Date of filing: 07-11-2012

                                    Date of Disposal: 23.01.2015

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.

PRESENT: - Kumari  Y.H.Prameela Reddy, M.L., LL.B., President

Sri S.Niranjan Babu, B.A., B.L., Male Member

     Smt. M.Sreelatha, B.A., B.L., Lady Member

Friday, the 23^rd day of January, 2015

C.C.No.59/2012

Between:

1.         D.Fakruddin S/o Kullayappa.

2.         D.Ameena W/o D.Fakruddin.

            Both are residing at D.No.13/753,

            Yerranelakottla,

            Ananthapuramu                                                                                … Complainants.

             Vs.

1.       Dr.C.Vasundhara Devi,

           Sri Sai Krupa Nursing Home,

           10-368, Sarojini Road,

           Ananthapuramu.

2.       The Divisional Manager,

           National Insurance Company Limtied,

           Beside Meda Petrol Bunk, Subash Road,

           Ananthapuramu.                                                                     ….        Opposite Parties

This case coming on this day for final hearing before us in the presence                                      of Sri B.Vijayakumar and Sri D.Shafiulla, Advocates for the complainants and Sri P.Guru Prasad, Advocate for the 1^st opposite party and Sri D.Rajasekhar Goud, Advocate for the 2^nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Sri S.Niranjan Babu, Male Member: - This complaint has been filed by the complainants under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.1,37,500/-  towards amount spent by the complainants for treatment, Rs.50,000/- towards mental agony and Rs.10,00,000/- towards compensation for the death of their daughter.

2.     The brief facts of the complaint are that: -  The complainants daughter D.Mallika was suffering with pain in abdomen and was admitted in the  nursing home of 1^st opposite party on 22.02.2012.  On the same day Ultra Sonographic examination of abdomen and pelvis  was conducted in nursing home and the 1^st opposite party has suspected that the patient is suffering from Ovarincyst/Torsyn/Rupture of Ovariencyst  i.e., Hemoperitorium.  On 23.02.2012 at about 4.45 PM Laporatomy was done on the patient and at about 7.30 PM the 1^st opposite party have informed the complainants that the condition of the patient is critical and asked the complainants to shift the patient to any higher  institute at Bangalore for further treatment.  The 1^st opposite party has also informed the complainants  that  by Ultra Sonographic examination, the 1^st opposite party has suspected  that the patient  was suffering with Rupture Overiancyst and ultimately during Laporatomy  the 1^st opposite party found  that the patient  was not suffering with  Ruptured Overiancyst and  that she was suffering with acute severe  hemorrhagic nicrotizing pancryticst  which could have been detected by the 1^st opposite party, if the 1^st opposite party have opted for CT Scan instead of Ultra Sonographic examination  and that the condition of the patient is very serious.  Having left with no option, the complainants shifted the patient to Columbia Asia at Bangalore and admitted her at 1.41 AM on 24.02.2012. The doctors treated the patient and observed that the patient was  brought  in the late period and that the patient  had unstable hemodynamic , desideration and seizures in pre-operative period  and the patient  is incubated and  shifted for further management with ventilation and observed  that it was a case of wrong diagnosis and delayed treatment.

3.         The complainants submitted that at Columbia Asia Hospital, CT scan of Abdomen showed acute severe hemorrhagic nicrotizing pancryticst and treated the patient upto 25.02.2012 and discharged  the patient  on mechanical ventilator off sedation, comatose, oozing from  caterer cystic and surgical wound.  The doctors advised that due to delay in bringing the patient, the chances of survival are very remote  and advised the complainants to admit the patient in any local Government General Hospital and to continue the patient on ventilation and to bring the patient back if she could recover from coma.  Accordingly the complainants brought back the patient and admitted in Government General Hospital, Anantapur where the patient died on 26.02.2012.  The complainants submitted that due to the wrong diagnosis of the 1^st opposite party and due to the negligence in not taking the CT scan of the patient the treatment to the patient was delayed by two days and without proper care the 1^st opposite party has conducted the surgery and after detecting that the diagnosis of the 1^st opposite party is not correct, the 1^st opposite party incubated  the patient  and advised to shift the patient to higher institute at belated stage by which time the condition of the patient has become critical and ultimately resulted in the death of the patient on 26.02.2012.

4.         Further the complainants submitted that they have deposited an amount of Rs.10,000/- towards  the nursing home charges and  surgery charges at the time of admission  of the patient  and subsequently paid an amount of Rs.10,000/- before the surgery.  Further the complainants had to spent a sum of Rs.92,500/- at Colombia Asia Hospital, Bangalore and further spent an amount of Rs.25,000/- towards the ambulance charges and attendant charges.

5.         The complainants submitted that the daughter of the complainants was aged                      17 years and was studying Intermediate and she had bright future.  Further the complainants submitted that their daughter died because of the negligence of the                              1^st opposite party and due to wrong diagnosis and treatment given to the patient.

6.         The complainants submitted that  they got issued a legal notice to 1^st opposite party requiring the 1^st opposite party  to pay an amount of Rs.10,00,000/- as compensation and RS.1,37,500/- towards medical expenses.  But the 1^st opposite party has issued a reply notice dt.04.07.2012 alleging  that the nursing home of the 1^st opposite party obtained  a policy bearing No.551000/46/11/87000001264 from the  2^nd opposite party and the liability of the 1^st opposite party has been indemnified  by the 2^nd opposite party.  On receipt of the said notice the complainants issued another notice dt.20.09.2012 requiring the 2^nd opposite party to pay the compensation of Rs.10,00,000/- and an amount of Rs.1,37,500/- towards the amount spent by the complainants for the treatment of the deceased  and the said notice was served  on the 2^nd opposite party. But the 2^nd opposite party has not replied. Hence filed this complaint claiming a sum of Rs.11,87,500/- from the opposite parties 1 & 2.

7.         The 1^st opposite party filed counter stating that the complaint is not maintainable either in law or on facts of the case. The 1^st opposite party stated that before traversing to the various allegations leveled in the complaint.   The 1^st opposite party submitted that she is a reputed medical practitioner who is known for possessing necessary skill and knowledge for the purpose for which she undertakes the 1^st opposite party is a conscious person and informs herself their duty of care in deciding whether to undertake the case and the duty of diligence in deciding what treatment has to be given and what procedure is to be adopted and duty of care in administration of treatment.  The 1^st opposite party always exercises reasonable care and degree of skill and knowledge.

8.         The 1^st opposite party submits that it must always be borne in mind that the very nature of medical profession is such that there may be more than one course of procedure which may be advisable for treating a patient.  The 1^st opposite party submits that the skill and competency of medical practitioners differs from doctor to doctor. The 1^st opposite party submits that she acted in a manner which is acceptable to medical profession and adopted a procedure which is acceptable to medical science.

9.         The 1^st opposite party submits that she attended on D.Mallika, the daughter of the complainants with due care and diligence and under those circumstances it is highly regrettable that the complainants holding the 1^st opposite party guilty of negligence.  The 1^st opposite party submits that the daughter of the complainants approached the                             1^st opposite party with unbearable lower abdominal pain and the 1^st opposite party tried her best to redeem the patient from suffering.   The 1^st opposite party further submits that it must be borne in mind that the 1^st opposite party will not gain anything by acting with negligence or omitting to do an act.    The 1^st opposite party further submits that the                   well-established judicial observation that indiscriminate allegations on medical professionals are counterproductive and does not serve any good to the society.

10.       The 1^st opposite party submits that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine of his patient.  The allegation in the complaint that D.Mallika, the daughter of the complainants who was suffering with pain in abdomen was admitted in the nursing of 1^st opposite party on 22.02.2012 is true and correct.  The 1^st opposite party further submits that even before admission the services of expert radiologist Dr.G.Narayanappa  (Retired G.G.H. Anantapur) are used for doing Ultra Scanning  as the clinical  and laboratory diagnosis  does not  disclose the pancreatitis.  The Ultra Scanning was done by the qualified radiologist Dr.G.Narayanappa and in his report he opined that there are signs of ruptured ovarian cyst with hemo peritoneum. And on the basis of the report the 1^st opposite party explained to the patient and the complainants and the relatives that the patient D.Mallika has to undergo laparotomy.  Further the 1^st opposite party submits that she informed the complainants to have second opinion   and also to obtain CT scan to rule out any other causes of pain. The 1^st opposite party submits that the complainants took the Ultra Scanning report and the opinion of the 1^st opposite party based on clinical laboratory and the complainants waited till afternoon to tell their decision.  Subsequently the complainants returned  to the nursing home  of 1^st opposite party  at about 2.00 PM on 23.03.2012 and informed to carry out the  medical surgical procedure as per the diagnosis  informing that the diagnosis in the circumstances is informed is correct.  The 1^st opposite party submits that by exercising due care and diligence procured the blood and arranged Dr.M.Vinay, Anaesthist.  Further the                                  1^st opposite party also pressed in the service of Dr.Kondaiah, M.S. to be present and assist at the time of the operation and Dr.Kondaiah also examined the patient clinically and on the basis of the laboratory findings and Ultra Scanning report expressed that

i)          It is haematoma (blood clotting) at posterior to sigmoid colon extending upto spleen and posterior to caecum and contusions in the middle of transverse colon.

ii)         The surgeon Dr.Kondaiah, M.S. showed all these to complainants and patients attendants and explained the risk of operation.

11.       The 1^st opposite party submits that after informing the diagnosis and nature of treatment the patient Mallika and the complainants voluntarily and out of their free will consented for the laparotomy.  The 1^st opposite party further submits that after obtaining the consent it is no doubt true that laparotomy was done on the patient at about 4.45 PM on 23.03.2012.  The 1^st opposite party submits that due care and diligence was exhibited with the assistance of the competent anesthetist and Dr.Kondaiah who is a reputed surgeon and further the 1^st opposite party submits that the laparotomy findings revealed that

i)          Free fluid of blood stained about two liters present.

ii)         There is a bossy swelling posterior to sigmoid colon extending upto splenic plexur

            in loin.

iii)        Right side also there is a swelling posterior to caecum haemartoma.

iv)        Contusion middle of transverse colon present.

12.       Further the 1^st opposite party submitted that the same was duly informed the finding in the operation theater, the patient condition and the prognosis like death to the complainants and to other relatives.  The patient was drowsy and responding to painful stimulus.  The patient developed convulsions and was advised to be shifted to the higher institutions by putting ventilator support and anti-combustion.  Further the 1^st opposite party submitted as the complainants expressed that the complainants are poor the                  1^st opposite party duly returned the amount of Rs.10,000/- to the complainants which was deposited by the complainants at the time of admission. And further the 1^st opposite party submitted that there is no truth in the allegation that the further amount of Rs.10,000/- paid before the surgery as alleged in the complaint.  The 1^st opposite party humbly submitted that it is beyond the comprehension of the 1^st opposite party as to how the complainants made such unceremonious allegation when in fact the 1^st opposite party has not received any amount from the complainants.

13.       The 1^st opposite party submits that the allegation that laparotomy findings has not revealed ruptured ovarian cyst is true and correct and the 1^st opposite party submits that the findings has been duly informed to the complainants and also made a mention of the same in the case record and handed over the case record to the complainants for verification and guidance in the higher institutions.  Further the 1^st opposite party  submits that this conduct  on  the part of the 1^st opposite party unerringly  established  the solemn  duty which informed the 1^st opposite party and the opposite party’s concern and commitment  to the wellbeing of the patient.

14.       The 1^st opposite party submitted that the laparotomy was undertaken on the basis of the Ultrasound report which has disclosed ruptured ovarian cyst as ruptured cyst is found in the report by using necessary diligence and skill common to a prudent medical man.  The 1^st opposite party further submits that under these circumstances and in view of complainants and their relations obtaining second opinion there was no possibility for any other diagnosis.

15.       The 1^st opposite party submitted that the allegation in the complaint that D.Mallika the daughter of the complainants who was suffering with pain in abdomen was admitted in the nursing home of 1^st opposite party on 22.02.2012 is true and correct and even before admission the 1^st opposite party thoroughly and meticulously examined the complainant’s daughter.  The allegation that D.Mallika complained pain in abdomen is not correct and she complained pain in lower abdomen and inspite of efforts to know the history of previous suffering D.Mallika has not informed anything.  The 1^st opposite party submits that the patient has not  complained of any  epigastric  pain radiating  to back and there are no signs  of jaundice  and infact the urine report brought by the complainants  and the blood report  at the instance of 1^st opposite party has not suggested any raised pancreatic enzymes in blood or urine.

16.       The 1^st opposite party submitted that the physical condition of the patient is that the patient was conscious pulse 80 beats per minute, BP110/60 heart and lungs are normal, per abdomen – slight tenderness was present in the left lumbar and iliac fossa present which is also noted in the case sheet of the patient.  Further the 1^st opposite party submits that it is pertinent  to note that any medical officer without clinical and any diligent medical man with those laboratory  and medical findings will opt for ultrasonography   and ultrasonography is also preferred for initial screening because  of its vide availability, lack of ionizing  radiation and the  ability to perform US at the bedside.

17.       The 1^st opposite party submitted that as the patient is not acutely ill due to abdomen tenderness, any medical officer of ordinary skill and diligence will opt for Ultrasonography. Further the 1^st opposite party submits that it may be true that Ultrasonography has some limitation but it is widely used to confirm the diagnosis and to look for complications such as acute fluid collection, hemorrhage, frenetic of cyst etc., and can be used for diagnosis and follow up complications.  The 1^st opposite party submits that only in cases where Ultrasonography is sub-optimal, the CT scan may be used to prove the medical information generally.   Basing on the clinical and laboratory findings the Ultrasonography is preferred and there was no fault and no negligence and lack of expertise and diligence cannot be attributed to 1^st opposite party.  Further the 1^st opposite party submits that the allegation that the 1^st opposite party could have opted for CT scan instead of Ultrasonography examination is not correct as submitted by the complainants.  The                       1^st opposite party submits that she came to know that the patient Mallika was shifted to Columbia Asia Hospital, Bangalore and   the allegation that the doctors who treated Mallika observed that the patient is brought in a late stage is absolutely incorrect.  The further allegation that the doctors informed the complainants that it is a case of wrong diagnosis and there was a delay in treatment is absolutely incorrect as no medical person of competence will find fault with the procedure adopted by the 1^st opposite party.  The complications are found in the patient only by laparotomy and the patient is advised to go to higher institutions and in fact within hours the patient is admitted in higher institution at Bangalore.  The delayed treatment if any on the findings made in the complaint, in the circumstances is attributed to the complainants and not to 1^st opposite party.

18.       The 1^st opposite party further submits that the fact remains the findings on CT scan as adverted itself discloses acute, severe hemorrhage, necrotizing, pancreatic cyst.  These observations disclose that the patient should have the symptoms about 6 to 8 months of duration and the life span is also about 2 years.  The complainants and the patient must have totally neglected in consulting a medical practitioner and obtain proper treatment at the earliest point of time. Further the 1^st opposite party submits that the allegation that the doctors advised that due to the delay in bringing the patient means and suggest that it relates back to few months and it is not all attributable to the diagnosis done by the 1^st opposite party.  Further the 1^st opposite party submits that the allegation that due to wrong diagnosis, by not taking the CT scan, the 1^st opposite party is negligent is absolutely incorrect.  Further the 1^st opposite party submits that even after   the symptoms occurred, the life span is about 2 years improbablise the allegations made in the complaint.  The allegation that there was 2 days delay and so death is the consequence is absolutely incorrect.  In fact there is absolutely no delay on the part of                                1^st opposite party and the 1^st opposite party acted with diligence is discernible from the allegations made in the complaint.  Further the 1^st opposite party submits that the condition of the patient has not become critical by the medical procedure followed by the 1^st opposite party and it is attributable to the negligence and complacencies of the patient.

19.       Further the 1^st opposite party submits that with regard to the deposit of the amounts is traversed above and the 1^st opposite party reiterate the same.  The 1^st opposite party has no knowledge of the amount spent by the complainants towards medical and transportation charges and the complainants is to put to strict proof of the same. Further the 1^st opposite party submits that the 1^st opposite party is not at all negligent in performing her duties and exercised due care, diligence and competency and adopted medical procedure which the circumstances warranted.  The 1^st opposite party submits that human beings are not immortal, the doctor has no divine power to prevent inevitable consequence of the neglected ailment suffered by the complainant’s daughter.  Hence there is absolutely  no negligence on the part of the 1^st opposite party and as such the                     1^st opposite party is not liable to pay any amount towards compensation much less the amount  claimed by the complainants.  The 1^st opposite party submits that she entered into a professional indemnity insurance policy with National Insurance Company Limited with policy bearing No.551000/46/11/87000001264 and the company is bound to indemnify the liability of 1^st opposite party if any but not the 1^st opposite party as claimed by the complainants. Hence the complaint is liable to be dismissed.

20.       Counter filed by the 2^nd opposite party stating that the complaint is not maintainable either in law or on facts of the case and deserves to be dismissed.  The 2^nd opposite party submits that the indemnity applies only to claims arising out of bodily injury and /or death of the any patient caused by or allegedly to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured.   The 2^nd opposite party further submits that the liability if any is subject to terms, conditions and limitations of the policy approved to have been issued by the 2^nd opposite party.

21.       The 2^nd opposite party submits that as per the complaint in para No.2 the deceased was discharged from Columbia Asia Hospital, Bangalore at coma stage and no doctor can discharge at the stage of coma.  The said Columbia Asia Hospital is a super specialty hospital hence they have to give further treatment to recover the deceased from coma. There is no super specialty hospital in Anantapur and if they advised the complainants  to take back the patient, there is gross negligence on the part of the  authorities  of Columbia Asia Hospital  and the complainants as they took back  the patient to Anantapur  since they know very well  that there is no any  super specialty  hospital or  specialized hospitals in Anantapur.

22.       The 2^nd opposite party submits that as per the history of the deceased and report of the Radiologist the treatment was given by the 1^st opposite party and the 1^st opposite party has referred to higher hospital for further treatment.  Hence there is not fault on the part of the 1^st opposite party in giving treatment to the patient. The allegation that the                      1^st opposite party should have opted for CT scan instead of Ultrasonography examination cannot come under negligence.  Hence the 2^nd opposite party is not liable to pay any amount of compensation to the complainants. Further the 2^nd opposite party submits that as there is no professional negligence or wrong treatment or wrong medicine was prescribed by the 1^st opposite party in giving treatment to the patient. Hence the                             2^nd opposite party cannot be held responsible to pay any compensation to the complainants as claimed by them.

23        i)          Whether there is any deficiency of service on the part of the opposite

                        parties 1 & 2?

            ii)         To what relief?

24.       In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Ex.A1 to A13 documents. On behalf of the                       1^st opposite party evidence on affidavit of the 1^st opposite party has been filed and no documents are marked on behalf of the 1^st opposite party.  On behalf of the 2^nd opposite party evidence on affidavit of the 2^nd opposite party has been filed and no documents are marked on behalf of the 2^nd opposite party.

25.       Heard both sides.

26.       POINT:-          The counsel for the complainants  submitted that the complainants  daughter D.Mallika aged about 17 years who was studying intermediate was suffering with pain in abdomen and was admitted in the  nursing home of 1^st opposite party on 22.02.2012.  On the same day Ultra Sonographic examination test was done to the patient and the 1^st opposite party has suspected that the patient is suffering from Ovarincyst/Torsyn/Rupture of Ovariencyst  i.e., Hemoperitorium.  On 23.02.2012 at about 4.45 PM Laparotomy was done on the patient and at about 7.30 PM the 1^st opposite party have informed the complainants that the condition of the patient is critical and asked the complainants to shift the patient to any higher  institute at Bangalore for further treatment.  The 1^st opposite party has also informed the complainants  that  by Ultra Sonographic examination, the 1^st opposite party has suspected  that the patient  was suffering with Rupture Overiancyst and ultimately during Laparotomy  the 1^st opposite party found  that the patient  was not suffering with  Ruptured Overiancyst and  that she was suffering with acute severe  hemorrhagic nicrotizing pancryticst  which could have been detected by the 1^st opposite party, if the 1^st opposite party had opted for CT scan instead of Ultra Sonographic examination  and that the condition of the patient is very serious.   Further the counsel for the complainants submitted that the complainants having no option, shifted the patient to Columbia Asia super specialty Hospital at Bangalore and admitted her at 1.41 AM on 24.02.2012. The doctors treated the patient and observed that the patient was  brought  in the late period and that the patient  had unstable hemodynamic , desideration and seizures in pre-operative period  and the patient  is incubated and  shifted for further management with ventilation and observed  that  the case was wrong diagnosis and delayed treatment. The counsel for the complainants submitted that at Columbia Asia Hospital, Bangalore CT Abdomen showed acute severe hemorrhagic nicrotizing pancryticst and treated the patient up to 25.02.2012 and discharged the patient on mechanical ventilator off sedation, comatose, oozing from caterer cystic and surgical wound.  Further the counsel for the complainant submitted that the doctors advised that due to delay in bringing the patient, the chances of survival are very remote and advised the patient to admit in any local Government General Hospital and to continue the patient on ventilation and to bring the patient back if she could recover from coma.  Accordingly the patient was brought back to Government General Hospital, Anantapur where the patient died on 26.02.2012. 

27.       The counsel for the complainants argued that due to the wrong diagnosis of the                     1^st opposite party and due to the negligence of the 1^st opposite party in not taking the CT scan of the patient the treatment to the patient was delay for two days and without proper care. Further the counsel for the complainants argued that the 1^st opposite party has conducted the surgery and after detecting that the diagnosis of the 1^st opposite party was not correct, the 1^st opposite party incubated the patient and advised to shift the patient to any other higher institute at belated stage by which time the condition of the patient became critical and ultimately resulted in the death of the patient on 26.02.2012.

28.       The counsel for the complainants submitted that an amount of Rs.10,000/-  was paid by the complainants to  the nursing home at the time of admission and before the surgery the complainants paid another sum of Rs.10,000/- to the 1^st opposite party.   All together the complainants have spent a sum of Rs.92,500/- at Colombia Asia Hospital, Bangalore and further spent an amount of Rs.25,000/- towards the ambulance charges, attendant charges. The counsel for the complainants argued that inspite of spending  a sum of Rs.1,37,500/- towards medical test and treatment the complainants lost their daughter due to the negligence of 1^st opposite party, hence the 1^st opposite party is liable to pay the amounts spent by the complainants and also liable to pay a compensation of Rs.10,00,000/-.

29.       The counsel for the complainants argued that the complainants got issued a legal notice to 1^st opposite party compensation of Rs.1,37,500/- towards medical expenses incurred by them.  But the 1^st opposite party has issued a reply notice dt.04.07.2012 stating that she obtained a policy bearing No.551000/46/11/87000001264 from the                 2^nd opposite party and that the liability of the 1^st opposite party has been indemnified by the 2^nd opposite party and again complainants got  issued another legal notice dt.20.09.2012 to 2^nd opposite party to pay the compensation of Rs.10,00,000/- and an amount of Rs.1,37,500/- towards amount spent by the complainants  towards the medical expenses. As there was no reply from the 2^nd opposite party the complainants filed this complaint claiming a sum of Rs.10,00,000/- towards compensation and Rs.1,37,500/- towards amount spent by the complainants towards treatment and an amount of Rs.50,000/- towards mental agony suffered by the complainants.

30.       The counsel for the 1^st opposite party submitted that it is true that the complainant’s daughter was admitted in the nursing home of 1^st opposite party on 22.02.2012 and on the same day the patient was subjected to ultra-scanning as the clinical laboratory diagnosis did not disclose pancreatitis, the said test was done by a qualified radiologist Dr.G.Narayanappa and in his report he opined that there are signs of ruptured ovarian cyst with hemo peritoneum.  The counsel for the 1^st opposite party submitted that basing on the report the same was explained to the patient and the complainants and their relatives that the patient has to undergo laparotomy.  Further the counsel for the 1^st opposite party submitted that the 1^st opposite party has informed the complainants to have second opinion and also to obtain CT scan to rule out any other cause for pain. Then the complainants took the Ultra Scanning report and the opinion of the 1^st opposite party based on clinical laboratory and the complainants waited till afternoon to till their decision.  Then the complainants returned to the nursing home at about 2.00 PM on 23.03.2012 and informed the 1^st opposite party to carry out the medical surgical procedure as per the diagnosis. The counsel for the 1^st opposite party submitted that the 1^st opposite party was a reputed medical practitioner and she was possessing the necessary skill and knowledge for the purpose which the 1^st opposite party undertakes.  The counsel for the 1^st opposite party submitted that it must always be borne in mind that the very nature of the medical profession is such that there may be more than one course of procedure which may be advisable for treating the patient.  The skill and competency of medical practitioners differs from doctor to doctor and each doctor may adopt a different procedure which is acceptable to medical science.

31.       The counsel for the 1^st opposite party submitted that the 1^st opposite party has attended on the patient D.Mallika with due care and diligence and under those circumstances it is highly regrettable that the complainants held the 1^st opposite party guilty of negligence.  The counsel for the 1^st opposite party submitted that the well-established judicial observation is that indiscriminate allegations on medical professional are counterproductive and does not serve any good to the society. The counsel for the 1^st opposite party submitted that the 1^st opposite party has taken due to care and diligence and procured the blood and arranged Dr.M.Vinay, Anaesthist and also taken the services of Dr.Kondaiah, M.S. to be present and assist at the time of the operation.  Dr.Kondaiah also examined the patient clinically and on the basis of the laboratory findings and Ultra Scanning report expressed that

i)          It is haematoma (blood clotting) at posterior to sigmoid colon extending upto spleen and posterior to caecum and contusions in the middle of transverse colon.

ii)         The surgeon Dr.Kondaiah, M.S. showed all these to complainants and patients attendants and explained the risk of operation.

32.       The counsel for the 1^st opposite party submitted that after informing the diagnosis and nature of treatment the patient Mallika and her parents voluntarily out of their free will consented for the laparotomy and laparotomy was conducted on the patient at about 4.45 PM on 23.03.2012 and at the time of laparotomy it was revealed that

i)          Free fluid of blood stained about two liters present.

ii)         There is a bossy swelling posterior to sigmoid colon extending upto splenic plexur

            in loin.

iii)        Right side also there is a swelling posterior to caecum haemartoma.

iv)        Contusion middle of transverse colon present.

33.       Further the counsel for the 1^st opposite party submitted that the 1^st opposite party admittedly informed the findings in the operation theater, the condition of the patient the prognosis like death to the complainants and the patient was drowsy and responding to painful stimulus.  The patient developed convulsions and was advised to be shifted to the higher institution by putting ventilator support and anti-combustion.  Further the counsel for the 1^st opposite party submitted that the 1^st opposite party has returned the amount of Rs.10,000/- to the complainants which was deposited by the complainants at the time of admission as the complainants expressed that they were poor. Further the allegation of the complainants that before the surgery they paid another sum of Rs.10,000/- to                             1^st opposite party is false and it is a unceremonious allegation on 1^st opposite party.

34.       Further the counsel for the 1^st opposite party argued that the allegation that Laparotomy findings has not revealed ruptured ovarian cyst is true and the 1^st opposite party has informed to the complainants and finding Laparotomy and made a mention of the same in the case record and handed over the case record to the complainants for verification and guidance in the higher institution.  This clearly shows that the 1^st opposite party unerringly established the solemn duty commitment for the wellbeing of the patient. The counsel for the 1^st opposite party argued that the allegation that the patient D.Mallika complained pain in abdomen is not correct and she complained pain in the lower abdomen and inspite of efforts  to know the previous history of suffering  D.Mallika did not inform anything  as the patient has not  complain of any  epigastric  pain radiating  to back. The 1^st opposite party argued that there were no signs of jaundice and infact the urine report brought by the complainants and the blood report which was taken at the instance of 1^st opposite party has not suggested any raised pancreatic enzymes in blood or urine. Further the counsel for the 1^st opposite party argued that the pulse 80 beats per minute, BP110/60 heart and lungs of the patient were normal. Further the counsel for the 1^st opposite party argued that it is pertinent to note that any medical officer without clinical and any diligent medical man with those laboratory and medical findings will opt for ultrasonography   and ultrasonography is also preferred for initial screening because of its vide availability, lack of ionizing radiation and the ability to perform ultrasonography at the bedside. Further the counsel for the 1^st opposite party argued that it may be true that Ultrasonography has some limitations but it is widely used to confirm the diagnosis and to look for complications such as acute fluid collection, hemorrhage, frenetic of cyst etc., and can be used for diagnosis and follow up complications. Further the counsel for the 1^st opposite party argued that only in cases where Ultrasonography is sub-optimal, the CT scan may be used to prove the medical information generally. 

35.       Further the counsel for the 1^st opposite party argued that basing on the clinical and laboratory findings the Ultrasonography is preferred and there was no fault and no negligence and lack of expertise in preferring Ultrasonography.  Further the allegation that the 1^st opposite party could have opted for CT scan instead of Ultrasonography examination is not correct as submitted by the complainants.  The counsel for the                            1^st opposite party submitted that the 1^st opposite party came to know that the patient Mallika was shifted to Columbia Asia Hospital, Bangalore and the allegation that the doctors who treated Mallika observed that the patient is brought in a late stage is absolutely incorrect.  The further allegation that the doctors informed the complainants that it was a case of wrong diagnosis and there was a delay in treatment is absolutely incorrect and no medical person of competence will find fault with the procedure adopted by the 1^st opposite party.  The complications of the patient were found only by laparotomy and the patient is advised to go to higher institution and in fact within hours the patient is admitted in higher institution at Bangalore. Hence, the delayed treatment if any on the findings made in the complaint, in the circumstances is attributed to the complainants and not to 1^st opposite party.

36.       Further the counsel for the 1^st opposite party argued that the findings of CT scan as adverted itself discloses acute, severe hemorrhage, necrotizing, pancreatic cyst.  These observations disclose that the patient should have the symptoms about 6 to 8 months of duration and the life span is also about 2 years.  The complainants and the patient has totally neglected in consulting a medical practitioner and obtain proper treatment at the earliest point of time and it is this observation that the doctors advised that due to the delay in bringing the patient means and suggest that it relates back to few months and it is not at all attributable to the diagnosis done by the 1^st opposite party.  Further the 1^st opposite party argued that there was wrong diagnosis and negligence on the part of the 1^st opposite party and the allegation that there was two days delay which caused the patient’s death is absolutely wrong. Hence the allegations made in the complaint against the 1^st opposite party are not correct and there is no wrong diagnosis or negligent act on the part of the 1^st opposite party. The counsel for the 1^st opposite party argued that in the above circumstances the 1^st opposite party is not liable to pay any compensation as claimed by the complainants. Further the counsel for the 1^st opposite party has taken  a professional indemnity insurance policy  with  the 2^nd opposite party under policy bearing No.551000/46/11/87000001264 and  it is the 1^st opposite party  which is liable to pay it any in case of any liability hence the complaint against the                                  1^st opposite party is liable to be dismissed.

37.       The counsel for the 2^nd opposite party submits that the 2^nd opposite party indemnity applies only to claims arising out of bodily injury and /or death of any patient caused by or allegedly to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured.  Further the counsel for the 2^nd opposite party argued that the liability if any is subject to terms, conditions and limitations of the policy approved to have been issued by the 2^nd opposite party. Further the 2^nd opposite party argued that as per the complaint in para No.2 the patient was discharged from Columbia Asia Hospital, Bangalore at coma stage and no doctor can discharge at the stage of coma.  The said Columbia Asia Hospital is a super specialty hospital hence they have to take steps for better treatment for the recovery of the patient from coma.  And further argued that there is no super specialty hospital in Anantapur and if the Columbia Asia Hospital authorities have advised the complainants to take back the patient, there is gross negligence on the part of the authorities of Columbia Asia Hospital and the complainants who took back the patient to Anantapur since they know very well that there is no any super specialty hospital at Anantapur.

38.       Further the counsel for the 2^nd opposite party argued that as per the history of the patient and report of the radiologist the treatment was given by the 1^st opposite party and the 1^st opposite party referred to higher hospital for further treatment. Hence there is no fault on the part of the 1^st opposite party in giving treatment to the patient and the allegation that the 1^st opposite party should have opted for CT scan instead of Ultrasonography test cannot come under negligence. Hence the 2^nd opposite party is not liable to pay any amount of compensation to the complainants as prayed.

39.       After hearing the arguments of both sides and perusing the documents there is no dispute with regard to the admission of the patient in the hospital of 1^st opposite party and as per their respective contentions. There is no dispute with regard to the Ultrasonography test conducted on the patient D.Mallik and basing on the report of Radiologist which is marked as Ex.A1 where in it was observed by Radiologist Dr.G.Narayanappa that there was ruptured ovarian cyst with hemo peritoneum. Ex.A2 which is the letter addressed by the 1^st opposite party to St.Johna Hospital for further treatment and management of the patient shows that same. As per the arguments of complainants counsel the patient  D.Mallika was admitted on 22.02.2012 at 1^st opposite party hospital and on the advice of the 1^st opposite part Ultrasonography  was conducted on the patient  and basing on the reports the 1^st opposite party has advised the complainants  and the patient to undergo laparotomy and admittedly the 1^st opposite party has conducted  laparotomy  on the patient and found  2 liters of  dark colour  blood in the perilortial  cavity of the patient  and the 1^st opposite party advised the complainants to go to higher institute at Bangalore for further management and treatment as the patient condition was serious.  The contention of the complainants counsel is that the 1^st opposite party has opted for Ultrasonography examination for diagnosing the complaint of the patient but if the 1^st opposite party opted for a CT scan the actual problem of the patient could have been assessed by the 1^st opposite party.   But as the 1^st opposite party has not opted for CT scan and after ultrasonography examination the 1^st opposite party could not diagnose the actual problem of the patient and conducted laparotomy on the patient D.Mallika.  It has further complicated the patient’s condition and when the patient’s condition was serious the 1^st opposite party has advised for better treatment to go to higher institute at Bangalore. 

40.       Considering the complainants contention that if the 1^st opposite party has opted for C.T.scan there could have been correct diagnosis of the problem of the patient and the treatment could have been of different manner and the patient could have been survived. Admittedly the 1^st opposite party has not opted for CT scan, hence there was a lapse on the part of the 1^st opposite party in not correctly diagnosing the cause for pain in the abdomen of the patient and it was after conducting laparotomy on the patient the                               1^st opposite party came to know that there diagnosis and opting  for laparotomy was not correct and advised for further treatment and management at a higher institute and the same was conveyed to the complainants at last movement.  In the circumstances the complainants have rushed  the patient to a higher institute Columbia Asia Hospital wherein she was admitted and treated for one day and the Columbia Asia Hospital authorities advised the complainants that the patient’s condition was serious and patient  was in coma condition hence advised the complainants to return back to Anantapur. On the advice of the authorities of Columbia Asia Hospital the complainants brought the patient back to Anantapur and admitted in Government General Hospital where she died on 26.02.2012.

41.       In the above circumstances we are of the opinion that if the 1^st opposite party opted for a CT scan instead of Ultrasonography examination the 1^st opposite party could have correctly assessed the patient’s complaint and have opted for treatment but somehow the 1^st opposite party has erred in assessing the patient’s condition and advised for ultrasonography instead of C.T. scan and could not diagnose properly.   As the                                   1^st opposite party has failed to diagnose properly and conducted laparotomy on the patient and when the patient’s condition was serious has advised the complainants to take the patient to higher institute for further treatment and management which has resulted in the death of the complainant’s daughter.

42.       In the above circumstances though there is no willful fault on the part of the                                   1^st opposite party somehow if the 1^st opposite party had been little bit cautious in advising the patient to go for a CT scan instead of Ultrasonography examination the patient could have survived.  However though there is no willful fault on the part of the 1^st opposite party due care has not been taken by the 1^st opposite party in assessing the suffering of the patient.  Hence we are of the view that there is negligence on the part of the                               1^st opposite party for which the opposite parties 1 &2 are liable to pay compensation to the complainants.

43.       As the complainant’s daughter D.Mallika was a student of intermediate aged about 17 years might have had at a bright future but due to the wrong diagnosis and treatment the patient ultimately died.   Considering the fact that any parents will have many aspirations about their children and in the instant case also the complainants had lost their daughter for which no amount can compensate the loss. But any how in the circumstances of the case some relief must be granted to the complainants towards compensation for the death of their child. In view of the above observation we feel that  the opposite parties 1 & 2 are liable to pay compensation of Rs.3,50,000/- for the death of D.Mallika and further the complainants had spent a sum of Rs.61,258/- as per Columbia Asia Hospital bill as per Ex.A5 and a sum of Rs.25,000/- is granted  towards mental agony.

44.       In the result the compliant is  partly allowed by directing the opposite parties                      1 & 2 jointly and severally liable to pay to the complainants a sum of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand Only ) towards compensation for the death of the deceased, Rs.61,258/- (Rupees Sixty One Thousand Two Hundred and Fifty Eighty Only) towards amount spent by the complainants for  treatment at Columbia Asia Hospital, Bangalore  and Rs.25,000/-  ( Rupees Twenty Five Thousand Only) towards mental agony within one month from the date of this order failing  which interest shall be paid  @9% P.A. from the date of this order till the date of realization.

Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 23^rd day of January, 2015.

                     Sd/-                                     Sd/-                                    Sd/-

               LADY MEMBER,                        MALE MEMBER                              PRESIDENT

DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM

             ANANTHAPURAMU                 ANANTHAPURAMU                  ANANTHAPURAMU

APPENDIX OF EVIDENCE

WITNESSES EVIDENCE ON CHIEF AFFIDAVITS

ON BEHALF OF THE COMPLAINANTS:

PW1:D.Fakruddin Complainant.

PW2: M.Chandrasekhar, Doctor Consultant critical care Medicine, Bangalore      

PW3: V.Govardhan Reddy, Doctor, Anantapur.

ON BEHALF OF THE OPPOISITE PARTIES 1 & 2

RW1:  M.Kamalanabham, Sr.Divisional Manager, Anantapur.

RW2:  Dr.C.Vasundra Devi, Doctor, Anantapur

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANTS

Ex.A1 Original Ultasongraphic examination of abdomen and Pelvis report of deceased

D.Mallika issued by the 1^st opposite party dt.22.02.012.

Ex.A2 Original referral letter of 1^st opposite party to higher medical institute dt.23.02.12.

Ex.A3 Photo copy of case sheet issued by the 1^st opposite party.

Ex.A4 Photo copy of discharge summary of deceased D.Mallika issued by the Columbia

            Asia Hostal, Bangalore in favour of deceased D.Mallika.

Ex.A5 Photo copy of Medical Bills issued by Columbia Asia Hospital, Bangalore in

            favour of the deceased D.Mallika.

Ex.A6 Lab report of deceased D.Mallika issued by Columbia Asia Hospital, Bangalore,

            dt.24.02.0212.

Ex.A7 Office copy of the legal notice dt.15.06.2012 got issued by the complainant to the

            1^st opposite party.

Ex.A8 Served postal acknowledgment singed by the 1^st opposite party.

Ex.A9 Reply notice dt.04.07.2012 issued by the 1^st opposite party to the counsel for the

complainants.

Ex.A10 Office copy of the legal notice dt.20.09.2012 got issued by the complainants to

              the 2^nd opposite party.

Ex.A11 Served postal acknowledgment singed by the 2^nd opposite party.

Ex.A12 Original death certificate of deceased D.Mallika issued by the Anantapur

              Municipal Corporation.

Ex.A13 Original Case Sheet of deceased D.Mallika.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES1 & 2

NIL

EXHIBITS MARKED ON BEHALF OF THE FORUM

Ex.C1 Discharge summary dt.25.02.2012 issued by Columbia Asia Hospital, Bangalore.

                  Sd/-                                    Sd/-                                    Sd/-

               LADY MEMBER,                      MALE MEMBER                       PRESIDENT

DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM

             ANANTHAPURAMU                 ANANTHAPURAMU                  ANANTHAPURAMU