IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of November, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C. No.65/2010 (Filed on 06.02.2010)
Between:
Subaida Beevi,
Inchipparambil Veedu,
Perunna P.O.,
Changanassery Taluk,
Kottayam Dist. …. Complainant.
And:
1. The Director, Pushpagiri-
Institute of Medical Sciences &
Research Centre,
Pushpagiri Medical College-
Hospital, Thiruvalla.
2. Medical Superintendent,
-- do -- --do—
3. Personal Relation Officer,
--do-- --do—
4. Duty Doctor (05.02.2008 – 06.02.2008)
--do-- --do-- …. Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that on 05.02.2008 while at her dinner, fish spine stuck in her throat and she got admitted at the first opposite party hospital as I.P. No. 134494. As per the advice of the duty doctor, X-ray was taken and found fish spine in the throat and the doctor who had examined the complainant informed that the fish spine has to be removed in the morning on 06.02.2008 by an operation as her condition at that time is not fit for surgery due to the undigested food in her stomach. Another X-ray was also taken on 06.02.2008 before the surgery. But the fish spine is not seen in the X-ray and the discomfort of the complainant was also disappeared by the morning on 06.02.2008. This was also communicated by the complainant to the doctor. Inspite of this, the complainant was taken to the operation theatre and she had given anaesthesia unnecessarily. Thereafter when the complainant regains consciousness, she was discharged on 07.02.2008. The complainant was charged with ` 6,464 for anaesthesia, operation theatre charge, pulse oxymeter charge, linen charge etc. unnecessarily without conducting an operation. The above said acts of the opposite parties is an unfair trade practice and is against professional ethics and the complainant had sustained mental agony and physical discomforts due to unnecessary anaesthesia and the opposite parties are liable to pay the bill amount along with compensation of ` 25,000. The complainant had issued a lawyer’s notice on 19.03.2008 demanding the said amount. Though the notice was received by the opposite parties, first opposite party sent a reply stating false statements and they denied the complainant’s demand. But the opposite parties are liable to the complainant. Hence this complaint for the realization of ` 31,464 being the bill amount and compensation along with cost of this proceedings.
3. In this case, opposite parties entered appearance and filed their version. Opposite parties 1 to 3 filed a common version and the 4th opposite party filed a separate version.
4. The main contentions in the version of opposite parties 1 to 3 are as follows: According to the opposite parties 1 to 3, the complainant was admitted by Dr. John Xavier on 05.02.2008 at midnight with the history of foreign body (fish bone) while taking food. Immediate X-ray soft tissue neck lateral view was taken, showed impacted foreign body in the region of C5-C6 and since she had full meal, surgery was postponed to the next day as the patient had to be on empty stomach for 6-8 hours and also required pre-anaesthetic evaluation. X-ray chest, ECG, blood routine and urine were done. Repeat neck X-ray was advised in the morning prior to surgery. Repeat X-ray was suggestive of foreign body at the same site with prevertebral edema. As the patient was symptomatic, Dr. John Xavier fully explained the procedure and after obtaining informed consent and direct laryngoscopy and oesophagoscopy done on 06.02.2008 showed edema and ulceration at 15 cm. level from the upper incisor. However, there was no evidence of foreign body. The allegation that operation was conducted without the consent of the complainant is false as the complainant had given her consent. The allegation that opposite parties acted against professional ethics is also false as the procedures adopted by the opposite parties and the hospital bill issued is as per rules. With the above contentions, opposite parties 1 to 3 prays for the dismissal of the complaint.
5. The main contentions in the version of the 4th opposite party is as follows: According to the 4th opposite party, he was an employee of the first opposite party hospital at the time of the alleged incident. The complainant was admitted under Dr. Antony Joseph and the answering opposite party was only the duty doctor at the time of the admission of the complainant. The surgery and administration of anaesthesia was done by other doctors who are not made as parties to this proceedings. The 4th opposite party has never received any notice as alleged by the complainant. As per the hospital records, what all procedures done by the opposite parties are proper and necessary in the case of the complainant. With the above contentions, the 4th opposite party prays for the dismissal of the complaint against him as he had not committed any negligence against the complainant.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint is allowable or not?
7. Evidence of this complaint consists of the oral deposition of PW1 and DW1 based on their proof affidavits and Exts. A1 to A4 and B1 to B3 series. After closure of evidence, both sides were heard.
8. The Point: The complainant’s allegation is that she was admitted at the first opposite party hospital on 05.02.2008 for complaints of fish spine in her throat stuck during her dinner. On admission, an X-ray was taken and found fish spine seen in her throat. So she was advised for surgery on the next day morning i.e. on 06.02.2008. But the X-ray taken before the surgery, no fish spine in her throat and her discomforts were also disappeared by the morning on 06.02.2008. The complainant informed this matter to the doctors before the surgery. But inspite of this, the complainant was taken to the operation theatre and given anaesthesia and she was discharged on 07.02.2008 after she became conscious and she was charged with Rs. 6,464 as hospital bill in the name of anaesthesia, surgery and other pre-operative tests. According to the complainant, she was given unnecessary anaesthesia and they have not conducted any surgery to the complainant as claimed by the opposite parties. Because of the above said acts of the opposite parties, the complainant had sustained financial loss and mental agony and hence she prays for allowing the complaint.
9. In order to prove the case of the complainant, the complainant filed proof affidavit and 4 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A4. Ext. A1 is the discharge card dated 07.02.2008 issued from the first opposite party hospital in respect of the treatment of the complainant from 05.02.2008 to 07.02.2008. Ext. A2 is the medical bill dated 07.02.2008 for ` 6,464 issued by the first opposite party in connection with the treatment of the complainant. Ext. A3 is the advance deposit receipt dated 06.02.2008 for ` 2,000 issued by the first opposite party. Ext. A4 is the cash receipt dated 07.02.2008 for the payment of ` 4,464 by the complainant issued by the first opposite party.
10. On the other hand, opposite parties’ contention is that the complainant was admitted on 05.02.2008 at midnight for complaints of foreign body (fish bone) in her throat while taking food. For the removal of the said foreign body, surgery was required and the surgery was fixed for the next morning as the patient was 60 years and had full meal and pre-anaesthetic evaluation was also required. X-ray taken in the morning, prior to the surgery also shown foreign body in the same site. As the patient was symptomatic, Dr. John Xavier fully explained the procedure and after obtaining informed consent and after conducting pre-anaesthetic evaluation, the complainant was subjected for surgery. But in the surgery, the foreign body was not found in her throat. According to the opposite parties, there is a chance of foreign body slipping down in the stomach during administration of relaxants for general anaesthesia. Laryngoscopy and oesophagoscopy done on 06.02.2008 shoed edema and ulceration in the throat which is indicative of impacted foreign body which might have been passed into the stomach following relaxation at the time of intubation. No patient can be shifted to the operation threatre without full consent and any procedure carried out in the operation threatre under anaesthesia and other procedures are chargeable as per the hospital rules. Therefore, they argued that they have not done anything against professional ethics and prays for the dismissal of the complaint.
11. In order to prove the contentions of the opposite parties, Dr. Antony Joseph, Prof. of ENT Department of the first opposite party hospital filed proof affidavit along with medical records and X-rays in connection with the treatment of the complainant. On the basis of the proof affidavit, he was examined as DW1 and the documents produced were marked as Exts. B1 to B3 series. Ext. B1 is the Outpatient records and Ext. B2 is the Inpatient records in connection with the treatment of the complainant. Ext. B3 series are the X-rays (4 in number) of the throat of the complainant taken by the opposite parties before the surgery.
12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute regarding the admission and treatment of the complainant. The only question to be decided is whether there was fish spine in the throat of the complaint when she was taken to the operation theatre for surgery. According to the complainant, the fish spine was disappeared before she was taken to the operation theatre and she had no discomforts at that time and this was intimated to the doctors also. But they have ignored this and unnecessarily given anaesthesia and she was charged with unnecessary bill without conducting any surgery. According to the opposite parties, the fish spine was in the throat of the complainant till the surgery. But it was not found during the surgery and the fish spine might have been passed into the stomach due to the administration of relaxants and due to the intubation for laryngoscopy and oesophagoscopy. X-rays taken before the surgery also indicates the presence of foreign body in the throat of the complainant.
13. But as per Ext. B2 inpatient records, opposite parties admitted that they have not found the foreign body in the throat of the complainant during the surgery. But their contention is that the foreign body was in the throat of the complainant till the surgery. In order to prove this contention, opposite parties are relying on Ext. B3 series X-rays and the informed written consent of the complainant which is attached in the file of Ext. B2 inpatient records. But on a perusal of the informed consent and Ext. B3 series X-rays, it is noticed that the time of executing the informed consent and the time of taking the X-rays are not seen recorded. Since the time is not recorded in the X-rays and the informed consent, it cannot be said that the informed consent was obtained immediately before the surgery and the X-ray dated 06.02.2008 was taken immediately before the surgery. It might have been obtained much earlier. So we are not inclined to accept the contentions of the opposite parties based on the informed consent and the X-rays. Further, the complainant had specific contention that she had told the doctors that she had no discomforts in the morning on 06.02.2008 and she came to know from the X-ray personals that the foreign body is not seen in the X-ray taken prior to the surgery. These facts were also deposed by the complainant before this Forum. The relevant portion of the deposition of PW1/complainant is as follows: “AUvanäv sNbvXijw ]ntäZnhkw ]cntim[\ \S¯m\pÅ k½X]{Xw H¸n«p sImSp¯p. apÅp\o¡w sN¿m\mhiyamb NnInÕ¡pthn anesthesia \ÂInbncp¶p. witness adds cmhnse Bbt¸mtg¡pw Fsâ AkzkvXXIÄ amdnbncp¶p. B hnhcw Rm³ ]dbpIbpw sNbvXp. IqSmsX x-ray FSp¡phm³ sImpt]mbn. X-rayþbn apÅp ImWp¶nsöpw AhÀ ]dªp. CXn\ptijamWv Fs¶ Xntbädn sImpt]mbXpw anesthesia \ÂInbXpw”.
14. With regard to the above said deposition of PW1, opposite parties have no case that she had not told these aspects to the opposite parties before the surgery. So we don’t find any reason to dis-believe the above said deposition of PW1. Moreover, opposite parties have no case of any animosity of the complainant against opposite parties. In the circumstances, we have no other alternative than to allow this complaint against the opposite parties with modifications. Though the complainant claims the entire bill amount, she is not entitled to get the entire bill amount and she is entitled to get the amounts charged in the name of surgery and related procedures as the said charges are made without any justification. Since opposite parties 2 to 4 are employees of the first opposite party hospital and hence first opposite party is vicariously liable to the complainant.
15. In the result, this complaint is allowed, thereby the first opposite party is directed to return the charges collected under the heads anaesthesia, surgicals, operation and theatre charge i.e. ` 5,200 (Rupees Five thousand two hundred only) along with compensation of ` 2,000 (Rupees Two thousand only) and cost of ` 800 (Rupees Eight hundred only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 26th day of November, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Subaida Beevi.
Exhibits marked on the side of the complainant:
A1 : Discharge card dated 07.02.2008 issued from the first opposite
party hospital in respect of the treatment of the complainant from
05.02.2008 to 07.02.2008.
A2 : Medical bill dated 07.02.2008 for ` 6,464 issued by the first
opposite party in connection with the treatment of the
complainant.
A3 : Advance deposit receipt dated 06.02.2008 for ` 2,000 issued by
the first opposite party.
A4 : Cash receipt dated 07.02.2008 for payment of ` 4,464 issued by the
Opposite parties to the complainant.
Witness examined on the side of the opposite parties:
DW1 : Dr. Antony Joseph.
Exhibits marked on the side of the opposite parties:
B1 : Outpatient records in connection with the treatment of the
complainant.
B2 : Inpatient records in connection with the treatment of the
complainant.
B3 series : X-rays (4 in number) of the throat of the complainant.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Subaida Beevi, Inchipparambil Veedu, Perunna P.O.,
Changanassery Taluk, Kottayam Dist. (2) The Director, Pushpagiri Institute of Medical Sciences &
Research Centre, Pushpagiri Medical College Hospital,
Thiruvalla.
(3) The Medical Superintendent, --do-- --do--
(4) The Stock File.
