AL-SHIFA HOSPITAL & SCANNING CENTRE & ANR. - Complainant(s)
Versus
C. SUDHA & ORS. - Opp.Party(s)
MR. JOGY SCARIA
06 Oct 2010
ORDER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 2689-2690 OF 2010
(Against the Order dated 25/03/2010 in Appeal No. 194/09 & 196/09 of the State Commission Kerala)
1. AL-SHIFA HOSPITAL & SCANNING CENTRE & ANR.Perinthalmanna POMalappuramKerala2. DR. RANI B CHITOORVengara Nusing Home, Vengara POMalappuramKerala
...........Petitioner(s)
Versus
1. C. SUDHA & ORS.House No. 14, Magatha KSHB Housing Colony, Perinthalmanna POMalappuramKerala2. DR. SAJU XAVIER, GASTROENTROLOGIST AL-SHIFA HOSPITAL AND SCANNING CENTREPerinthalmanna POMalappuramKerala3. DR. CHERIAN JOSEPH, SURGEON, M/S. AL-SHIFA HOSPITAL AND SCANNING CENTREPerinthalmanna POMalappuramKerala
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.K. BATTA ,PRESIDING MEMBERHON'BLE MR. VINAY KUMAR ,MEMBER
For the Petitioner :
NEMO
For the Respondent :
NEMO
Dated : 06 Oct 2010
ORDER
1. This is a twin revision petition against order of the Kerala State Consumer Disputes Redressal Commission, Appeal No.194 of 2009 and 196 of 2009 passed on 25.3.2010. The present revision petitioners were the two appellants in Appeal No.194 of 2009. Respondent No.1 before us was the appellant before the State Commission in other appeal No.196 of 2009 and the complainant before the District Forum Mallapuram. The revision petition has been moved against the common judgment of the State Commission in these two appeals. 2. There has been a delay of 14 days in filing this petition. Reasons given in the condonation application are accepted and the matter is considered on merits. Counsels for the two parties have been heard. 3. R-1/Complainant had undergone operation of hysterectomy. She was discharged on 27.5.1999 and was readmitted the same day due to acute abdominal pain and fever. An emergency operation was also performed and she was discharged on 3.6.1999, with a reference letter to Dr. Varghese of West Fort Hospital, Thrissur. At West Fort she was diagnosed with an infected surgical wound for which the closure surgery was performed and she was finally discharged on 2.8.1999. 4. In the above background, a complaint of medical negligence and deficiency in service against the Al-Shifa Hospital and its three doctors was filed before the District Forum, Mallapuram. The District Forum ordered payment of the compensation of Rs.155,000, together with costs, to be paid, jointly and severally, by Al-Shifa Hospital where the surgery was done and by Dr. Rani B. Chitoor, the Gynecologist who had performed it. In a common order in the two appeals, the State Commission has confirmed the order of compensation and costs as awarded by the District Forum. In addition the State Commission has awarded 7.5% interest for 2 years. Three months time was granted to pay the awarded amount from the date of order failing which further interest at 7.5% shall be payable from the date of order. The twin revision petition before us, as already noted, is filed by the Al-Shifa Hospital and by the Gynecologist who performed the hysterectomy on 20.5.1999. 5. The revision petitioners have argued that the diagnosis of drug induced gastritis cannot be held to be an error amounting to negligence. This comment completely ignores the fact that the State Commission itself has observed that the rupture of the intestine was detected in the X-Ray taken after the readmission of the patient on the date of discharge i.e. 27.5.1999. The State Commission has therefore, accepted the possibility that the gastroentrologist and the gynecologist did not suspect it to be a case of ileum perforation while putting the patient on treatment for gastric ulcer during post hysterectomy period. On this ground, the State Commission has disagreed with the finding of the District Forum that it amounted to a deficiency in service. 6. However, the other conclusion relating to negligence in the hysterectomy, arrived at by the State Commission has been assailed primarily on the ground that it is not based on any expert medical opinion. The State Commission (upholding the conclusion of the District Forum) has held that the serious nature of the condition of the complainant post ileotomy at Al Shifa and the case sheet of the West Fort Hospital indicate that the ileum perforation was not of the instant origin of 27.5.1999. Hence, the State Commission held that there was negligence on the part of the gyneacologist. On these issues, we find that the conclusions of the State Commission are based on the medical records and reports of the two hospitals- Al-Shifa, where the hysterectomy was performed and West Fort, where the corrective surgery was subsequently performed. Here, it is significant to note that it was the respondent Al-Shifa Hospital, which had referred the patient/complainant to the West Fort Hospital. 7. The diagnosis of duodenal perforation was that of the gastroentrologist of Al-Shifa and the finding of post operative peritonitis was that of the Surgeon of Al-Shifa Hospital. Both these doctors were respondents in the proceedings before the District Forum and the State Commission. The finding that the patient was having peritonitis and septicemia was that of the West Fort Hospital, when she was admitted there on 3.6.1999 i.e. five days after discharge from Al-Shifa Hospital. On the one hand, we find this report of septicemia and on the other, the revision petition claims Hence an important logical reasoning is that even if ileum injury is presumed to have occurred during hysterectomy, then faecal contamination in peritoneum would have occurred from the next day of operation itself leading to infections/septicemia. This is what actually should have happened as the patient was found to have developed septicemia. 8. In the above background of direct and professional reports from the concerned hospitals themselves mentioned above, we are unable to accept the claim in the revision petition that The State Commission ought to have left out the complicated medical facts to be proved by expert evidence rather than presuming facts with no reasonable and acceptable foundation. 9. The question whether expert medical evidence is necessary, has been directly addressed by Honble Supreme Court of India in V.Krishan Rao Vs. Nikhil Super Specialty Hospital & anr. (2010) 5 SCC 513 in the judgment delivered on 8.3.2010 the Court has observed:- In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. 10. In the instant case before us, the conclusions reached by the State Commission are, as already noted, directly based on the reports and records of the two hospitals examined in detail by the District Forum and the State Commission. Therefore, we reject the contention of the Revision Petitioners that in the absence of expert evidence to prove negligence, the order of the State Commission should be set aside. 11. For the reasons discussed above, the twin revision petition is dismissed and the order of the Kerala State Consumer Disputes Redressal Commission, in appeal Nos. 194 of 2009 and 196 of 2009, is confirmed. The parties to bear their own costs.
......................JR.K. BATTAPRESIDING MEMBER ......................VINAY KUMARMEMBER
Consumer Court Lawyer
Best Law Firm for all your Consumer Court related cases.
