Smt. C.S. Sulekha Beevi, President,

1. The case of the complainant is that on seeing an advertisement of Al-Abeer Hospital stating that there would be free check up and key hole surgery at the hospital on all Sundays from 13-5-2007. to 29-7-2007, complainant approached first opposite party on 13-5-2007 for surgery of hernia disease suffered by him. He states that first opposite party doctor examined and selected him for keyhole surgery and was send to meet second opposite party. That he was made to believe by first and second opposite parties that third opposite party doctor who is an expert would conduct the key hole surgery. Complainant avers that, twenty years back he had undergone an open surgery for dislocation of shoulder. After that surgery he had developed allergy from the suture thread upon the skin over the surgery wound. That doctors, had then advised him never to undergo open surgery again. It is his case that he approached opposite party hospital believing that only key hole surgery would be done at opposite party hospital and that too at concessional rate of Rs.4,000/-. It is stated that he had informed about the allergy of suture thread to opposite party No.1 and opposite party No.2 on 13-5-2007 itself. He got admitted in the hospital on 20-5-2007 believing that key hole surgery would be done. It is further averred that before losing consciousness and before beginning the surgery he had told second and third opposite parties not to do open surgery and that second and third opposite parties had assured that they would do only key hole surgery. Complainant is aggrieved that, to the contrary, opposite parties conducted hernioplasty which is an open surgery and not key hole surgery. The wound was sutured and the next day itself he developed oedema over the skin and infection due to allergy of the suture thread. He was discharged on 23-5-2007. His condition worsened after discharge and he had to take further treatment for a long time under opposite parties. Thereafter he underwent treatment under Dr. K.V.Shanmughadas. For this he incurred expenses of Rs.12,000/-. That he is totally disabled to do any work and has to continue treatment. That all this happened due to the deficiency in service on the part of opposite parties. It is also averred that he had opted for keyhole surgery on the representations made by opposite parties that he would be discharged on the next day and that he would be able to go for work the next day itself. That opposite parties had made him believe that key hole surgery at concessional rate of Rs.4,000/- will be done, against it's actual cost of Rs.10,000/-. But they conducted open surgery and collected Rs.9,000/- which is high. Complainant had to spend Rs.6,000/- towards other expenses. Complainant issued a notice to opposite parties through his lawyer on 25-9-2007 to which opposite parties replied stating false contentions. Hence this complaint praying for Rs.25,000/- towards mental agony, Rs.25,000/- for treatment expenses and Rs.2,00,000/- as compensation for being disabled to do any work.

2. First opposite party filed version through his power of attorney holder. The allegations that complainant was made to believe that only key hole surgery would be done and that opposite parties offered to do the surgery at concessional rate of Rs.4,000/- is specifically denied. The other allegations that complainant developed infection and allergy from the suture thread are also denied. The averments that complainant had to take further treatment under Dr. K.V. Shanmughadas, had to continue treatment and is totally disabled due to allergy etc. are denied as false and incorrect. Opposite party submits that there was no offer to do the surgery for rs.4,000/-. That normal charge for surgery is Rs.15,000/-. That the surgeons who attended the complainant are fully qualified and have acted bonafidely with abundant care and caution. Dr.Hafis Mohammed M.S. M.ch.FRCs was also consulted in this case. The post operative period was uneventful. The only caution given by complainant was that he was allergic to sulpha. That opposite parties have not used this drug. The operation was 100% successful. Opposite parties had no need to misrepresent, defraud, cheat, mislead or cause any loss or hardships to the complainant. That there is no deficiency in service and that complainant is not entitled to any reliefs.

3. Second and third opposite parties filed a combined version. The averments and contentions raised in the version filed by first opposite party have been adopted and reiterated by them.

4. Evidence consists of the oral evidence of complainant who was examined as PW1. Exts.A1 to A11 marked for him. First opposite party was examined as DW1. No documents marked for opposite parties. Ext.X1 is the case sheet.

5. Points for consideration:-

(i) Whether opposite parties have committed any deficiency in service.

(ii) If so, reliefs and costs.

6. Point (i):-

The allegation of medical deficiency levelled against opposite parties can be summed up as under:

(i) On seeing an advertisement of Al-Abeer hospital that key hole surgery will be conducted at concessional rate, complainant approached the hospital for surgery of his problem of hernia. He is aggrieved that though opposite parties made him believe that only key hole surgery at concessional rate of Rs.4,000/- will be done, opposite parties conducted open surgery and collected Rs.9,000/-.

(ii) Complainant had informed opposite parties that he had allergy to suture thread previously and had warned not to conduct open surgery. Against this opposite parties conducted open surgery and sutured the wound. The next day itself he developed allergy from the suture thread and had to undergo treatment under opposite parties for a long time. Since his condition was not cured he had to avail treatment under Dr. K.V. Shanmughadas. He has to still continue treatment and is totally disabled from doing any work. He had to incur huge expense.

7. Denying the allegations of medical negligence, the case put forward by opposite parties through their pleadings, evidence and submissions is that complainant had approached opposite parties with the problem of hernia. He wanted laproscopic surgery but was not willing for the concessional rate of Rs.10,000/-. There was no misrepresentation by the advertisement and that there was no offer to do laproscopic surgery for Rs.4,000/-. After explaining tot he patient and after taking his consent open surgery-hernioplasty with mesh was done. The operation was 100% successful. The post operative period was uneventful and complainant was discharged the third day. He had no allergy to the suture thread.

8. The genises of the allegations is the advertisement by opposite parties which according to the complainant attracted him to opposite party hospital. The advertisement is produced as Ext.A1. It is the case of complainant that in the advertisement it is stated that key hole surgery will be done at concessional rate for selected persons and that there is nothing in the advertisement stating that open surgery will be done at opposite party hospital. Against this it was submitted on the side of opposite parties that though the advertisement is regarding key whole surgery there is no offer to do the key hole surgery at Rs.4,000/-. DW1 who admitted Ext.A1 to be an advertisement of his hospital deposed that Ext.A1 was an advertisement intending to make people aware that laproscopic surgery is available at his hospital. The evidence of DW1 in this regard is as under:

"To the question that in Ext.A1 I have mentioned only key hole surgery I would say that it is correct and I have not mentioned about open surgery in Ext.A1 advertisement. This is because in our area there are no hospitals doing laproscopic surgery. The advertisement intended to make the people aware that laproscopic surgery is available at Al-Abeer. All people usually know that all hospitals having operation theatre will conduct open surgery. This need not be specifically mentioned. Unless a hospital is equipped with open surgery no hospital can start a laproscopic surgery."

On perusal of Ext.A1 we can see that it does not mention the rate of any surgery. It simply states that key hole surgery at concessional rate will be conducted for selected patients. From Ext.A1 and the evidence of DW1 explaining the intention of the advertisement we are unable to accept the contention of complainant that the advertisement misled him by not mentioning anything about open surgery.

9. The second allegation is that opposite parties conducted open surgery against knowledge and consent of complainant. On scrutiny of Ext.X1 case sheet the diagnosis noted on 13-5-2007 reads as follows:

"13-5-2007 Direct Inguinal Hernia Left.

Patient wanted Laproscopic Surgery.

Patient was explained by Dr. Abdul Rehman and Dr.Hafis Mohammed that Laproscopic Herniorraphy was not feasible at very low cost.

He was explained open surgery with Mesh. Patient said he will think and discuss with his family."

20-5-2007 "Patient is willing for hernioplasty with Mesh."

This is followed by pre-operative instructions.

10. Ext.X1 case records substantiates the case put forward by opposite party that though complainant wanted laproscopic surgery this was not done, and open surgery was done because laproscopic surgery was not feasible at very low cost as looked forward by the complainant. DW1 has deposed that the cost of laproscopic hernia surgery is about Rs.20,000/- to Rs.25,000/- and that the rate of open surgery is about Rs.10,000/- to Rs.12,000/-. It is the further case of complainant that opposite parties had selected him for conduct of key hole surgery at concessional rate of Rs.4,000/-. In the box he stated that he was given a document for being selected and that he had given back this document to opposite parties. Neither has he produced any such document nor has he averred this in the complaint or affidavit. The evidence of PW1 in this regard is as under:

"Key hole surgery-ക്ക് 20-ാം തീയതി admit ചെയ്യാന്‍ വേണ്ടി രേഖ തന്നിരുന്നു. രേഖ തന്ന വിവരം ഹരജി കൊടുക്കുംപോള്‍ അറിയാമായിരുന്നു. അത് എതൃകക്ഷികള്‍ക്ക് തിരിച്ചു കൊടുത്തു എന്നും അറിയാമായിരുന്നു. ആ സംഗതി ഈ affidavit കൊടുക്കുംപോഴും അറിയാം. ഈ കാര്യം വക്കീലിനോട് പറഞ്ഞിട്ടില്ല."

11. DW1 has categorically stated that there was no advertisement or selection to conduct keyhole surgery for Rs.4,000/-. Counsel for opposite party relied upon Ext.X1(a) and submitted that the open surgery was done after properly explaining to the patient and after obtaining his consent. Ext.X1(a) is the consent form contained in Ext.X1 case sheet. The consent form is seen signed by the complainant and his wife. Complainant has admitted these signatures. It is his case that he has not read the contents and that he was made to sign at the operation theatre. Ext.X1(a) is in regional language (malayalam). The evidence of PW1 in this regard is as under:

"എനിക്ക്ഇംഗ്ളീഷും മലയാളവും അറിയാം. ഇപ്പോള്‍ കാണിച്ചത് Al-Abeer hospital-ലെ case sheet ആണ്. Marked as X1. ഈ case sheet-ലെ X1(a) എന്‍െറ consent form ആണ്. അതില്‍ കാണുന്നത് എന്‍െറ ഒപ്പാണ്. ബന്ധുവായി കാണിച്ചിട്ടുളളത് ലീന എന്‍െറ ഭാര്യയാണ്. എന്‍െറ ഭാര്യയും ഒപ്പിട്ടിട്ടുണ്ട്. എന്‍െറ ഭാര്യക്കും എഴുതാനും വായിക്കാനും അറിയാം. ഇത് ഞാന്‍ operation-ന്നു മുന്‍പ് ഒപ്പിട്ടു കൊടുത്ത രേഖയാണ്. Ext.X1(a) ഞാന്‍ ഒപ്പിട്ടിട്ടുളളത് അറിയാതെയാണ്. ഒപ്പിട്ടു കൊടുക്കുംപോള്‍ Ext.X1(a)-യില്‍ എഴുതിയിട്ടുണ്ടായിരുന്നു. ഒറ്റ നോട്ടത്തില്‍ വായിച്ചു തീര്‍ക്കാവുന്ന മൂന്നു വാചകങ്ങളെ Ext.X1(a)-യില്‍ ഉളളൂ എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. വായിച്ചു നോക്കുവാന്‍ തടസ്സമുണ്ടായിരുന്നില്ല."

12. Taking into consideration that both complainant and his wife has signed in Ext.X1(a) and also the fact that the complainant is a literate man we are unable to give credit to his contention that he signed Ext.X1(a) without knowing or reading its' contents. Further as per records the surgery was done only under spinal anaesthesia and not under general anaesthesia. So his averment that even before he was put unconscious prior to surgery, he had told opposite parties about his history of allergy and not to conduct open surgery are false and cuts the veracity of his contention. The evidence of PW1 together with the admitted signatures in Ext.X1(a) proves and establishes that complainant had given proper and sufficient consent for the treatment and open surgery done by opposite parties.

13. Another argument raised by the learned counsel for complainant was that Ext.X1 case records are fabricated so as to suit the case of opposite party after receiving the copy of the complaint. The counsel pointed out that the date on the upper most right corner of the first page in Ext.X1 is 11-6-2007 and is inconsistent with the first entry in this page which is 13-5-2007. When this inconsistency was confronted to DW1 during his cross examination, he stated that he is not able to explain the difference in date because the case sheet was written by third opposite party. We have given our anxious consideration to this argument and perused the records and documents carefully. It is true that a date as 11-6-2007 is seen computer printed on the Head Note along with the registration number of the patient and his name in the first page. But the date of the first entry in this page is hand written by the doctor as 13-5-2007. Undisputedly complainant first consulted opposite party on 13-5-2007. On perusal of documents we see that there are mistakes in dates on Ext.A6 discharge card issued to the patient also. According to complainant the surgery was on 20-5-2007 and he was discharged on 23-5-2007. But the date of discharge noted in Ext.A6 discharge card issued to complainant is 22-7-2007. Complainant has no grievance about this difference in date. It can be presumed that these were bonafide mistakes. Other than the difference in a date there is nothing that arouses suspicion that Ext.X1 was concocted after receiving copy of complaint. The date even if by mistake noted in Ext.X1 is 11-6-2007, whereas the complainant has issued Ext.A2 lawyer notice on 25-9-2007. So the argument that opposite party has concocted Ext.X1 case sheet to suit their case is without any force.

14. The main allegation of negligence raised by complainant is that he developed allergy from the suture thread after the open surgery. It is his case that he had to undergo prolonged treatment under opposite party for allergy and thereafter had to take treatment under Dr.K.V. Shanmughadas for which he incurred expenses over Rs.12,000/-. It is also stated that he is totally disabled to do any work due to the allergy.

15. Per Contra, opposite parties have vehemently denied that complainant had any allergy to the suture thread after surgery. It is their case that the operation was 100% successful and he was discharged as fit.

16. Though the complainant contends that he suffered much due to the allergy and had to undergo treatment under opposite parties for long duration and had to take treatment under another doctor we have to say that apart from his affirmations there is no materials placed before us evidencing that he had complaints of allergy or that he was treated for allergy. It is not in dispute that he was discharged on third day. On this day Ext.X1 case records show "Dressing changed wound healthy and dry. No oedema. Adviced urine examination and Review at SOPD." The patient was again seen on 28-5-2007 and it is seen noted as "Patient is ambulatory, Afebrile, Taking regular diet, Dressing changed. Wound dry and healthy, No induration, No discharge, Next dressing after 3 days." On 31-5-2007 Ext.A6 discharge card as well as Ext.X1 shows as "All sutures removed. Wound is dry and healthy." There is no document to show that complainant had undergone prolonged treatment under opposite party for allergy after the surgery. Ext.A9 is the document relied by complainant to establish that he had to undertake treatment under another doctor. This is a prescription issued to him by Dr.K.V.Shanmughadas (M.B.B.S. M.S.M.ch., Consultant Urologist and Andrologist) dated, 25-7-2007. The relevant portion of Ext.A9 is reproduced as under:

"Complaint/of Pain left inguinal region

History/of Left Hernioplasty – two months back.

On/examination – wound Healed well. Mild tenderness."

17. The next consultations to this doctor is January, 2008 and 09-4-2008. Thereafter there are no documents of treatment at all. Even in these documents it is not noted that he had any complaints of allergy. It is not brought to our notice from any of the documents that he has been prescribed with drugs for treatment for allergy. It has also to be stated that after discharge from opposite party hospital there is no records showing in-patient treatment. The only document is Ext.A9 prescription. Interestingly the case of the complainant is that he is totally disabled from doing any work due to the allergy. But he has not even averred as to what was the work he was doing. We have no doubt to conclude that complainant has miserably failed to establish that he suffered from allergy of suture thread after conduct of open surgery by opposite parties.

18. It was then urged on behalf of complainant that as it is admitted by opposite party that complainant had informed that he was allergic to suture material and the conduct of open surgery even after this warning of complainant is gross negligence on the part of opposite parties. It is correct that DW1 who graced the box has deposed that complainant had told that he had allergy 20 years back from suture material. The explanation offered to this by DW1 is that complainant had not mentioned which type of suture material had caused him allergy and that now-a-days there are suture materials which are not allergic at all. Complainant has not produced any document to show that he had suffered any such allergy 20 years back as contended by him. Even if we take into account that complainant had warned opposite parties about such allergy the vital question is whether such act of opposite parties amounted to negligence. The essential components of negligence are three: (i) 'duty', 'breach' and 'resulting damage'. Even if we assume that the open surgery done against the warning of complainant is breach of duty to care but there is no resulting damage caused. The provisions of Sec.14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any must flow from negligence. There is no iota of evidence to show that complainant suffered from allergy after surgery. The alleged act or omission will amount to negligence only if there is resulting injury or damage. The act is only a risk/decision made by doctor in good faith to alleviate the patient from the suffering of disease being fully confident that there would be no allergy from the suture material. It is also stated by DW1 that complainant had informed that he was allergic to sulfa drugs. It is seen noted on top of Ext.X1 very conspicuously, 'allergic to sulfa'. Opposite party deposed that they have taken this warning and have not administered any sulfa drugs. Complainant has no case that the disease (hernia) for which he took treatment under opposite party is not cured. As per Ext.X1(a) it is proved that the surgery was done with his consent. Apart from all this no expert evidence has been adduced by complainant to prove the medical negligence alleged by him. From the totality of facts, circumstances, evidence and materials placed before us we do not find any medical deficiency on the part of opposite parties. Another grievance raised on the side of complainant is that the amount (Rs.9,000/-) collected by opposite parties for open surgery is excess. On perusal of Ext.A11 bills it is seen that complainant had to pay Rs.3,178/- towards various items and medicines purchased on the date of surgery. Again he had to pay Rs.4,000/- towards procedure charges. His disappointment after opting for a less costly surgery is understandable. But it is settled position of law that reasonableness of price charged for services rendered or price fixation is not a consumer dispute. His allegations are imaginary and highly misplaced.

19. From the above discussions we are able to conclude that complainant has failed to establish a case against opposite parties. We find opposite parties not deficient in service.

20. In the result we dismiss the complaint. There is no order as to costs.

Dated this 20th day of October, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : K.K. Narayanan, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A11

Ext.A1 : Advertisement.

Ext.A2 : Registered lawyer notice with A/D issued by complainant's counsel

to opposite parties.

Ext.A3series : Postal acknowledgement cards (3 Nos.) from opposite parties

to complainant's counsel.

Ext.A4 : Registered reply notice dated, 26-9-2007 from opposite parties

advocate to complainant's advocate.

Ext.A5 : Registration card No.0708/0481476 dated, 28-5-2007 given by

opposite party to complainant.

Ext.A6 : Discharge card dated, 22-7-2007 from opposite party to complainant.

Ext.A7series : Prescriptions (7 Nos.) from opposite party to complainant.

Ext.A8 : Prescription dated, 10-6-2007 from opposite party to complainant.

Ext.A9 : Prescription dated, 25-7-2007 issued by Dr.K.V.Shanmughadas to complainant.

Ext.A10 : Test Result dated, 01-8-2007 from Gulf Medical Laboratory to complainant.

Ext.A11series : Computer print bills (16 Nos.) for Rs.9,764/- from opposite party to complainant.

Witness examined on the side of the opposite parties : DW1

DW1 : Abdurahiman Ambadi, Partner and Director of opposite party hospital.

Documents marked on the side of the opposite parties : Nil

Third party documents marked : Ext.X1

Ext.X1 : Case sheets.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER