issues 1 to 3 are found against complainant.

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

                         Sd/-                           Sd/-                      Sd/-

     President                    Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Discharge card dated 19.04.07.

A2 series.  Medical bills (7 in numbers)

Exhibits for the opposite party

B1.  Case record of the complainant from Pariyaram.

B2.  Case record of Shyju from Pariyaram.

B3.  Certificate dated 01.12.2010.

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

DW1.  C. Pavithran 

DW2.  Dr. Mahesh K.    

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT