HYDERABAD
F.A.No.79/2005 against C.D.No.99/2004 , Dist.Forum, Rangareddy Dist. .
Between
N.Ramulu (died) ,S/o.N.Pitchaiah,
Hindu,. Aged 60 years,
Occupation, Retired employee
( as he died, his LRs were brought on record
as per the orders in I.A.No.2480/2005
dt. 27.10.2005 )
LRs:
1.Smt. N.Kousalya W/o.late Ramulu,
Hindu, aged 49 years, Occ:Housewife,
2. N.Srinivas, S/o.late N.Ramulu,
Hindu,. Aged 34 years, Occ:Tax Consultant,
3. Smt. D.Srilatha D/o.late N.Ramulu,
Hindu, aged 30 years, Occ:Housewife,
4. N.Srikanth ,S/o.late N.Ramulu,
Hindu,. Aged 28 years , Occ:Employment;
(All are residents of MIG II, 199, 9th phase,
K.P.H.B. Colony, Hyderabad. ) …. Appellants
And
1.Appollo Hospitals Enterprises Ltd.,
Bhagyanagar Colony,
Opp. KPHB Colony, Kukatpally,
Hyderabad, represented by
Registrar , Dr.Sudheer Rai.
2. Dr. Vanaja Reddy,
Husband’s name not known,
Hindu, aged about 40 years,
Occ:Physician,
Appollo Hospitals Enterprises Ltd.,
Bhagyanagar Colony,
Opp:KPHB Colony, Kukatpally ,
Hyderabad. … Respondents/
Opp.parties
Counsel for the appellants : M/s.K.Someshwara Kumar
Counsel for the respondents : M/s. V.R.N.Prashanth
CORAM :THE HON’BLE JUSTICE SRI D.APPA RAO , PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI G.BHOOPATHI REDDY , HON’BLE MEMBER.
WEDNESDAY, THE TWENTY SEVENTH DAY OF AUGUST, TWO THOUSAND EIGHT.
Oral Order : (Per Sri G.Bhoopathi Reddy, Hon’ble Member)
******
This is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act, 1986 to set aside the dismissal order passed by the District Forum, Ranga Reddy Dist. in C.D.No.99/2004 dt.24.11.2004. During the pendency of appeal, the appellant died , hence his LRs were brought on record as per the orders in I.A.No.2480/2005 dt. 27.10.2005 as appellants 1 to 4 .
The complainant filed the complaint under Section 12 of the Consumer Protection Act,1986 to direct the opp.parties to pay a sum of Rs.10 lakhs as damages for mental agony and to reimburse the cost of treatment incurred by him which is Rs.6,500/- in opp.party no.1 hospital and Rs.1,58,962.25 towards the cost incurred for treatment at Appolo hospital ,Jubilee Hills, Hyderabad and to award costs.
The case of the complainant is as follows:
The complainant was a retired Sub Inspector of Police and as he was suffering from acute vomiting, giddiness and severe head ache he was taken to the hospital of opp.party no.1 at 1. am. on 29.8.2003 and he was admitted in the hospital and necessary treatment was given by the duty doctor by name Dr.Saleem by administering saline and other drugs and he also conducted regular check up of blood pressure, sugar test etc and he opined that C.T. scan is necessary . At about 10 am. on 29.8.2003 the 2nd opp.party who is a physician examined the complainant and diagnosed that he is suffering from Hypertension and Diabetes Mellitus and she gave treatment and administered medicines basing on the diagnosis . The opp.party no.2 stated that C.T. scan is not necessary . On the advise of 2nd opp.party , the 1st opp.party discharged the complainant from the hospital on 31.8.2003. After returning home the complainant suffered severe headache and giddiness and when the son of the complainant contacted the 2nd opp.party she advised to take the complainant to Apollo Hospital , Jubilee Hills, Hyderabad and suggested to take C.T. scan.. The complainant was admitted in Apollo hospital, Jubilee Hills , Hyderabad at about 11 p.m. on 31.8.2003 and he was examined by Dr.G..Raja Shekar , Neurologist. All the investigations including C.T.Scan and MRI scan of brain were taken. The MRI scan of the complainant revealed large areas of signal abnormality hyper intense on D.W. and T2W/Flair sequences are seen almost completed involving the right cerebellar lobe and a small portion of left cerebellar lobe in keeping with acute infarcts . The scan also revealed evidence of mild ascending and early tonsillar herniation causing dilatation of lateral and third ventricles. The condition of the complainant became very serious and the doctors of Apollo hospital , Jubilee Hills., Hyderabad saved him with great difficulty. The complainant was treated as inpatient from 31.8.2003 till 22.9.2003 . Dr.Raja Shekar told the complainant that had the complainant was diagnosed properly by conducting C.T.Scan and MRI scan of the brain and put on proper treatment his condition would not have been worsened and became complicated. The 2nd opp.party being a physician knowing fully well that taking C.T. scan and MRI scan will reveal the actual cause for the complaint made by the complainant and symptoms found on clinical examination is grossly negligent in not conducting the same The complainant submits that he paid Rs. 6,500/- towards the fees for the treatment from 29.8.2003 to 31.8.2003 and he also spent a sum of Rs.1,58,962-25 ps. for the treatment at Apollo Hospital , Jubilee Hills, Hyderabad by borrowing loans with huge interest . The complainant got issued a notice to both the opp.parties on 7.4.2004 complaining deficiency in service claiming compensation of Rs.10 lakhs and also reimburse the cost of treatment he undergone at Rs.1,65,462-25 ps. The opp.party no.1 though received the notice ,did not issue any reply and the notice sent to the opp.party no.2 returned unserved as not claimed. Alleging deficiency in service on the part of the opp.parties , the complainant approached the District Forum to direct the opp.parties to pay a sum of Rs.10 lakhs as damages for the mental agony , to reimburse the cost of the treatment incurred by him at Rs.1,65,462-25 ps. and to award costs .
Notices sent to the opp.parties returned unclaimed as such service held is sufficient and they were set exparte.
Exs.A1 to A9 documents are marked on behalf of the complainant . The District Forum held that there is no material to show that the opp.party no.2 doctor is negligent and hence the opp.party no.1 hospital is not liable to pay any compensation to the complainant and dismissed the complaint with costs.
Aggrieved by the dismissal order of the District Forum, the complainant preferred this appeal contending that the District Forum has not properly appreciated the evidence on record and dismissed the complaint . The Dist. Forum erred in dismissing the complaint on the ground of non joinder of necessary parties and also that there was no negligence on the part of the opp.parties .The Dist.Forum came to a wrong conclusion that the opp.party is not negligent in the treatment for not advising the complainant to go for C.T.Scan and the Dist.Forum has come to a wrong conclusion that as per diagnosis the opp.party no.2 thought that there is no necessity for C.T.Scan of the complainant and this itself is sufficient to show that the opp.party no.2 is negligent in diagnosing the cause of ailment The Dist.Forum erred in its finding that the complainant ought to have examined Dr.Saleem who first examined the complainant forgetting the fact that the burden is on the opp.parties to show that there is no negligence . The appellants prayed to set aside the dismissal order passed by the District Forum.
The points that arise for consideration are 1.Whether Dr.Rajasekhar is proper and necessary party and for not impleading the necessary party the complaint is maintainable.? 2. Whether there was medical negligence on the part of the opp.parties ? and 3.Whether the order passed by the District Forum is sustainable. ?
Point no.1: During the pendency of the case as the appellant/complainant died, his LRs are brought on record. The appellant no.1 who is the wife of the complainant contended that her husband was admitted in Apollo hospital and the said hospital is made as party to the proceedings and Dr.Rajasekhar who has treated the complainant in Appolo hospital , Jubilee Hills Hyderabad is not a necessary party . The respondents resisted the plea that Dr.Rajashekar who has given treatment to the complainant is a proper and necessary party and finding of the District Forum may be confirmed. There is no dispute that Dr.Rajashekar treated the complainant. The appellants have relied on a decision reported in AIR 2004 SUPREME COURT 5088 SMT SAVITA GARG vs. DIRECTOR , NATIONAL HEART INSTITUTE . In the said case the complainant has filed a claim petition before the National Commission against the hospital alleging medical negligence and the National Commission dismissed the complaint on the ground of non joinder of necessary party i.e. the doctor who treated the patient. The Hon’ble Supreme Court held that the hospital is in better position to disclose that what care was taken or what medicine was administered to the patient and it is the duty of the hospital to satisfy that there was no lack of care or diligence and held that summary dismissal of the original petition by the Commission on the question of non joinder of necessary parties was not proper. The principle laid down in this case goes to show that when the hospital is made a party there is no necessity to implead the doctor who has treated the patient as party to the proceedings. In our present case also the complainant has not made doctor who treated him as party to the proceedings . This point is proved in favour of the appellants against respondents.
Point no.2 : The appellants contended that there was medical negligence on the part of the opp.parties , the District Forum has not properly appreciated the evidence on record and there is no rebuttal evidence by the opp.parties .The respondents resisted the plea that the burden lies on the appellants to prove the medical negligence . . There is no dispute that the complainant came to the opp.party no.1 hospital with a complaint of acute vomiting , giddiness and severe headache, and duty doctor admitted him in the hospital and necessary treatment was given by administering saline and other drugs and he conducted regular check up of blood pressure, sugar test etc. and the duty doctor opined that C.T. scan is necessary to know the exact cause of the ill health of complainant. On 29.8.2003 the opp.party no.2 examined the complainant and diagnosed that he is suffering with hypertension and diabetes mellitus and administered the medicines for the same and when it is brought to the notice of the said doctor about the necessity of C.T. scan she replied that it is not required. As the complainant’s condition was not improved he was admitted in Appollo Hospital , Jubilee Hills, Hyderabad at about 11 pm on 31.8.2003 and he was examined by Dr.G.Raja Shekar, Neurologist and all the investigations including C.T. scan and MRI scan of brain were taken . The MRI scan revealed large areas of signal abnormality , hyper intense on D.W. and T2W/Flair sequences are seen almost completed involving the right cerebellar lobe and small portion of left cerebellar lobe in keeping with acute infarcts. The scan also revealed evidence of mild ascending and early tonsillar herniation with effacing it and causing dilatation of lateral and third ventricles and even after discharge from the hospital on 22.9.2003 there was no improvement in his health. Exs.A3 and A4 are discharge summaries issued by the opp.party no.1 . We have gone through the said discharge summaries which disclose that after admission all the required tests were conducted and the treatment details were also mentioned. The hospital record itself goes to show that there was no medical negligence on the part of the opp.parties . The appellants have failed to file any evidence of any doctor to prove that there was medical negligence and they have also not examined any expert doctor to prove that there was medical negligence. To prove the medical negligence aspect is concerned the burden lies on the appellants. The appellants failed to discharge their burden. The appellants contended that Dr.Rajashekar of Appolo hospital told that had the patient been diagnosed properly by conducting CT scan and MRI scan of the brain and put on proper treatment his condition would not have been worsened and became complicated. This aspect is concerned the appellants have not filed evidence affidavit of Dr.Rajashekar of Apollo Hospital , Jubilee Hills,Hyderabad . The District Forum has elaborately discussed and given finding that there was no medical negligence on the part of the hospital authorities in the treatment given to the complainant . Moreover on perusal of discharge summaries issued by opposite parties it is disclosed that they have given proper treatment and all the required tests were conducted and on the basis of test report the treatment was given . The Discharge Summary of Department of Neurology of opp.party no.1 discloses that the complainant was admitted on 31.8.2003 and discharged on 22.9.2003 and Dr.G.Rajashekhar Neurologist has treated the deceased and principal diagnosis is mentioned as CVA Ischemic stroke (right Cerebellar Infarct) Diabetes Mellitus. The District Forum has elaborately discussed and given finding that there was no medical negligence on the part of the opp.parties . There are no reasonable grounds to interfere with the order passed by the District Forum. The order passed by the District Forum is a well considered order.
In the result appeal is dismissed. In the circumstances without costs.
PRESIDENT LADY MEMBER MALE MEMBER
Pm*
