Andhra Pradesh
Chittoor-II at triputi
CC/79/2012
G. Sarala,W/o. G. Krishnaiah, - Complainant(s)
Versus
Brunda Housing Pvt. Ltd.,Rep. by its Managing Director K. Subramanyam,Formerlya the 2-E, Brunda Towe - Opp.Party(s)
G.Ramaiah Pillai
24 Mar 2015
ORDER
Filing Date:20.12.2012
Order Date: 24.03.2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
TUESDAY THE TWENTY FOURTH DAY OF MARCH, TWO THOUSAND AND FIFTEEN
C.C.No.79/2012
Between
1. M.Alekhya,
minor, aged 14 years,
rep. by her guardian and father
M.Rajakumar.
2. M.Rajakumar,
S/o. Bathi Naidu,
Hindu, aged 42 years,
Both are residing at:
D.No.3/453, Karnala Street,
Srikalahasti Town,
Chittoor District. … Complainants
And
Dr.C.Ravi Sekhar Reddy,
S/o. not known to the complainant,
Represented Ravi Neuro Care Center,
D.No.10-13-561, Reddy & Reddy Colony,
Tirupati,
Chittoor District. … Opposite party.
This complaint coming on before us for final hearing on 04.03.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, Sri.K.Ajay Kumar, counsels for the complainants, and Sri.P.Ramana, counsel for the opposite party, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Sections -12 and 14 of C.P.Act 1986, by the complainants 1 and 2 against the opposite party alleging medical negligence on the part of the opposite party in treating the 1st complainant and claiming the following reliefs 1) to direct the opposite party to pay Rs.10,41,686/- towards medical expenses incurred for the treatment of 1st complainant; 2) to direct the opposite party to pay Rs.9,00,000/- for causing mental agony and financial loss besides physical damage and 3) to pay Rs.5,000/- towards legal expenses.
2. The brief averments of the case are:- That the 1st complainant M.Alekhya is the minor daughter of the 2nd complainant Sri.M.Rajakumar. The 1st complainant used to suffer from headache right from her 7th year of age i.e. from 2004. The complainants consulted Dr.P.Sudhakar, Pediatrician, a local doctor at Srikalahasti at the first instance. The 1st complainant underwent primary tests. As the headache was continued, she was advised to take CT Scan at Tirupati. Basing on the CT Scan report, she was treated with antibiotics and pain killing tablets. Still she was suffering from headache and giddiness. Dr.P.Sudhkar, advised the complainants to consult the opposite party Dr.C.Ravi Sekhar Reddy, a neuro physician at Tirupati.
3. On 26.07.2006, 1st complainant was taken to opposite party. After examining 1st complainant, opposite party prescribed some pain killers and advised to continue the same medicine for one month. No tests were conducted by the opposite party. Since no improvement in her health condition, she was again taken to opposite party on 20.11.2006 as she was developed neck pain also. The opposite party simply advised her to take same pain killers. Her case was reviewed on 28.05.2007 for her illness of vertigo, neck pain and headache. The opposite party simply prescribed some medicine and advised to continue the same for two months, by this time also no tests were conducted to know the cause of ailment for long time. Again on 09.05.2009 complainants consulted the opposite party, who prescribed some medicine without conducting any tests and advised to continue the same medicine for two years. Again on 20.05.2011, the 1st complainant was taken to opposite party hospital, as her illness was further developed affecting her vision from April 2011, besides the prolonged headache and neck pain, even this time also no tests were conducted by the opposite party.
4. Under the compelling circumstances, the 2nd complainant intended to take second opinion from a Neuro Surgeon and went to SVIMS, Tirupati on 05.08.2011. After perusing the prescription given by the opposite party, the Director of SVIMS Dr.Vengamma, advised the complainant to go for MRI scan. On verifying the MRI scan and report, Dr.Vengamma found that there is large size tumor 6 x 35 cms. in brain which had to be removed by Neuro Surgery. Therefore, the 2nd complainant took the 1st complainant to Apollo Specialty Hospital, Chennai, got admitted the 1st complainant on 08.08.2011. After investigations, surgery was conducted on 13.08.2011, for which 2nd complainant incurred medical expenses to a tune of Rs.4,77,846.20. The 1st complainant was treated as inpatient for 10 days and advised radiation and chemotherapy. The 1st complainant discharged from Apollo Hospital, Chennai on 23.08.2011. Then the 1st complainant was taken to Hyderabad and got admitted in Medwin Hospital where 2nd complainant incurred Rs.2,09,190/- and then the 1st complainant was discharged from Medwin hospital on 14.10.2011. She was advised to continue the treatment with Temoside 250 mg., 5 capsules per month for 8 months which comes to Rs.1,04,000/-. The 2nd complainant has furnished the medical statement in the complaint right from 06.08.2011 at SVIMS hospital, Tirupati, Apollo hospital, Chennai, Medwin hospital, Hyderabad and Dr.Keerthi, Neuro Surgeon at Tirupati. The opposite party did not conduct any tests though he was met number of times and negligent enough in treating the 1st complainant. Had the opposite party got tests conducted and necessary investigations made, the patient would have recovered soon from her ailment. Because of the negligence of opposite party, the 2nd complainant was forced to incur huge amount for the treatment of 1st complainant. Hence the complaint.
5. The opposite party filed his written version contending that the 1st complainant was taken treatment at Dr.Sudhakar, Srikalahasti (local doctor) and at the 1st instance, the 1st complainant was brought to opposite party only on 26.07.2006. DR.Sudhakar, Pediatrician at Srikalahasti, advised to take CT Scan and the same was brought to opposite party, as the patient was referred by a doctor, the opposite party has given treatment without collecting any fees from the complainants. When the patient was brought to him, he also advised to take CT Scan and Radiologist report. Accordingly the complainants got the CT Scan and Radiology report, which reveals normal in condition. On examination, the opposite party found that left back of head, LN + Lymph node (i.e. gland gadda), tonsils swelling, plator flexor, it means it is a sign of assessing major brain disorder, which is negative on examination and prescribed tablets only to recover from the infection and the said tablets were prescribed for 5 days but not for one month as alleged. The opposite party noted the clinical findings as lymph node enlargement in occipital region along with tansilar enlargement in mouth for which the opposite party prescribed mouth wash and anti inflammatory medicines i.e. Paracetmol, Serratio and Peptidase only, but not prescribed pain killers as mentioned in the complaint. The 2nd complainant brought the patient to the opposite party after 4 months on 20.11.2006 and stated that there is no improvement in the health of the child. There is negligence on the part of the complainant, if really, the problem is persisted, the 1st complainant ought to have come to the opposite party immediately after completion of 5 days as prescribed. On 20.11.2006, the opposite party has given medicines for 3 days and also advised to get the CT Scan. Accordingly the CT Scan and report was placed before him. The opposite party perused the CT Scan of the 1st complainant for her headache and neck pain and found the CT Scan is normal. Therefore, he prescribed some tablets, the said fact was not mentioned in the complaint. But the same was mentioned in their notice (Ex.A10) in Para.2. Again on 28.05.2007, the 1st complainant was brought to opposite party complaining that the 1st complainant is suffering from vertigo and neck pain, for which the opposite party prescribed medicines for 10 days only and not for 2 months. After a gap of 2 years, again the complainant was brought to opposite party on 09.05.2009 and on that day also the opposite party prescribed some medicines only for 15 days but not for 2 years as alleged in the complaint. Again after a long gap of 2 years, the 1st complainant approached the opposite party on 20.05.2011 complaining headache and giddiness, on that day the opposite party gave some medicines for 20 days, at that time, the complainants told that she used the previous prescriptions for 5 days in the year 2009 and she was feeling better. It shows that the medicines given by the opposite party was properly worked on the patient. Suppressing all the facts, the complaint is filed with false allegations without following the prescriptions given by the opposite party. The opposite party further contended that the patient was taken to SVIMS on 05.08.2011, the doctors at SVIMS after going through the previous prescriptions given by the opposite party, advised for MRI Scan. After verifying the scan and report, it is found that large size of tumor 6 x 35 cms. Found in brain and it has to be removed by neuro surgery. These allegations are to be proved by the complainants. The doctors at SVIMS had not found fault with the prescription given by the opposite party. The complainant met the opposite party only on the following dates, firstly on 26.07.2006, later on 20.11.2006, then on 28.05.2007, later on 09.05.2009 and lastly on 20.05.2011, which itself shows that the complainants are negligent enough in consulting the doctor, they did not follow the advise of the opposite party in taking treatment to the 1st complainant. The opposite party further contended that as seen from the prescriptions dt:05.08.2011 and 06.08.2011 under document No.3 (Ex.A3), it was found that the doctors at SVIMS also prescribed the same medicines as prescribed by the opposite party. The medical record shows that the complainants went to Apollo Specialty Hospital, Chennai, for better treatment of 1st complainant, got her admitted on 08.08.2011 and after investigations, date for surgery was given on 13.08.2011 for removal of the tumor and that the biopsy test reveals that the tumor is that of higher great astrocytoma for which the 2nd complainant incurred medical expenses to a tune of Rs.4,77,846-20 Ps. and she was treated as inpatient for 10 days and doctors at Apollo hospital advised Radiation and Chemotherapy. But it seems that the complainants have not followed the advise of Apollo hospital, Chennai. Therefore, the patient was brought back and taken to Medwin hospital, Hyderabad. She was also taken treatment at NIMS and then brought back to Tirupati and taken treatment at Dr.Keerthi, Neuro Surgeon. The medical opinion given by Dr.Krishnaiah, is not a valid one, as he is not a competent person to comment on this case, as he is neither a neuro physician, neuro surgeon, both neurology and neuro surgery or super specialty courses for 3 year duration after completing the M.D., or M.S., for 3 years. Therefore, his report cannot be considered. The medical expenses incurred by the 2nd complainant are only because of his negligence in taking treatment, he has not followed the prescription given by the opposite party. Neither the doctors at SVIMS nor the doctors at Medwin hospital, Hyderabad nor the doctors at NIMS, Hyderabad, find fault with the treatment given by the opposite party or no comments were made on his prescription. There is no negligence on the part of the opposite party at any point of time in providing treatment to the patient and prays the Forum to dismiss the complaint with costs.
6. For the complainant P.Ws 1 to 3 were examined and got marked Exs.A1 to A19. No documents were marked on behalf of opposite party. Ex.C1 is marked through P.W.2. Written arguments were filed on behalf of both parties and the counsel for both parties have submitted their oral arguments.
7. Now the points for consideration are:-
(i). Whether there is any medical negligence and deficiency in service on the
part of the opposite party?
(ii). Whether the complainant No.2 is entitled to the reliefs sought for?
(iii). To what relief?
8. Point No.(i):- to answer this point, the onus rests on the 2nd complainant (since the 1st complainant expired on 15.08.2014). The primary allegation made against the opposite party is that the complainants met the opposite party about 5 times i.e. on 26.07.2006, 20.11.2006, 28.05.2007, 09.05.2009 and lastly on 20.05.2011, the opposite party did not conduct any tests, not did any investigations and not advised to take CT Scan, MRI Scan etc. for proper diagnosis, to know the cause of headache of the 1st complainant and simply prescribed some pain killing tablets. Because of his negligence in diagnosing, the cause of illness of the 1st complainant, her ill-health was further developed and a tumor was developed in the brain of the 1st complainant. Had the opposite party suggested CT Scan or MRI Scan and sought for the report of Radiologist, it would have diagnosed the tumor at the earlier stage and the patient would have recovered and there wont be any scope for spending huge amounts towards medical expenses by the 2nd complainant. In order to substantiate this allegation, on cursory perusal of the case record and the prescriptions under Exs.A1 and A2 and the notice under Ex.A10 dt:18.04.2012 it reveals that on 26.07.2006 when the 1st complainant was brought to opposite party by the 2nd complainant, as advised by Dr.P.Sudhakar of Srikalahasti, the opposite party prescribed medicines to the 1st complainant only for 5 days. So the complainants are expected to come to the opposite party immediately after completion of 5 days course, but it is apparent on record that the complainants came to opposite party on 20.11.2006 i.e. about 4 months after 26.07.2006, as against 5 days as advised by opposite party.
9. On 20.11.2006, the opposite party prescribed some medicines only for 15 days, as such the complainants have to use the medicines for 15 days and later approach the opposite party and appraise the health condition of the 1st complainant, but the complainants came to the opposite party on 28.05.2007 i.e. 6 months after 20.11.2006 as against 15 days. Similarly, on 28.05.2007 when the complainants approached the opposite party complaining headache and neck pain of 1st complainant, for which opposite party prescribed medicines for 10 days. It seems that the complainants instead of appearing before the opposite party immediately after 10 days and appraise the health condition of the 1st complainant, they approached the opposite party later on 09.05.2009 i.e. about 2 years after 28.05.2007. P.W.1 (2nd complainant) being the father of 1st complainant, a minor child Baby Alekhya, appears to be negligent enough in taking care of health of the 1st complainant in using the medicines prescribed by the opposite party in time. On 09.05.2009 also the opposite party prescribed some medicines for 10 days only, but at this time also P.W.1 did not turn-up immediately after the prescribed 10 days but he brought the 1st complainant to the opposite party on 20.05.2011 again after lapse of 2 years. Thus, at every stage there is negligence on the part of the 2nd complainant.
10. When the doctors prescribed some medicines, advised the patient to use the medicine for a specific period as a course, the duty cost on the patient or the attendant of the patient to report the doctor immediately after completion of the course about the health condition, whether there is any improvement in health or improvement in ill-health, but in this case, right from the beginning when the complainants approached the opposite party firstly on 26.07.2006 till 20.05.2011, they did not follow the advise of the opposite party in taking medicines prescribed by the opposite party.
11. Another allegation is that the opposite party did not advise the complainants to take the 1st complainant for CT Scan or MRI Scan and reports at any point of time though the complainants approached the opposite party for about 5 times. In this regard, the opposite party contending that Dr.Sudhakar, a Pediatrician at Srikalahasti, referred the complainants to the opposite party, accordingly they met him on 26.07.2006, prior to that, the complainants have taken treatment from Dr.P.Sudhakar. According to the advise of Dr.P.Sudhakar, a CT Scan was taken on the 1st complainant, which shows normal, then after the patient was brought to him, the opposite party also advised CT Scan on two occasions, accordingly CT Scans along with report of Radiologist were produced before him, on verification of the reports and CT Scan, the opposite party found them normal (but the said CT Scans and reports were not filed in the Forum). As such he prescribed some medicines, but the complainant did not use those medicines as prescribed by him and according to his advise. P.W.2 Dr.Vengamma, Director-cum-Vice Chancellor and Professor of Neurology, SVIMS, Tirupati, deposed that “in some tumors the growth is slow and in some tumors it is very fast. In some cases the symptoms of tumor will be seen at the early stages and in some cases it may not be visible at the early stages”. That is why the symptoms of tumor of 1st complainant were not seen in the CT Scans taken on the advise of Dr.Sudhakar and opposite party. This contention of the opposite party was denied by the complainants in his complaint, in his evidence and also in written arguments. But unfortunately in Ex.A10 notice dt:18.04.2012, the complainant specifically mentioned at Para.3 that “accordingly my client visited your neuro care centre and shown the baby to you, after paying the formal consultation fee of Rs.150/- then according to your direction he was taken the baby to a CT Scan centre and got CT Scan report, wherein the doctor who has taken CT Scan offered his opinion that there was some infection in the head as per the CT Scan. After going through the said report you have given prescription prescribing some medicine to his daughter”. Those CT Scans and reports were not filed by the complainants. At Para.5 of Ex.A10 it is further stated that “my client states that once again he visited your clinic along with the baby and you made him to take CT Scan of the baby and after getting CT Scan report by him you prescribed some medicine and informed my client that there was no infection, but she is only suffering with simple headache and gave some tablets”. This contention of the complainant that the opposite party never advised or suggested CT Scan to the baby during the visits the complainants made, as such the cause of headache could not be diagnosed at the earlier stage is falsifies by virtue of the contents of Ex.A10 notice got issued by the complainants. It is not in dispute that the Baby Alekhya, minor girl about 14 years was taken to number of hospitals such as SVIMS hospital, Tirupati, where P.W.2, the Director of SVIMS, who is a Neurologist, advised the 2nd complainant to take the baby to a Neuro Surgeon, Dr.B.C.M.Prasad, HOD of Neurology, SVIMS, but the 2nd complainant did not take the baby to the said Neuro Surgeon and taken to Apollo Specialty Hospital, Chennai, and got the 1st complainant admitted there on 08.08.2011 and surgery was conducted on 13.08.2011 and a tumor was removed. In the Discharge Summary Ex.A7 under the head of history of the patient it is mentioned that evaluated with CT brain which was normal, drain removed on 3rd POD, sutures removed on 8th POD, surgical wound healed well. They noted that the possibility of glioblastoma multiform could not be ruled out. For the same, chemo radiotherapy was advised and also prescribed medicines that were mentioned in Ex.A7 to be continued but according to P.W.1 (2nd complainant) since he has no money to spend at Chennai, he got discharged his daughter and brought to Medwin hospital, Hyderabad. In Medwin hospital also, the doctors advised chemotherapy to be followed but P.W.1 got his daughter discharged, prior to it P.W.1 took the 1st complainant to NIMS, Hyderabad on 03.09.2011, where it was opined that histological features consistent with pleomorphic xantho Astrocytoma – WHO grade-II. From there he went to Medwin hospital, after getting his daughter discharged from Medwin hospital, he continued the treatment under the care of Dr.Keerthi, Tirupati.
12. During the period from 26.07.2006 to 20.05.2011 i.e. for about 5 years, complainants approached the opposite party 5 times, once with a gap of 4 months, later with a gap of 6 months, later with a gap of 2 years and another gap of 2 years. Thus it is apparent on record that the treatment prescribed by the opposite party was not properly followed and the medicines prescribed by the opposite party was not properly administered. During the period from May 2007 to May 2009 for about 2 years, whether any medicines were used or left the patient without any medicines is not known. Similarly, during the period from May 2009 to May 2011 for about 2 years, there is no record that the patient was administered with medicine for the complaints of headache, neck pain and giddiness etc. Thus the negligence on the part of the 2nd complainant gave scope for the development of tumor in the brain of the 1st complainant, inspite of its removal and treatment, she could not recovered from ill-health and finally Baby Alekhya was passed away on 15.08.2014 in Christian Medical College, Vellore, as per the Death Summary in Ex.A17 issued by the Christian Medical College, Vellore-4, Radiation Oncology Unit-I.
13. The learned counsel for the complainant relied on a decision reported in 2007 (4) ALD (Cons.) 19 (NC) – Nand Kishore Verma and others Vs. Batra Hospital and Medical centre and others. This decision of the Hon’ble National Commission is in respect of medical negligence. The facts of the case in brief are that Smt.Kiran Verma was brought to Batra hospital for the first time on 01.02.1997. After detailed examination including CT Scan, she was diagnosed to be suffering from Hodgkins Lymphoma stage III B. Taking into consideration the clinical, radiological and histopathological features of her disease she was started on chemotherapy (ABVD regimen). The chemotherapy was changed to COPP regine on 29.08.1997 and to CHOP Regime on 29.09.1997 keeping in mine the large cell lymphoma. She was treated in the hospital from time to time after conducting several tests. The patient was brought to the hospital again on 13.10.1997 with severe diabetic ketoacidosis and chest infection. She acquired chest infection and septicemia due to her long standing diabetes and she died due to severe diabetic ketoacidosis. Though the patient was put on life support measures her condition did not improved and she was declared dead on 14.10.1997. The complaint was allowed by the National Commission awarding compensation holding that the doctors were negligent in providing treatment and there is deficiency of service. The another point that was observed in the above judgment is that whether Smt.Kiran Verma, wife of the 1st complainant was suffering from Hodgkins disease or Non-Hodgkins disease and whether she was treated wrongly for Hodgkins disease despite the fact that she was suffering from Non-Hodgkins disease. Hence the negligence is held to be proved on the part of the doctors. The facts of the above case are not applicable to the facts of the case on hand.
The learned counsel for the complainant also relied on another decision reported in II (2009) CPJ 61 (SC) – Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors. This decision also in respect of medical negligence. The main points that were came to consideration are that incomplete investigation prior to operation, complainant operated for tumor, then developed acute paraplegia immediately after surgery, discharged from hospital and patient was completely paralyzed, medical negligence and deficiency in service alleged, complaint allowed by the Hon’ble State Commission and the appeal was dismissed by the Hon’ble National Commission and their Lordships of Apex Court were also pleased to dismiss appeal in C.A.No.4119/1999. The facts of the above case also not applicable to the facts of the case on hand. As the opposite party did not conduct surgery, the complainant went to SVIMS, Tirupati, for taking second opinion, from there the patient was taken to Apollo hospital, Chennai, where the surgery was conducted on 1st complainant and tumor was removed. The opposite party in this case, has prescribed some anti inflammatory medicines (according to the contention of opposite party), except that he has not given any other medicines and that treatment was also not found to be wrong by the other hospitals to which the 1st complainant was taken.
The learned counsel for the complainant also relied on another decision reported in II (2014) CPJ 368 (NC) – Madaan Surgical and Maternity Hospital & Anr. Vs. Santosh & Anr. where their Lordships have given some guidelines so far as proof of medical negligence is concern. Four legal elements must be proved in order to constitute medical negligence (a) Duty – a professional duty owed to patient; (b) Deficiency / Breach of such duty; (c) Direct causation – injury caused by breach (Causa causans); (d) Resulting Damages. No presumption or inference of negligence to be drawn merely because of unfortunate result which might have occurred despite the exercise of reasonable care. There Lordships further observed that the liability of a doctor arise not when the patient has suffered any injury, but when the injury has resulted due to conduct of doctor, which was fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the petitioner must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the petitioner would be to first show what is considered as reasonable under those circumstances and then the at the conduct of the doctor was below this degree. It must be noted that it not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice / conduct of the doctor. In the case on hand, no such breach of duty is established by the complainants against the opposite party. Hence the facts of the case are not applicable to the facts of the case on hand.
14. It is apparent on the face of record that the 1st complainant was taken his daughter for treatment to the following hospitals 1) Dr.Sudhakar at Srikalahasti 2) Ravi Neuro & Emergency Hospital, Tirupati, i.e. hospital of opposite party 3) SVIMS, Tirupati 4) Apollo Specialty Hospital, Chennai 5) NIMS hospital, Hyderabad 6) Medwin hospital, Hyderabad 7) Dr.Keerthi at Tirupati and 8) CMC at Vellore. None of the above hospitals from SVIMS to NIMS and CMC Vellore, find fault with the prescription prescribed by the opposite party or any of the doctors of those hospitals said that the opposite party was negligent in diagnosing the cause of headache and gave any wrong treatment or gave wrong diagnosis etc. Under those circumstances, it cannot be said that there is medical negligence on the part of the opposite party or there is deficiency in service on the part of the opposite party.
15. The learned counsel for the opposite party relied on a decision reported in 2013 (2) ALD (Cons.) 5 (NC) – Biswajeet Kumar Singh Vs. Dhanbad Central Hospital, Saraidhela and Others in which their Lordships held that complainant mentioned about 3 hospitals only, it is very difficult to say who is liable for so called negligence, case of complainant is vague and evasive and leads Court nowhere, certificate of doctor ‘R’ cannot be made sole basis for negligence of opposite party, more so, as it is based on statement of patient or his family members, case against opposite party regarding negligence, held, not proved, complaint dismissed. In the case on hand, the complainants have approached totally 8 hospitals, which were referred to above, even then the specific allegation of medical negligence was made against the opposite party, who treated the patient at the initial stage, after getting the CT Scan and reports from Radiologist (which were admitted by the complainants in Ex.A10). Under those circumstances, it can be said that the complainants have not followed the prescriptions given by the opposite party regularly and properly and the same was discontinued for years together, inspite of it they are throwing liability on the opposite party. The facts of the above case are applicable to the facts of the case on hand.
The learned counsel for the opposite party also relied on another decision reported in III (2010) CPJ 1 (SC) – V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. This decision also in respect of medical negligence / wrong treatment, negligence on part of respondent / opposite party No.1 in giving wrong treatment to complainant / appellant’s wife, suffering from Malaria, District Forum rightly held that patient died due to ‘cardio’ respiratory arrest and Malaria as case record show wrong treatment for Typhoid was given to complainant’s wife, that there is clear admission on the part of respondent No.1 that patient was not treated for Malaria. Since the doctor has given treatment for Typhoid instead of Malaria, because of such wrong treatment the patient died, doctor is held liable for compensation and negligence and deficiency in service on the part of the doctor was held to be proved. The above facts are not applicable to the facts of the case on hand.
The opposite party also relied on another decision reported in 2014 (2) ALD (Cons.) 9 (NC) – Babu Lal Gupta and another Vs. Navyoti Eye Centre and others in the said decision, the complainant was aged about 57 years is a businessman, in Delhi, having lucrative business of electric bulbs and tubes. He was a patient of diabetes, which was under control by medication without any complications. This decision is also in respect of medical negligence. The loss of vision, due to ocular complications of diabetes and not due to mode of treatment or multiple surgeries performed by opposite parties, opposite parties treated patient as per signs, symptoms of case and as per progression of disease they had not deviated from any standard of medical / ophthalmic practice during entire treatment of complainant. Had opposite parties avoided treatment of complainant for Vitreous Hemorrhages, it would have led to several other ocular complications, referring patient to another physician or higher institutions does not amount to abandonment or negligence. No case of negligence made out against opposite parties, complaint dismissed. In the case on hand also, the negligence is apparent on the part of the complainants as they have not followed the treatment prescribed by the opposite party and the treatment prescribed also found no fault by SVIMS, NIMS, Apollo Specialty Hospital, Chennai or Medwin hospital, Hyderabad. There was no finding that the opposite party has given wrong treatment or wrong diagnosis was made etc. Hence the facts of the above case are applicable to the facts of the case on hand.
16. Coming to next aspect of expert opinion, the opinion was given by P.W.3 Dr.M.Krishnaiah, MBBS., PGDHM., (DNB-Ortho)., ML, it shows that Dr.M.Krishnaiah, who is MBBS., PG Diploma in Hospital Management and Post Graduate in Law. The opposite party raised objection over the opinion given by P.W.3 Dr.M.Krishnaiah, mainly on the ground that he is not a qualified or competent to give any opinion much less expert opinion in Neurology. The Post Graduation Diploma in Hospital Management, is only in respect of management of hospital, it does not qualify P.W.3 to give his expert opinion on the prescriptions or the opinions given by the opposite party, who is M.D(General Medicine), D.M.(Neurology), who is Consultant Neurologist & Clinical Electrophysiologist. P.W.2 Dr.Vengamma, actually suspected a tumor in the brain of the 1st complainant and advised MRI Scan. Accordingly MRI Scan was taken and on the basis of the report she opined that meningioma arising from right side at tentorium and posterior falx and advised the complainants to meet the Neuro Surgeon Dr.B.C.M.Prasad. Later the doctors at Apollo Specialty Hospital, Chennai, checked earlier MRI and gave report Ex.A4 opining that above features consistent with large meningioma 6 cm(antero posteriorly) x 3 cm (medio laterally) x 6 cm (antero posteriorly) arising from posterior aspect of the falx on the right side causing compression and displacing the occipital horn of right lateral ventricle and adjacent cerebral parenchyma and fixed date for the surgery and accordingly they conducted surgery on 13.08.2011 after extending the need of removal of tumor. In view of the above discussion, we are of the opinion that the 2nd complainant is failed to establish that there is medical negligence on the part of the opposite party and also failed to establish that there is deficiency in service on the part of the opposite party and accordingly this point is answered.
17. Point No.(ii):- to answer this point, apart form the above discussion, we have stated that at the advise of Dr.P.Sudhakar at Srikalahasti, who treated the patient for about 2 years for the complaint of headache, suggested the complainants to approach the opposite party. The complainants have not properly used the medicines prescribed by the opposite party and negligently left the patient idle without using medicines for years together, because of such non-usage of any medicine and without following the advise of the opposite party in using the medicines, the illness of the 1st complainant was made complicated, for the purpose of taking second opinion, the 2nd complainant approached SVIMS hospital at Tirupati, where P.W.2 diagnosed that there was a tumor in the brain of the 1st complainant and advised them to consult Neuro Surgeon Dr.B.C.M.Prasad, but the 2nd complainant did not consult the said doctor and took the patient to Apollo Specialty Hospital, Chennai. After surgery was done, he got the child discharged from Apollo hospital and taken back to Medwin hospital, Hyderabad, from there also the 2nd complainant got discharged the 1st complainant, taken treatment at Dr.Keerthi, Tirupati. It clearly shows that the 2nd complainant perhaps with over anxiety on the health of his daughter taken to many hospitals without following the prescriptions properly, because of which the health of the 1st complainant was deteriorated even after surgery and removal of the tumor. When the complainant has approached several hospitals, it is difficult to fix the liability of negligence or deficiency in service on the opposite party, keeping aside the negligence apparent on the part of 2nd complainant. Basing on the opinion of P.W.3, who is not a competent to give expert opinion in respect of neurology, in which subject he is not at all qualified, no liability can be pasted on the opposite party. Since P.W.3 is not a competent and a qualified doctor in Neurology, his opinion in this regard cannot be treated as an expert opinion and it cannot be considered. During the cross examination P.W.3 admitted that he is not a Neurologist, he has not completed DNB-Ortho, he never treated or examined the 1st complainant Alekhya personally and he has given his opinion basing on the medical prescriptions supplied by the 2nd complainant (P.W.1). He admitted that he has not mentioned in Ex.A13 that the medicines prescribed by the opposite party are fake or false. He further admitted that he was not appointed by any Government or any Medical Authority and that he himself qualified to practice as Medico Legal Consultant. In view of those admissions, we are of the opinion that he is not at all qualified or competent to issue any expert opinion in this case. Under those circumstances, the 2nd complainant is not entitled to reliefs sought for against the opposite party. Accordingly this point is answered.
18. Point No.(iii):- In view of our holding on points 1 and 2, we are of the opinion that the 2nd complainant failed to establish that there is medical negligence on the part of the opposite party or that there is deficiency in service on the part of the opposite party. Therefore, the 2nd complainant is not entitled to the reliefs sought for and complaint therefore is liable to be dismissed.
In the result, the complaint is dismissed. No costs.
Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 24th day of March, 2015.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
WITNESS EXAMINED ON BOTH SIDES
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANTS
PW-1: M.Rajakumar
PW-2: Dr.B.Vengamma
PW-3: Dr.M.Krishnaiah
WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT
RW-1: Dr. C. Ravi Sekhar Reddy
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S
Exhibits (Ex-A) | Description of documents |
1. | Prescription given by Opposite Party doctor Dt: 26.07.2006, 20.11.2006, 28.05.2007, 09.05.2009. |
2. | Prescriptions by the Opposite Party Doctor. Dt: 20.05.2011. |
3. | A Photo copy of MRI report at SVIMS Hospital with prescriptions. Dt: 06.08.2011. |
4. | A Photo copy of Diagnosis conducted by Dr.N.Chidambaram at Apollo Hospital, Chennai before surgery. Dt: 10.08.2011. |
5. | A Photo copy of Report given by department of Histo Pathology, Apollo Hospital, Chennai. Dt: 20.08.2011. |
6. | A Photo copy of Report given by department of Histo Pathology, Apollo Hospital, Chennai. after surgery. Dt: 22.08.2011. |
7. | Discharge Summary of Department of Neuro, Apollo Hospital, Chennai. Dt: 23.08.2011. |
8. | A Photo copy of Histo Pathology report at NIMS Hospital, Hyderabad. Dt: 03.09.2011. |
9. | A Photo copy of Discharge summary at Medwin Hospital, Hyderabad. Dt: 23.09.2011. |
10. | Office copy of legal notice to the Opposite Party doctor with postal acknowledgement. Dt: 18.04.2012. |
11. | Interim reply from the Advocate on behalf of Opposite Party Doctor. Dt: 23.04.2012. |
12. | Reply to the Advocate for the Opposite Party. Dt: 08.05.2012. |
13. | Medical opinion issued by Dr. M.Krishnaiah. Dt: 09.11.2012. |
14. | Receipts towards medical expenses at SVIMS Hospital, Tirupati. |
15. | Bundle of receipts towards medical expenses at Apollo Hospital, Chennai and Numbering-11. |
16. | Bundle of receipts at Medwin Hospital at Hyderabad numbering 21 bills. |
17. | A Photo Copy of Discharge summary of Complainant No.1 issued by Christian Medical College, Vellore. |
18. | A Photo copy of medical report of Radiation Oncology Unit 1 from Complainant No.1. Dt: 04.07.2014. |
19. | A Photo copy of Death Certificate issued by C.M.C, Vellore in the Report of C1. Dt: 07.08.2014 to 15.08.2014. |
EXHIBITS MARKED ON BEHALF OF THE COURT
Exhibits (Ex-C) | Description of documents |
1. | Submission of Original case record of Kum.Mappeti Alekya, aged 10 Yrs/ Female, SVIMS Hospital No.459833. Dt: 08.07.2013 |
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The Complainants.
2. The opposite party.
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