IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 371/09 DATED 21.12.2009<br /> ORDER<br /> <br /> Complainant Smt.C.Nagarathna, W/o R.Lakshman R/at LIG 2, D.No.825, First Stage, Lakshmikanthanagara, Hebbal, Mysore-17.<br /> (By Sri. M.Mahadeva Swamy, Advocate)<br /> Vs. <br /> Opposite Parties 1. Adminstrator, Colombia Asia Hospital, 21st Century Health Care, 85-86, Bangalore-Mysore Ring Road Junction, Bannimantapa A Layout, Siddiqui Nagara, Mysore.<br /> 2. Administrator, Apollo BGS Hospital, Adi Chunchanagiri Road, Kuvempunagara, Mysore-23.<br /> 3. Dr.Syed M.Azam, Consultant Orthopedic Surgeon,<br /> 4. Dr.Aparna Gangoli, Consultant Patholgist,<br /> O.P.3 and 4 are W/at Colombia Asia Hospital, 21st Century Health Care, 85-86, Bangalore-Mysore Ring Road Junction, Bannimantapa A Layout, Siddiqui Nagara, Mysore.<br /> (By Sri. O.Sham Bhat, Advocate for O.P.1, 3 and 4 <br /> and O.P.2 - Exparte)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 06.10.2009<br /> Date of appearance of O.P. : 21.10.2009<br /> Date of order : 21.12.2009<br /> Duration of Proceeding : 2 MONTHS <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under section 12 of the Consumer Protection Act against the opposite parties, seeking a direction to the first opposite party to pay a sum of Rs.5,00,000/- as compensation for deficiency in medical service as well as for mental agony and physical inconvenience caused and cost of the proceedings.<br /> <br /> 2. In the complaint it is alleged that, on 07.08.2009 at 5.30 pm, the complainant met with motor vehicle accident and sustained grave injuries to her head as well as right arm and both the legs. She was immediately shifted to first opposite party hospital. Tests were conducted and on 08.08.2009 laboratory report was given, stating that, blood group of the complainant is O positive. Several treatments were given to the complainant, such as lavage and sterile betadine dressing of the limb wounds, below knee skin traction with splinting debridement and suturing of the scalp wounds etc., and was discharged. After discharge, the complainant started to feel uneasiness and immediately she contacted the first opposite party, for which evasive reply was given. Then, complainant approached second opposite party hospital. In the second opposite party hospital, it was noticed that, the glass pieces from the head injury of the complainant were not at all removed. The complainant was directed to under go another operation. Complainant underwent another operation and at that time, in the second opposite party hospital, glass pieces were removed. The second opposite party also verified the blood group of the complainant and found the blood group as B negative. That fact is corroborated from the report of Vikram Hospital. The first opposite party willfully and negligently diagnosed the blood group of the complainant as O positive instead of B negative. Further, because of the negligence on the part of the first opposite party, the complainant was compelled to undergo second operation to get removal of the glass pieces. The complainant suffered monitory loss and also mental agony. It all happened due to negligent act on the part of the first opposite party. The first opposite party is a so called 21st Century Health Care, should have taken minimum care for diagnosing the correct blood group and removing the glass pieces from the head of the complainant. The deficiency in service on the part of the first opposite party forced the life of the complainant to a miserable condition, which could have gone to the extent of loss of her life. Timely, treatment given by the second opposite party, the complainant was saved. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version has denied material allegations against it, but, it is stated that, the initial clinical diagnosis at the emergency revealed a fracture of left femur and profuse bleeding in the scalp. Immediately a conservative line of medical management was done for the wounds of the scalp and limbs which included suturing of the scalp wound after removing all foreign particles visible to the naked eye. X-ray of the limbs and CT scan was done. Considering the fact that, the complainant is diabetic and her physiological vitals were stable and there were no adverse sings, the first opposite party waited till arrival of the husband of the complainant and her relatives, to explain the detail diagnosis and advised for surgery on the next morning. After managing her blood sugar level and obtaining necessary consents, at about 9.15 pm the complainant was admitted as an inpatient and posted for surgery on the next day at 10.00 am. Blood sample of the complainant was collected and sent to the lab for necessary investigation. At this point of time, the complainant started resisting for further treatment and wanted to get herself discharged at the earliest. The husband of the complainant was informed the said fact and first opposite party was given to an understanding that husband of the complainant is employee in KSRTC and second opposite party is one of the KSRTC empanelled hospital. If the complainant continues treatment in that hospital, her husband can avail benefit of medical expenses, which was not possible, if she continued the treatment in first opposite party. Considering the health condition of the complainant, though first opposite party was not inclined to discharge the patient, due to stiff resistance of the complainant and her family members, the first opposite party was compelled to discharge the complainant on 08.08.2009 at 11.00 am against medical advice, explaining the pros and cons of refusal of investigation and further treatment and handed over the discharge summary including X-ray, CT scan and blood grouping. It is contend that, on 07.08.2009 itself presence of foreign particles in the scalp was disclosed to the complainant and her relatives and was also advised that, giving due consideration to the health condition of the complainant, same would either be removed simultaneously while performing orthopedic surgery or separately as the case may be. It is denied that, in the first opposite party hospital surgery was conducted. It is stated that, initial suturing of the scalp was conservative line of medical management to arrest profuse bleeding. As regards, wrong blood group, the first opposite party admits, the unintentional technical error on the part of it’s employee. The lab staff inadvertently picked up the blood sample of another patient with identical name. Based on the said wrong blood grouping, no further treatment was given and no harm, prejudice or loss was caused to the complainant by virtue of the wrong blood grouping. It is contended that, blood transfusion will not be carried out only on the basis of blood group without confirming the same by further confirmatory tests and cross matching of fresh blood sample of the patient. The bonafide mistake cannot be construed as willful and negligent act. In the event, if the Forum awarding any compensation on these grounds, she is entitled only a nominal damages. It is contend that, frivolous complaints like this cannot be encouraged. It is stated that, there is no deficiency in service on the part of this opposite party. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party despite due service of the notice, remained absent.<br /> <br /> 5. Third and fourth opposite parties who have been subsequently impleaded, who are consultant Orthopedic surgeon and consultant Pathologic of the first opposite party, in their common version contended that, against them there is no allegation and that they are not a necessary parties. Further, they have adopted the version filed by the first opposite party.<br /> <br /> 6. To prove the facts alleged in the complaint, the complainant has filed her affidavit and produced various documents. On the other hand, General Manager of the first opposite party has filed his affidavit and produced certain documents. We have heard the arguments of the advocates for the complainant and the opposite parties and perused the records. <br /> <br /> 7. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved medical negligence and deficiency in service on the part of the first opposite party hospital and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 8. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 9. Point no. 1:- Before proceeding to consider the evidence and the contentions of the parties, it is desirable to note the legal position with reference to the decisions of the Hon’ble Apex Court relied upon by the learned advocate for the opposite parties.<br /> 10. Advocate for the opposite parties relied on the ruling in Jacob Mathew Vs. State of Punjab and another reported in III (2005) CPJ 9 wherein the Hon’ble Apex Court has held that, while considering the negligence, three weighty considerations must be kept in mind by any Forum that negligence in context of medical profession necessarily calls for treatment with difference, difference between occupational negligence and professional negligence, standard to be applied to hold professional negligence, simple lack of care, error of judgement, accident is not proof of negligence, failure to use special or extraordinary precautions, cannot be standard for judging alleged negligence, res ipsa loquitur is only rule of evidence and averments in complaint, even if proved, do not make out a case of criminal rashness and case has to be considered on parameters of Bolam’s test. In Miss Soni KUmari Vs. Dr.Nagendra Naraian Bhagat reported in I (2003) CPJ 196 Hon’ble Bihar State Commission has held, burden of proof of negligence lies on the complainant. In Dr.C.P.Sreekumar Vs. S.Ramanujam reported in II (2009) CPJ 48, the Hon’ble Apex Court has observed that, too much suspicion about the negligence of attending doctors and frequent interference by courts would be a very danagerous proposition. Also, it is held that, proof of medical negligence lies largly on the claimant and this onus can be discharged by leading cogent evidence. It is the obligation of the complainant to provide the facta and probanda as well as the facta probantia. Merely because there is some divergence of opinion to as to the proper procedure to be adopted, it cannot be said with certainty that the attending doctor was dgrossly remiss in goiong for a particular line of treatment. The decision in Jackob Mathew case has been quoted in paragraph 20 of the judgement which reads thus,<br /> 48(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence become actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach”, and “resulting damage”.<br /> (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”<br /> So far concerned to the law laid down in the rulings cited supra, absolutely there is no dispute. However, keeping in mind the said legal position, we may proceed to consider the facts and the evidence of the case on hand.<br /> <br /> 11. So far concerned to wrong diagnosis of blood group of the complainant by the first opposite party hospital, is admitted. However, it is further submitted by the first opposite party hospital that, it is an unintentional technical error on the part of the employees and that lab staff inadvertently picked up the blood sample of another patient with identical name. But whether it was unintentional error or otherwise, the fact remains there was wrong diagnose of the blood group of the complainant. While considering the medical negligence, the intention play no role. Hence, on the ground that, there was no intention on the part of the first opposite party, it cannot escape from liability. Though, it is described as technical error, it has got it’s own importance. Even otherwise, as submitted, lab staff picked up blood sample of another patient with identical name, whether it was inadvertently or otherwise, certainly amounts to negligence. However, further the learned advocate submitted that on the wrong blood grouping of the complainant, no further treatment was given and hence, no harm prejudice or loss has been caused to the complainant. Admittedly, on the next day morning, surgery on the complainant was fixed. Whatever may be the reason, the complainant got discharged from the first opposite party hospital. In case, as submitted by the learned advocate for the complainant, if the complainant had continued the treatment in the first opposite party hospital itself, since she had sustained injuries in the motor accident, necessarily blood transfusion was to be done and on the basis of wrong diagnose of blood group that was done, life of the complainant was danger. Considering the entire facts, said statement cannot be brushed aside. Further more, Hon’ble National Commission in Chandigarh Clinical Laboratory Vs. Jagidish Cour, the ruling reported in IV (2007) CPJ 157 has held that, whether harm was caused to the patient are not on account of wrong blood test report is not a criteria. Medical negligence was held proved and compensation of Rs.25,000/- was awarded. Considering the observations of the Hon’ble National Commission in the said ruling, the contention of the opposite parties that, no harm was caused to the complainant on account of wrong blood grouping of complainant by the opposite party, is not a ground to hold that, there is no medical negligence on the part of the first opposite party hospital and that, the complainant is entitled to any compensation<br /> <br /> 12. Now, coming to consider the further contention of the complainant that, the first opposite party hospital did not remove the glass pieces in the head injury, also to a certain extent, is admitted. The medical records of the second opposite party hospital clearly establish that, the complainant approached it for further treatment and in the head injury, there were glass pieces, which have been removed. Presence of foreign particles in the head injury of the complainant is admitted by the opposite parties. However, the opposite parties contend that, after complainant met with motor accident, somebody brought her to the first opposite party hospital and there was profuse bleeding and it was to be arrested and hence, sutures were put. There is no dispute that, sutures were put in the first opposite party hospital. We do consider that, the complainant has alleged in the complaint and claimed that, because in the first opposite party hospital, glass pieces were not removed, she had to undergo second surgery. But, as pointed out, it is not established that in the first opposite party hospital first surgery was conducted. Irrespective of the fact as to, whether the allegation of the complainant that, because glass pieces were not removed, she had to undergo second operation is correct or authorise, the fact remains that, when the complainant was discharged, in the head injuries there were glass pieces, which have been removed in the second opposite party hospital.<br /> <br /> 13. Vehemently, the learned advocate for the opposite parties submitted that, to arrest the bleeding sutures were put and the foreign particles found in the head injuries were to be removed on the next day at the time of the operation that was fixed. But, here it is important to note that, at the end of paragraph 6 of the version, it is stated “immediately a conservative line of medical management was done for the wounds of the scalp and limbs which included suturing of the scalp wound after removing all foreign particles visible to the necked eye”. Thus, the opposite parties contend that, from the scalp wound, foreign particles which were visible to necked eye, were removed. But, further at the same time, from the contention of the opposite parties itself CT scan was done and so also, X-ray and when that was so, apart from the particles, which were visible to the necked eye, the opposite parties must have seen the glass pieces and hence, same could have been removed. Medical literature is placed on record to submit that, the glass pieces can be removed even up to two days etc. But, the fact remains that on the said date, the glass pieces were not removed from the head injury of the complainant, though, the opposite parties had notice of the same.<br /> <br /> 14. It is the argument of the learned advocate for the opposite party that, the complainant got discharged against the medical advice. Whether the complainant got discharged against the advice of the doctors or otherwise, is not so material, so far concerned to the negligence attributed by the complainant against the opposite parties. May be that, the complainant or her husband requested the opposite parties for discharge as the second opposite party is covered by the KSRTC empanelled list and that he was entitled for reimbursement of the charges. However, on the other hand, for the complainant, it is submitted, as noted above that, if at all, the complainant had continued further treatment in the first opposite party hospital and if there was blood transfusion on the basis of wrong blood grouping, the complainant could not have survived. <br /> <br /> 15. Considering the material on record referred to above, particularly certain admitted facts, we are of the considered opinion that, medical negligence on the part of the opposite parties in not removing the glass pieces from the head injury of the complainant has been proved. <br /> <br /> 16. The complainant has claimed compensation of Rs.5,00,000/-, but considering the facts and the circumstances, we feel it just to award only a sum of Rs.75,000/-.<br /> <br /> 17. Accordingly, our finding on the above point is partly in affirmative.<br /> 18. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The first opposite party is hereby directed to pay a sum of Rs.75,000/- to the complainant within 60 days from the date of this order, failing which, the amount shall carry interest at the rate of 10% p.a. till realization.<br /> 3. Further, first opposite party shall pay a sum of Rs.5,000/- towards cost of the proceedings to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 21st December 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br />