Date of Filing: 11.02.2015

                                                                                       Date of Order: 11.12.2018         

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

   HON’BLE Sri P.Vijender, B.Sc. L.L.B.  PRESIDENT

HON’BLE Smt. D.Nirmala, B.Com., LLB., MEMBER

   Tuesday, the 11^th day of December, 2018

C.C.No.91/2015

Between

Nangunoori Ravi Kumar,

S/o. Sankaraiah,   

Aged about 31 years,

Occ: Private School Teacher,

R/o. H.No.6-2-155, Subhash Nagar,

Nizamabad District, Telangana State.                                    ……COMPLAINANT

And   

1. Asian Institute of Gastroenterology

Rep. by its Chairman Dr. D.Nageshwar Reddy,

# 6-3-661, Somajiguda,

Hyderabad – 500082.

2. Dr. D.Nageshwar Reddy,

Chief Gastroenterology

Asian Institute of Gastroenterology

# 6-3-661, Somajiguda,

Hyderabad – 500082.

3. Dr. Mohan Ram Chandhani,

Consultant Gastroenterologist

Asian Institute of Gastroenterology

# 6-3-661, Somajiguda,

Hyderabad – 500082.

4. Dr. Jaya Agarwal, Consultant cum Pediatrician,

Asian Institute of Gastroenterology

# 6-3-661, Somajiguda,

Hyderabad – 500082.                                         …..OPPOSITE PARTIES

Counsel for the complainant        :  M/s. A. Rama Krishna & B.M.S. Narayana

Counsel for the Opposite Parties:  M/s. Subramanya Reddy & C.V.S.S. Sarma

O R D E R

(By Hon’ble Sri P.Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has been filed under Section 12 of C.P. Act of 1986 alleging medical negligence and deficiency of service on the part of the Opposite Parties which resulted in spending of huge amount and sufferings both physical and mental and asking for reimbursement of amount spent and for compensation.  

1.         Complainant’s case in brief is that: his daughter Ashritha was born on 27.12.2012 latter in the month of June - July 2014 the baby experienced difficulty for intake of food hence she was taken to local hospital at Nizamabad and on advice of doctors there, the baby was taken to the Opposite Party No.1 Hospital  on 08.08.2014.  The Opposite Party No.2 is the Administrative Head and Chairman of the Opposite Party No.1 hospital.  After collecting consultation fee the baby was referred to Opposite Party No.4 doctor on the same day 10.30 a.m., Opposite Party No.4 on examination of the baby directed for Barium Swallow test and after seeing the test report informed that, there is a short segment stricture in Upper thoracic esophagus and decided to operate and recommended for dilatation so as to enable the baby to have intake of liquids and Solids. The complainant agreed for the said surgery.  On 09.08.2014 a surgery of dilatation was conducted in Opposite Party No.1 hospital by Opposite Party No.3.  After that the baby was taken to Opposite Party No. 4 doctor who advised some medicine and discharged the baby on the same day.

2.         The consultant Radiologist Dr. Piyal Nag conducted Barium Swallow contest and in his report he mentioned that proximal esophagus upper i.e., food pipe dilates and that distal thoracic Esophagus lower normal, no perforation i.e., no leaks.  After surgery on 09.08.2014 no Barium Swallow test was conducted and without proper observation the baby was discharged.  The Opposite parties ought to have conducted Barium Swallow to find out the position of Esophagus after dilation procedures and they simply asked to bring the baby after one month though by then the baby was continuously crying.

3.         After the complainant went to Nizamabad with baby on the same day.  But, in the midnight onwards baby developed sudden onset of breathing associated with vomiting and high grade fever. Immediately on the morning of 10.08.2014 the complainant approached local doctor there and on his advise immediately rushed to Hyderabad and took the baby to Rainbow Hospital in the night hours of 10.08.2014 with ventilator by an Ambulance as the condition of infant was serious. 

4.         At Rainbow Hospital the infant was Admitted and operated and there was Esophagus perforation (hole) with a major leak from perforation site.  At Rainbow Hospital they have planned for resection stricture and perforation site and end to end anastomosis of the Esophagus done thereafter, baby was alright. 

5.         At Opposite Party No.1 hospital if they have done barium wheel X-ray, the baby would not have suffered so badly.  There was no perforation at the time of treatment in Opposite Party No.1 hospital.  The perforation noticed in the Esophagus was confirmed by Rainbow Hospital.  Hence, a doubt arises whether this perforation of esophagus was because of dilatation.  There was no urgency to discharge, the baby on the same day of surgery and proper investigation ought to have been made by the Opposite parties before discharging the infant.   The stricture in esophagus or during dilation possibility of perforation in the esophagus or a possibility of some forcible dilation might have caused or led to perforation of esophagus.  The Opposite Party No.2 being the Administrative Head and Chairman of Opposite Party No.1 hospital did not bother about the nature of treatment given to the infant and he did not observe the condition of the infant even at the time of discharge.              

6.         The complainant and his wife as the parents of infant have suffered mentally, physically and financially on account of negligence and dereliction of duty in providing treatment to their daughter and they were made spend huge amounts.  The complainant by profession is a private Teacher not with in sound financial position hence he borrowed money from others.  He had spent a sum of Rs.10,000/- at Opposite Party No.1 hospital in addition to transport and attendants charges he spent Rs.6,18,698/- for treatment at Rainbow Hospital apart from transportation charges.  He had purchased blood from Sunshine Hospital by spending sum of Rs.1300/- at the time of surgery.  He also obtained blood donated by one Mr. Venkat an uncle of the infant thus in all his spent a sum of Rs.6,34,998/-.   In addition to that, for stay of himself and his wife for 45 days he spent Rs.50,000/- and during the said period he has lost personal income.  He spent an amount of Rs.50,000/- towards transport charges during the treatment period.  The Opposite Parties failed to render proper service and neglected white treating the infant and it amount to deficiency of service on their part.  Hence, they are liable to pay a Rs.6,34,998/- towards expenditure incurred for treatment and interest there on 18% p.a., and they are also liable to pay Rs.50,000/- for the mental agony suffered by complainant and his wife and sum of Rs.1,00,000/- for pain suffered by infant.  The Opposite Parties are also liable to pay a compensation of Rs.6,00,000/- for causing deficiency in service and the costs of this complaint.   

6.         The common written version is filed for the Opposite Parties repudiating the allegations and contentions of the complaint.  The stand of the Opposite Parties is the claim of the complainant that, at the time of birth his daughter was hale and healthy is absolutely false.  The complainant for the first time approached the Opposite Party No.1 hospital with his baby on 08.08.2014 with a complaint of dysphagia to solids and semi solids (inability for intake of solids or semi solids).  The complainant did not disclose or deliberately suppressed the past medical history of his daughter at Opposite Party No.1 hospital.  The discharge summary dated 17.09.2014 from Rainbow Hospital filed by the complainant itself shows the child was a case of Trachea-esophageal fistula operated during neonatal period (soon after by birth) and she was evaluated outside and found to have short segment stricture in the upper thoracic esophagus for which she underwent esophageal dilatation twice (once before approaching the Opposite Party No.1 hospital on 08.08.2014).  After admission in Opposite Party No.1 Hospital the child underwent esophagus dilation on 09.08.2014 the complainant failed to appraise the past-medical history of his daughter at the time of consultation on 08.08.2014 or thereafter during the course of treatment at Opposite Party No.1 Hospital. 

7.         At Opposite Party No.1 Hospital the Opposite parties provisionally diagnosed baby as the case of esophageal stricture and advised Barium Swallow to document the size and location of the stricture in the esophagus which will help in making the road map for stricture dilatation. The accepted risk of perforation during dilatation is to the tune of 1.5% and same was informed to the complainant and obtained his consent.  The Opposite Parties have performed wire guided ante grade endoscopic dilatation using graduated Savary Gillard dilatators, which is expectant dilatation protocol.  The procedure went on smoothly without intra-procedural adverse events and at the end of procedure direct view of dilated area was done through the endoscope and he looked normal with no visible signs of perforation.  The child was kept in observation for six (6) hours after dilatation in the recovery area and since there were no signs of respiratory distress, fever, excessive cry and no complaints the infant was discharged with an advice to come after one month for review.

8.         It appears the complainant is under the impression that the Opposite Parties were negligent in not conducting Barium Swallow once again after dilation procedure.  The said test will be conducted to detect strictures, ulcers etc., in the esophagus and elsewhere in the G.I. Track and is not recommended during the post dilation period.  The perforation could not have been due to dilation as suspected by the complainant and the child was perfectly normal during observation period and did not exhibit any symptoms of perforation hence she was discharged.  If, the complainant disclosed the past medical history of his daughter she could have been subjected to diagnostic tests for perforation during the pre and post dilatation period and could have been discharged after keeping in hospital for the requisite period, which varies from case to case.  Such diagnostic procedures are essential in the case where infant underwent a surgery during Neo-natal period as a result of which esophagus is likely to be friable at the operation site which may lead to perforation.  In the present case perforation if true, may have been due to friability and may not have been due to the procedure of dilatation.                   

9.         The complainant himself has to be blamed for attendant complications, suffering of the child and unnecessary additional expenditure etc., which could have been avoided if he disclosed of past medical history of his daughter.  Hence, it is not open to the complainant to allege negligence or dereliction of duty by the Opposite Parties as such they are liable for any of the claims made by the complainant.  The complainant is guilty of suppression of the past medical history of his daughter at the time of consulting the Opposite Parties on 08.08.2014.  The complaint is Speculative in nature devoid of merits and not maintainable either in law or on facts.  The complaint is also bad for non-joinder of Rainbow Hospital as a party to the proceedings.  Hence for all these reasons the complaint is liable to be dismissed with exemplary costs to the Opposite Parties.

10.       In enquiry stage the complainant has got filed evidence affidavit of himself and that off Dr.Harish Jairam of Rainbow Hospital.  To support evidence affidavit’s he has got exhibited six (6) documents.  For Opposite Parties the evidence affidavit of Dr. Mohan who is the Opposite Party No.4 being a consultant Pediatrician of Opposite Party No.1 Hospital has been filed.  No document is exhibited for Opposite Parties 1 to 3. 

11.       After the disclosure of the evidence the complainant as well as Opposite Parties filed written arguments and supplemented the same with oral submissions.

12.  On a consideration of material placed on the record the following points have emerged for consideration: 

1. Whether the complaint is bad for non joinder of Rainbow Hospital as a necessary Party ?
2. Whether there was a medical negligence on the part of the Opposite Parties while rendering treatment to the infant of the complaint?
3. Whether the complainant is entitled for the amounts claimed in the complaint?   
4. To what relief ?

13.  Point No.1: The first and foremost objection taken by the Opposite Parties is that the complainant’s daughter stated to have taken post-operative treatment at Rainbow Hospital and basing on the diagnosis and treatment provided there the complainant appears to have come to the conclusion that the treatment provided at Opposite Parties Hospital was not in accordance with the standard protocol and without required observations subsequent to the surgery the baby was discharged.  Hence, to explain where there was negligence on the part of the Opposite Parties the presence of Rainbow Hospital where the infant was treated subsequently is proper and necessary party.  This complaint is preferred under section 12 of Consumer Protection Act with the main allegation of medical negligence amounting to deficiency of service and in consequences of it to recover the amounts spent for treatment of the infant and a compensation for sufferance.  Hence, the paramount consideration in this complaint is where there was relation on the part of the Opposite Parties while treating the infant with them.  As such, there is no need of a rowing enquiry as to what type of treatment was provided at Rainbow Hospital.  Hence, presence of Rainbow Hospital as a party to the complaint is not necessary.  Accordingly, the point is answered against the Opposite Parties.
14. Point No.2: The admitted facts are the complainant took his infant to Opposite Party No.1 Hospital for the first time on 08.08.2014 with a complaint of inability to take solids or semisolids.  On examination of the infant it was evaluated and found short segment stricture in the upper thoracic esophagus and for that esophageal dilatation was done at Opposite Party No.1 Hospital on 09.08.2014. The procedure at Opposite Party No.1 Hospital Opposite Party No.3 has performed wire guided ante grade endoscopic dilatation using graduated Savary Gillard dilators, which is the expectant dilatation protocol.  The said procedure went on smoothly without any intra-procedural adverse events and there was no visible signs of perforation.  After dilatation the infant was observed for six (6) hours in the recovery area and since there were no signs of respiratory distress, fever, excessive cry and no complaints the child was discharged with an advice to come after one month for review.   It is pertinent to bear in mind that the discharge of the infant was on the very same day of conducting endoscopic dilatation.  After discharge of his daughter the complainant went back to his place Nizamabad on the very same day.  But, on the same day midnight infant appears to have developed sudden onset of breathing and experienced difficulty in breathing associated with vomiting of blood and high grade fever.  Immediately next day morning on the advice of local doctors at Nizamabad, he rushed to the Rainbow Hospital with ventilator in an Ambulance as the condition of infant was very serious.  On admission of infant Rainbow Hospital they have noticed esophagus perforation with a major leak from perforation site and thereafter started treatment and baby recovered normality.  The complainant’s allegation is though there was no urgency at Opposite Party No.1 Hospital infant was discharged without observation even for one day.   They ought to have thoroughly investigated before the discharge of the infant.  Complainants suspects that during the dilatation at Opposite Party No.1 Hospital the possibility of perforation in the esophagus might have occurred.     He further stated that, there was a possibility of some forcible dilatation which might have led to perforation of esophagus.  These facts are not in dispute because the medical evidence of PW 2 also gives credence to this allegation of this complaint.  The evidence of the Rw1 Dr.Mohan who is the 4^th Opposite party also shows that the infant was kept in observation for six hours only.  In the cross examination has categorically stated that the fact of the observation infant after dilatation for a period of six hours is not mentioned in any of the reports of Opposite Party No.1 Hospital.  It is further stated by him in the cross examination that perforation may not be noticed early after dilatation upto 40 hours and in the instant case admittedly the infant was not kept in observation for 40 hours.  At the same time he did not mention as to what made the Opposite Parties to discharge the infant without keeping an observation for 40 hours. He further stated that in the cross examination that, in the report from Opposite Party No.1 hospital there is no mention that they gave liquids to the infant after dilatation and during the so called observation period of 6 hours before discharge.  It is also evidence of Rw1 that, even after taking all precautions complications can occur and as per Ex. A6 discharge summary from Rainbow Hospital there is a suspicion of esophageal perforation at the dilatation site.  Admittedly this Rw1 conducted endoscopic surgery and after surgery he referred the patient to Pediatrician and thereafter did not see the baby at all.  Pw2 Dr.Harish Jairam of Rainbow Hospital evidence is material important and it shows prior to his treatment the baby was treated by the doctors at Opposite Party No.1 Hospital the site of injury in the food pipe had narrowed which required dilatation hence, the baby was taken to  Opposite Party No.1 Hospital where she underwent endoscopic dilatation on 09.08.2014 post procedure the baby developed progressive inability to swallow associated with vomiting of blood and respiratory distress hence, she was brought to Rainbow Hospital in a very serious condition on ventilator support to Rainbow  Hospital on 10.08.2014.  At Rainbow Hospital it was diagnosed that baby wound pipe had a major leak at the site of narrowing and underwent cooperative surgery earlier.  So, it is crystal clear that a minimum of 40 hours observation was required after the endoscopic surgery but the doctors at Opposite Party No.1 Hospital said to have observed just for six hours and discharged. and infact.   Infact none of the reports of Opposite Party No.1 Hospital discloses even observation of six hours post-surgery.    
15. One of the major defense taken by the opposite parties is that the complainant is guilty of suppressing the past medical history of the child at the time of consulting the doctors at Opposite Party No.1 Hospital on 08.08.2014.  Because even as per the discharge summary under Ex.A6 from Rainbow Hospital dated 17.09.2014 the child was a case of Tracheo – esophageal fistula and was operated soon after the birth but, the complainant has not appraised of the past medical history of the child at the time of consultation or thereafter during the course of treatment at Opposite Party No.1 Hospital.  It is further pleaded by the Opposite Parties that had the complainant disclosed the past medical history of child have undergone Tracheo – esophageal fistula operation in the neonatal period the child would have been subjected to diagnostic tests for perforation during the pre and post dilatation period and would have been discharged after observation for the requisite period such diagnostic procedures are very much essential in the case of the child as she underwent surgery during neonatal period as a result of which the esophagus is likely to be friable at the operation site which may lead to perforation and in the instant case the perforation if true might have been due to friability and may not been due to the procedure of dilatation.    But, the evidence of the Pw2 Dr. Harish Jairam shows the child was born with a birth defect of absence Food pipe (Esophageal Atresia) for which she underwent esophagus surgery after the birth and because of the surgery the food pipe had narrowed which required dilatation.  So there is no dispute that soon after the birth the child had a surgery but, the defence of the Opposite Parties is that the said medical history was not disclosed by the complainant and had he disclosed it the child would have been kept for observation for longer period.  But, the evidence of the other Dr.Mohan in the cross examination is that after the Barium Swallow the esophageal stricture was diagnosed and the consultant pediatrician ie., Opposite Party No.4 referred the patient for a dilatation based on children’s prior surgical history and symptoms of difficulty in swallowing.  So, even if the complainant did not disclose the previous medical history of the child the Opposite Party No.4 as a consultant pediatrician referred the child for dilatation basing on prior surgical history and symptoms of difficulty in swallowing.  It is crystal clear that pediatrician the Opposite Party No.4 has noticed the earlier surgical treatment of baby before referring her for dilatation, so, the child ought to have been kept under observation for a minimum 40 hours but for the reasons best known to him.  Opposite Party said to have kept the baby for observation for six hours only.   If the post-surgery complications had occurred after a lapse of a seek forty hours it would have been a different aspect.  In the instant case on the very same night of endoscopic surgery baby developed complications and without observing the child post operatively and examining they have discharged. It is a clear case of medical negligence on the part of Opposite Party 1 to 4.
16. The learned counsel for the Opposite Parties submitted the citations in the following cases in support of his arguments that medical negligence can be alleged  in the present case:

Point No.3:   The proposition of law laid down in the cited authorities is settled one but in the instant case the facts themselves are speaking the negligence on the part of the Opposite Parties.  Hence, the case law as above has no application to the present complaint.  For the above said reasons the point is answered in favour of the complainant.           

17. Point No.4: In the result, the complaint is partly allowed directing the Opposite Parties to refund an amount of Rs.10,000/- collected towards treatment of the child at Opposite Party No.1 Hospital and reimbursement of an amount of Rs.6,18,698/- spent by the complainant for the treatment of the child at Rainbow Hospital with interest thereon 12% p.a., from the date of the complaint till the date of payment. 

            The Opposite Parties are also liable to pay a sum of Rs.50,000/- as compensation for causing sufferings to the child post-operatively and mental agony to the complainant.

The Opposite Parties are liable to pay a sum of Rs.10,000/- as costs of the complaint.  Time for compliance one month from the date of service of this order.       

Typed by Typist, corrected and pronounced by us on this the 11^th day of December, 2018.

MEMBER                                                                                           PRESIDENT

APPENDIX OF EVIDENCE

 PW1                                                                                                      DW1

N. Ravi Kumar.                                                                                   Dr. Mohan O.P.No.1

                                                                                              Dr. Harish Jairam-O.P.No.2

Exs. filed on behalf of the Complainant:

Ex.A1 is copy of outpatient Record (bunch of 10 pages)

Ex.A2 is Photographs of baby Ashritha.

Ex.A3 is copy of Medical Bills (bunch of 23 pages),

                        dt.10.08.2014 to 16.09.2014.

Ex.A4 is Medical bills, dt.16.08.2014.

Ex.A5 is copy of inpatient bill (summary) (bunch of 12 pages) of Rainbow Hospital, dt.17.09.2014.

Ex.A6 is Discharge Summary of Rainbow Hospital (bunch of 4 pages), dt.17.09.2014.

Exs filed on behalf of the Opposite parties

Nil.

MEMBER                                                                                           PRESIDENT