IN THE CONSUMER DISUTES REDRESSAL FORUM, PATHANATHITTA

Dated this the 21^st day of May, 2010.

Present : Sri. Jacob Stephen (President):

Smt. C. Lathika Bhai (Member)

                                                  Sri. N. Premkumar (Member)

              C.C. No. 104/07 (Filed on 27.10.2007)

Between:

1.     Sabu John,

Chakkittedathu Mukalampurathu,

Muttom P.O., Thumpamon.

     2.  Usharani  --do--   --do--  

(By Adv. G.M. Idiculla)                                                   ....      Complainants.

And:

1.     Chitra Multispeciality Hospital,

M.C. Road, Pandalam.

2.     Dr. Jayachandran,

Medical Superintendent,

Chitra Multispeciality Hospital,

M.C. Road, Pandalam.

(By Adv. Kurian Vallamattam)

3.     Dr. Vijayakumar,

Paediatrician,

Chitra Multispeciality Hospital,

Pandalam.                                                             ....      Opposite parties.

ORDER

Sri. Jacob Stephen (President):

                   The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The complainants’ case is as follows:  A male baby was born in the legal wedlock of the complainants on 07.11.2006 at Deen Hospital, Punalur.  The initial treatment and necessary injections of the said child was at that hospital for the first three months.  Thereafter, the treatment and injections like DTP, HIB, HBV etc. were taken at the first opposite party hospital.  While so on 27.06.2007 at about 11 a.m., the child vomited at their house.  So the child was taken to the casualty ward of the first opposite party hospital at 2-30 p.m. and the doctor at the casualty ward examined the child and prescribed medicines and the duty nurse given the said medicines to the child.  After taking the medicines, the child got little relief from vomiting, but started watery diarrhea.  Thereafter at about 4 p.m., the third opposite party examined the child and given medicines and discharged the child by saying that the child is all right.  After reaching the house, at about 9-30 p.m., the watery diarrhea increased.  So the child was again taken to the first opposite party hospital.  The duty doctor contacted the third opposite party and given medicines as per the instruction of third opposite party and informed that admission is not required and sent them back. 

                     3. After reaching the house, there was no change in the child’s disease.  So on 28.06.2007 at 6 a.m. the child was again taken to the first opposite party hospital.  But the child was not examined by the doctors or given any medicines upto 10 a.m.  So the condition of the child becomes worse.  The complainants contacted the third opposite party and requested him to examine the child.  Apart from the complainants, the duty nurse and the relatives of the complainants were also requested the third opposite party to examine the child and gave treatments.  But he denied the request.  Meanwhile, the condition of the child becomes worse.  Thereafter at noon, the third opposite party referred the child to Pushpagiri Hospital, Thiruvalla by saying that the condition of the child is critical.  Thereafter, at 2-35 p.m., the child was admitted at Pushpagiri Hospital.  While preliminary investigations and treatments are going on, the child was declared dead at 3-50 p.m.  The cause of death of the child was due to the negligent treatment and due to the non-examination of the child, which is a clear deficiency of service from the part of the opposite parties, and the opposite parties are responsible and liable for the death of the only child of the complainant.

                   4. Subsequent to the death of the child, the complainants issued notices to the opposite parties on 17.08.2007 demanding compensation of Rs.20 lakhs.  The opposite parties received the notice and in response to the said notice, the opposite parties sent a reply on 19.09.2007 through an Advocate denying the demand of the complainants with false statements suppressing the real true facts.  Hence, this complaint for realising Rs.20 lakhs from the opposite parties for their negligence and deficiency of service.

                   5. In this case, the second opposite party filed a version for himself and for the first opposite party with the following main contentions:  The second opposite party denied all the allegations raised by the complainant against the opposite parties.  But they have admitted the admission and treatment and reference of the patient for better management.  According to the opposite parties, on 27.06.2007 in the evening, the child Anoop Sabu was brought to the opposite parties’ Paediatric Outpatient Department by the complainants with history of 2 episodes of vomiting and 2 episodes of acute watery diarrhea and history of fever.  All this problems occurred due to the giving of Kadai Egg to the 4 months old child by the parents.  The child was properly examined and was found to be stable, alert and active and no dehydration symptom was noted.  Proper medicines were prescribed and advised the parents to give plenty of fluids to the child and sent them to home.  Thereafter at about 10 p.m., the child was again brought to the casualty and he was attended by the CMO.  Though the parents complained of more vomiting and loose stool, the child was found to be active and well hydrated and advised the parents to continue the same.

                    6. In the morning of 28.06.2007, the child was again brought to the casualty and was found to be in a severely dehydrated stage.  The Paediatrician was informed about the state of the child who attended the child immediately.  Proper examination and lab tests were conducted and given proper treatment and medicines warranted in the circumstances.  Since the child was in hypovolemic shock, iv cannula was established and child was resuscitated the proper treatment and observations.  Since the child was suspected to have Sepsis, proper medicines were given and found that hypovolemic shock was corrected and child vitals were stable, the child was shifted to the ward around 10-30 a.m. and proper advices were given.  Around 12 Noon, the child had sudden purging 4-5 episodes followed by severe acidotic breathing. Aloc, abdominal distention, hypovolemic shock were seen.  Adequate and sufficient treatments were given then and there.  But the condition was not improved and it is realised that Critical Care Management in Higher Centre is required; the parents were informed about shifting the baby to Higher Centre.  The child was shifted to Pushpagiri Medical College Hospital in an ambulance of the opposite party along with 2 nurses and admitted to the Paediatric Ward of that hospital and the child was alive then.  The treatment provided to the child by the opposite parties was done with proper care and caution and in good faith.  There is no deficiency or negligence on the part of the opposite parties while providing service to the child.  They had rendered all medical treatment, the situation warranted adhering to the required medical ethics.  With the above contentions, the first and second opposite parties pray for the dismissal of the complaint with their cost.

                   7. The Paediatrician of the first opposite party hospital was arrayed as  third opposite party in the complaint.  But later the third opposite party was deleted from the party array by the complainant.

                   8. On the basis of the above pleadings, the following points were raised for consideration:

(1)              Whether the complaint is maintainable before this Forum?

(2)              Whether the reliefs sought for in the complaint are allowable?

(3)              Reliefs and Costs?

                    9. The evidence of this complaint consists of the oral deposition of PW1 and DW1 based on their proof affidavits and Exts.A1 to A4. There is no documentary evidence from the side of the opposite parties.  After closure of evidence, both sides were heard.

                   10. Points 1 to 3:  The complainants’ case against the opposite parties is that the treatment given by the opposite parties to the 8 months old son of the complainant on 27.06.2007 to 28.06.2007 was negligent and they were deficient in their service in providing the treatment which resulted in the death of the complainants’ only son and the opposite parties are liable to compensate the complainants for the mental agony and other sufferings sustained to them from the hands of the opposite parties. 

                   11. In order to prove the case of the complainants, the first complainant filed a common proof affidavit for the complainants narrating their case along with certain documents.  On the basis of the proof affidavit, the first complainant was examined as PW1 and the documents were marked as Exts.A1 to A4.  Ext.A1 is the copy of the Lawyer Notice dated 17.08.2007 sent to the opposite parties demanding to pay an amount of Rs.20 lakhs as compensation to the complainants for the negligence and deficiency of service committed by the opposite parties.  Ext.A2, A2(a) and A2(b) are the acknowledgment cards of Ext.A1.  Ext.A3 is the reply notice dated 19.09.2007 issued by the opposite parties.  Ext.A4 is the certificate-dated 28.06.2007 issued by Dr. Scany of Pushpagiri Medical College, Thiruvalla showing the death of the complainants’ child.

                   12. On the other hand, the contention of the first and second opposite parties is that the treatment provided to the child was with proper care and caution and in good faith and they had rendered all medical treatment warranted in the situation adhering to the required medical ethics and hence they argued that there is no deficiency of service and negligence on their part.

                   13. In order to prove the contentions of the opposite parties, the second opposite party filed a proof affidavit narrating their case.  On the basis of the proof affidavit, the second opposite party was examined as DW1. 

                   14. On the basis of the contentions of the parties, we have perused the available materials on record and it shows that there is no dispute between the parties regarding the admission, treatment of the child at the first opposite party hospital and the reference of the patient for better management and the death of the child at 3-15 p.m. on 28.06.2007 at Pushpagiri Medical College Hospital, Thiruvalla.  The first allegation of the complainants is that, the Paediatrician of the first opposite party hospital was reluctant to attend the patient and he denied examination and treatment of the patient irrespective of the request of the complainants and others.  But in cross-examination, PW1 deposed as follows:

“]nt#182;v shfp¸n\v ho­pw tlmkv]nn sIm­p h¶p,  A¶v 10 aWn¡v tUmIvSh¶v Ip«n¡v acp¶p \ÂIn hmnte¡v am.  28w XobXn Rm\pw `mcybpw IqSnbmWv Ip«nsb tlmkv]nn sIm­p t]mbXv.  tUmIvShnPbIpamdnt\bmWv ImWn¨Xv ”. This deposition of PW1 is against the allegation of the complainants.  So the allegation of the complainants against the opposite parties in this respect is not sustainable.  The next allegation against the opposite parties is that the cause of death of the child was due to the negligence of the opposite parties in giving appropriate treatment to the child.  But in this case, the complainants have not adduced any materials to substantiate their allegation.  The treatment records pertaining to the treatment of the child at the opposite parties hospital is not produced either by the complainants or by the opposite parties.  In the course of the trial, the complainants filed an application as I.A.72/09 seeking a direction to the opposite parties for producing the treatment records.  But the opposite parties filed an affidavit stating that the treatment records were not available with them, as they have given the treatment records to the complainants as per their demand.  But in cross-examination DW1 deposed that the photocopies of the treatment records are available with them.  Anyhow, either the original or the photocopies of the treatment records were not brought before this Forum. Ofcourse, the non-production of the treatment records by the opposite parties cannot be justified.

                   15. At the same time, PW1 deposed before this Forum in cross-examination that they have ascertained the cause of death of the child from the doctor who had attended the child at Pushpagiri Hospital, Thiruvalla.  But the complainants failed to bring the said doctor before this Forum for establishing their case.  Instead, the complainants have produced the certificate of death from Pushpagiri Hospital, Thiruvalla which is marked as Ext.A4.  But Ext.A4 does not reveal anything to show that the cause of death of the child was due to the negligence of the opposite parties.  The complainants have not even taken any interest to produce the reference letter issued by the opposite parties or the case sheet of the child who was admitted in the Paediatric ICU of Pushpagiri Hospital for some time.  What prevented the complainants to produce the doctor who had opined the cause of death of the child and the case sheet of Pushpagiri Hospital in respect of the deceased child before this Forum?  The cause of death of the child is unknown to this Forum.  Without knowing the cause of death, how can this Forum fasten a liability upon the opposite parties?  Though a deficiency is committed by the opposite parties in not producing the treatment records of the deceased child, that deficiency alone is not a ground for a finding against the opposite parties.  No doubt, that deficiency will be considered if there is any other evidence against the opposite parties even if that evidence is weak.

                   16. In this case, we have not seen any piece of evidence showing the circumstances under which the child was died.  None of the exhibits marked in evidence discloses the cause of death of the child or the deficiency of service of the opposite parties.  There is no evidence to show that the treatments provided by the opposite parties are against medical ethics and beyond the expectation of the complainants.  In the absence of any evidence based on medical records, expert opinion based on medical records or in the absence of any post-mortem report, we are not in a position to pass an order against the opposite parties. Ultimately, the complainants have failed to establish their case against the opposite parties.  In the circumstances, we are constrained to dismiss this complaint.

                   17. In the result, this complaint is dismissed.  No cost.

                   Pronounced in the Open Forum on this the 21^st day of May, 2010.

                                                                                                      (Sd/-)

                                                                                                Jacob Stephen,

                                                                                                   (President)

Smt. C. Lathika Bhai (Member)           :         (Sd/-)

Sri. N. Premkumar (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainants:

PW1  :         Sabu John.

Exhibits marked on the side of the complainants:

A1     :         Photocopy of the Advocate Notice dated 17.08.2007 issued by the

                    complainants to the opposite parties.

A2     :         Acknowledgment cards of Ext.A1.

A3     :`        Reply notice dated 19.09.2007 issued by the opposite parties to the   

                    complainants’ counsel.

A4     :         Certificate of death dated 28.06.2007 issued by Pushpagiri Medical

                    College Hospital, Thiruvalla.    

Witness examined on the side of the opposite parties:

DW1  :         Dr. L. Jayachandran.

Exhibits marked on the side of the opposite parties  :  Nil.

                                                                                      (By Order)

                                                                                Senior Superintendent

Copy to:  (1)  Sabu John, Chakkittedathu Mukalampurathu, Muttom P.O.,   

                  Thumpamon.                                           

(2)     Dr. Jayachandran, Medical Superintendent, Chitra Multispeciality  

      Hospital, M.C. Road, Pandalam.

(3)  Stock file.