1.Case of the complainant

                   From 03/08/2014 to 06/8/2014, complainant was under the medical consultation and medical care of opposite party No.1 Dr. K.V. Gopinathan.M.S. at opposite party No.2 Hospital, EMS Memorial Co-operative Hospital and Research Centre, Perintalmanana.  Opposite party No.1, who is practicing as a General & Laparoscopic Surgeon at General & Laparoscopic Surgery Department of opposite party No.2 hospital. Complainant had been undergone Bilateral Laparoscopic Hernia repair under GA on 04/08/2014 and was   discharged on 06/08/2014 with an advice to review after 7days. 

2.       Complainant had suffered some pain in the inguinal region and frequent fever which had been informed to the first opposite party doctor.  The opposite party No.1 doctor has a professional obligation to extend his services to due expertise for protecting the life of the complainant, but he had not considered it as a serious one  and  he had not brought to his task  a reasonable  degree of skill and knowledge  and he has not exercised a reasonable  degree of care  what the law requires.   Opposite party No.1 advised the complainant to take rest.

3.        But later the condition of the complainant was worst and pathetic and he had been taken to Alshifa hospital, Perintalmanana on 12/11/2014.  It was diagnosed that there is post operative mesh hypersensitivity and diabetes mellitus (Detected recently). Thereafter complainant was under the care and consultation of Dr. Muhammed Sajid and he had done inguinal exploration under SA and Mesh and drainage of fluid from retroperitoneal space was removed.  There were plenty of fluid in the retroperitoneal space and he was discharged from the hospital on 19/11/2014. 

4.      The improper medication and treatment done by 1^st opposite party, has caused for  the  above  suffering  to  complainant  and  it  was  only  due  to the negligence or

deficiency of service of the doctor.  Hence the 2^nd opposite party is vicariously liable

for the acts of 1^st opposite party. 

 5.        Thereafter on 3/10/2015,  complainant had sent lawyer notice to  opposite party No.1 through his counsel Adv. M.T.A Salam, Perintalmanna  demanding to pay   compensation of Rs.50,000/- being the medical  expenses  incurred to the complainant for the  treatment and  Rs. 50,000/- towards the damage and compensation for the loss and  mental agonies  suffered by  complainant  due to the negligence and deficiency of service  of 1^st opposite party within 10 days of service of notice.  But opposite parties had denied the allegations in the notice with untenable contentions. Hence complainant is forced to file this complaint for the redressal of grievance before this Commission. The 2^nd opposite party,  being the employer  and responsible for the  negligent acts of  1^st opposite party  and is  vicariously liable  for the  act of 1^st  opposite party. The opposite parties No.1 and 2 are jointly and severally liable to pay compensation of Rs. 1,00,000/- to complainant. 

6.            On admission of the complaint notice was issued to the opposite parties and notice served on them and they entered appearance through their counsels and filed version and affidavit. 

7.         In their version, opposite party No.1 stated that complaint is not maintainable  either in law or on facts  and  it is  frivolous, vexatious and devoid of truth.   They again stated that the complaint is barred by limitation and liable to be dismissed in limine on that ground.  Complainant  underwent treatment in the opposite party No.2 hospital in the year 2014  and the date of surgery on 04/08/2014 and the present complaint filed in the year 2017  alleging negligence and deficiency in service  in respect of the said treatment is  hopelessly  barred by  limitation  and  hence  the issue of maintainability  of the complaint  may be tried as a  preliminary issue.

8.       The complainant consulted the first opposite party in the outpatient department of 2^nd opposite party hospital on 29/07/2014 with complaint of  bilateral recurrent direct  inguinal hernia.    He had a history of previous hernia repair 25 years back.  As per clinical history, he was not having diabetic mellitus or hypertension.   On the basis of present complaint, detailed clinical examination was conducted and he was advised  surgical repair  and advised admission to the hospital.  

9.        On 03/08/2014 complainant got admitted to the 2^nd  opposite party hospital  and underwent necessary pre-operative investigations and pre-anaesthetic check up and found fit for surgery.  The 1^st opposite party discussed with the complainant and his bystanders about the pros and cons of the laparoscopic hernia repair under general anaesthesia and the risk factors involved in the procedure.  After fully aware of surgical procedure as well as risk factors involved in surgery, the complainant consented for surgery. Under all aseptic care and precautions the 1^st opposite party conducted laparoscopic bilateral hernia repair on 4/08/2014 through Total Extra Peritoneal (TEP) approach.  Intra operative and post operative periods were uneventful  and the complainant was discharged on  06/08/2014 with post operative instructions  and prescribed  proper antibiotics  and analgesics  and advised review  after seven days.  Complainant came up for review in the outpatient department on 12/08/2014 and he had complained  mild pain and fever.  On examination  he did not show  any signs of infection  and there was no specific  reason for  pain  and he was advised symptomatic treatment with antibiotics, analgesics  and  antipyretics for 5 days and  asked to report  if there was  aggression of symptom.

10.      The complainant again reported for review on 16/09/2014 with complaint of mild pain at surgery site without fever.   He was advised USG of inguinal which  are showed minimal fluid collection in the inguinal region  which was not significant.  He was advised to take a course of antibiotics for seven days and review thereafter.  But the complainant did not turn up for review and lost further follow up. The surgical procedure and  medical measures taken by the 1^stopposite party in the  management of the complainant was  in strict regard  to standard and  accepted medical protocol   and there was no negligence  or deficiency  in service  on his  part  and hence  not liable to compensate the complainant.

11.         Opposite party No.1 again stated that the allegation of the complainant that 1^st opposite party did not seriously consider the complaint of pain and fever and failed to exercise reasonable degree of skill and care is baseless and hence denied.  The 1^st opposite party had conducted proper examination and considered the reported complaints and there were no signs of infection. He was prescribed antibiotics, analgesics and antipyretics as per symptoms and asked to report immediately in case of aggression of symptoms.  The complainant reported after one month and he was further investigated with USG of inguinal and the finding showed minimal fluid collection only which is a reported common clinical manifestation after inguinal hernia repair.  On the basis of well justified clinical findings and USG finding he did not develop any complication other than minimal collection of fluid. The minimal fluid in inguinal area will usually resolve  after 4 -6 weeks  and  further intervention is  indicated  only if  the same is  not absorbed by  itself  within one month. 

12.       The treatment of the complainant at Al-shifa hospital are  not pertaining to the   knowledge of 1^st opposite party and hence not admitted. The inguinal exploration allegedly done at Al-shifa hospital is not necessitated by any act or omission on the part of the 1^st opposite party.   Fluid collection in inguinal area is a reported common complication seen after laparoscopic hernia repair and the incidence ranges from 5 - 25 % cases. It usually resolves 4 - 6 weeks and as a part of its management, conservative line through medication is preferred initially.  Needle aspiration of fluid (Seroma) at the first instance is not recommended as it may introduce infection and cause its recurrence and inguinal exploration is recommended only if fluid is not absorbed within one month in spite of conservative management.  Hence minimal fluid collection developed in the complainant’s case was not caused due to any negligence or carelessness on the part of  1^st  opposite party. 

13.        They again stated that  complaint of improper medication and treatment by 1^st opposite party has caused sufferings to the complainant is highly ill motivated and denied by opposite party No.1.  The statement that the complainant suffered huge financial burden of about Rs. 50,000/- as medical expense by negligence and deficiency in service is baseless and denied by opposite party No.1. The statement regarding mental agony and loss is allegedly caused to the complainant is for getting undue financial gain and denied by opposite party No.1. Opposite party No.1 is a Senior consultant surgeon specialised in General & Laparoscopic surgery with qualification of MBBS,MS and special training in Laparoscopic surgery and experience of 30 years in respective field  with an unblemished service record.   Hence opposite party No.1 is denied all the allegations and averments pertaining to first opposite party which are  not expressly admitted hereunder are false. 

14.         Opposite party No.2  in their version  stated that  complainant has not made  any  specific allegations against them  in their complaint  or in the chief affidavit. Vicarious liability  is imposed against  this opposite party.  There is no employer and servant relationship between the opposite parties. The first opposite party is working on contract basis. Ext. B1 & B2 documents produced by opposite party No.2  shows that  complainant consulted opposite party No.1 on 29/07/2014 with the complaint of  old hernia repair  done about 25 years back.  Complainant admitted  in opposite party hospital on 03/08/2014 B/L lap hernia repair under GA and opposite party No.1 convinced  about the pros and cons  and the risk  factors in the procedure with complainant and bystanders and he had given  a written consent  for the same and undergone laparoscopic  bilateral  hernia repair  on 4/08/2014.  He was discharged on 6/08/2014. But complainant wilfully failed to attend the opposite party No.1 doctor for review as he advised.  Hence there is no negligence or deficiency of service in the treatment of care given to complainant. There is no negligence from the part of doctors, nursing staff and Para medical staffs of opposite party No.2.  The above complaint is hit by 24 A of the Consumer Protection Act and the complaint is liable to be dismissed on that ground alone. 

15.    In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext.A1 to A11 series. Ext.A1 is the  draft  copy of discharge summary MRD 163146 dated 6/08/2014 received by complainant  from  opposite party No.2 hospital, Ext.A2 is the report of  USG abdomen  dated 16/09/2014 given  to complainant from  the Department of Radiology and Imaging  of EMS Memorial Co-operative Hospital and Research Centre, Ext. A3 is the  original discharge summary MRD 205697 dated 19/11/2014  from Al-shifa hospital private limited Pertintalmanna to the complainant,  Ext.A4 is the discharge bill  No. IPF/DISCH/14/9289 dated 19/11/2014 given  to complainant from Al-shifa Hospital, Perintalmanna, Ext. A5 is the  copy of lawyer notice with postal receipt sent to the first opposite party by complainant’s Advocate., Ext. A6 is the Acknowledgement card  signed by first opposite party, Ext.A7  is the copy of lawyer notice with postal receipt  sent to the second opposite party  by complainant’s Advocate, Ext. A8 is  the acknowledgement card signed by the second opposite party, Ext.A9 is the  reply notice  sent by  first opposite party  to complainant’s advocate. Ext. A10 is the reply notice sent by second opposite party to complainant’s advocate, Ext. A11 series (13 Nos.)  are the OP ticket  and pharmacy bills  showing  the purchase of medicine  during  complainant’s visit  at Al-shifa hospital  for  review on various dates. Thereafter complainant is examined by opposite parties and  he is examined as PW1.

16.       There after opposite party No1 and 2 filed affidavits and documents. Opposite party No.1 filed affidavit on 06/07/2018 and they have not  filed any documents.  Opposite party No.2 filed affidavit and documents which are marked as Ext. B1 and B2. Ext. B1 is the photocopies of In-patient record of complainant which are kept in the custody of opposite party No.2 hospital (Original verified by the Commission).  Ext.B2 is the photocopies of Out-patient  record of complainant  which are kept in the custody of opposite party No.2 hospital (Original verified by the Commission). There after opposite party No.1 Dr. Gopinath was cross examined by the complainant as DW1. 

17.      Perused the affidavit and documents of both complainant and opposite parties. Hence the following points arise for consideration:-

1. Whether the complaint is hit by the limitation provision provided in Consumer Protection Act 1986 & 2019.
2. Whether there is any deficiency of service and unfair trade practice on the part of   opposite parties.
3. Relief and cost.

18. Point No.1

                Case of the complainant is that, he has undergone  bilateral laparoscopic hernia repair on 4/08/2014 done by 1^st opposite party at 2^nd opposite party hospital.  He was discharged on 6/08/2014 with an advice to review after seven days.  Then complainant had suffered fever and pain on inguinal region and it is informed to the first opposite party, but he did not consider the complainant and did not take the matter seriously. Thereafter complainant approached Al-shifa hospital, Perintalmanana on 12/11/2014 and was diagnosed that there is post operative mesh hypersensitivity and diabetes mellitus.  From there, inguinal exploration was done and the mesh and drainage of fluid from retroperitoneal space was removed and he was discharged on 19/11/2014.  All these were happened due to the deficient service of opposite parties. 

19.        In their version and affidavit, opposite party No.1 clearly stated that this complaint filed by complainant  is barred by limitation and  liable to be dismissed  in limine on that ground. They contented that complainant underwent treatment in the 2^nd opposite party hospital in the year 2014 and the date of surgery was 4/08/2014 and he was discharged from the hospital on 6/08/2014. They again contented that the present complaint No.CC/123/2017 was filed on 03/04/2017  alleging  negligence and deficiency in service in respect of the  said treatment is  hopelessly barred by limitation and  hence  the issue of maintainability of the complaint  may be  tried as  a preliminary issue.  

20.        Section 24 A of Consumer Protection Act 1986 mentioned about the limitation period for filing complaints before the Consumer Disputes Redressal Commission. Section 24 A(1) stated that the District Forum and  the State Commission or the National commission shall not admit a complaint unless it is filed within two years  from the date  on which  the cause of action has arisen.  Section 24 A(2) again stated that  notwithstanding anything contained in sub Section (1) a complaint may be entertained  after the period  specified in sub Section (1), if the complainant satisfies the  District Forum, the State Commission or the National Commission as the case may be , that  he had sufficient  cause for  not filing the  complaint  within  such period.  Provided that  no such complaint  shall be entertained unless the National Commission, State Commission or the District Forum,  as the case may be records  its reasons  for condoning  such delay.   This power is required to be exercise after giving opportunity of hearing to the complainant, who can file condonation of delay under Section 24 A(2) by showing that   there    was sufficient  cause for  not   filing the complaint    within  the   period

prescribed   under  Section 24 A(1).   The same section is there in the new Act, the

Consumer Protection Act 2019 U/S 69 explaining about limitation period.

21.       In this case, opposite party No.1 in their version and affidavit and argument note stated that the complaint filed by complainant is barred by limitation.  The reason they stated that the surgery was done on 2014 and the case was filed on 2017.  But complainant has remained silent on this point raised by opposite party No.1. Complainant has even not filed a petition seeking permission from the Commission to condone the delay in filing this complaint.  If complainant did not know about this earlier, he could have filed petition or application after receiving the version from opposite party No.1. If there is any delay, an application should have been filed by complainant to condone the delay.  Thereafter also they are not raising any contention regarding this point and while cross examining the complainant he deposed that “dj¡-Y¢ ¨J¡-T¤-·-Y® 2017–k¡X®. J¡-kY¡ho« h¡-¸¡-´¡u A-©dÈ ¨J¡-T¤-·¢-¶¢¿.

22.     From the points mentioned above, it is clear that complainant filed this complaint after two years from the date on which cause of action has arisen.  Hence the present complaint is barred by limitation.  It is a mandatory provision. As per the contention of opposite party No.1, no discretion can be applied to this provision. They again contented that, the District Commission should not have entertained this complaint filed without recording the reasons for condoning the delay. It is seen that there is no explanation even in the complaint regarding the delay caused in filing this complaint. Sending a lawyer notice in a later stage is not at all a cause of action for a complaint. Hence this complaint hit by the limitation provision mentioned in  Consumer Protection Act of 1986 & 2019.

23.    Point No.2 & 3 :-

           As per the complaint and affidavit filed by the complainant, there is no allegation against opposite party No.2 hospital. Only the surgery was held at the opposite party No.2 hospital. Opposite party No.2 stated that, complainant has not made any specific allegation against opposite party No.2 in their complaint and affidavit.  There is no employer and servant relationship between the opposite parties.  The 1^st opposite party is working on contract basis.  They again contented that as per Ext. A1 and A2 and Ext. B1 & B2 series shows that  there was negligence  on the part of complainant  in consulting with opposite party No.1   at  appropriate intervals  and he wilfully  failed to pursue or continue the treatment under opposite party No.1 from 12/08/2014 to 16/9/2014 and between 16/09/2014 to 12/11/2014 .  They again submitted that, if he had been prompt in the follow up, the opposite parties could have made further investigations at proper time and could have found proper analysis and solution for the incidental or   post operative complaint.  Hence they submitted that there is no negligence or deficiency of service on the part of opposite parties in the treatment or care given to complainant. From the above points we are on the opinion that  opposite party No.2 is  not liable to compensate  the complainant.

24.            As per complainant’s case, complainant had been undergone to a B/L Lap, Hernia repair under GA on 04/08/2014 and was discharged on 06/08/2014 with advice of review after 7days.  Complainant had consulted opposite party No.1 doctor  as outpatient on 29/07/2014, 12/08/2014, 22/08/2014 and 16/09/2014 and on 12/08/2014 USG has been done  and a minimal fluid collection was found, but the doctor was negligent on arriving into a conclusion that there was chances of  complications to the complainant.  Again on 22/08/2014 he consulted opposite party No.1 doctor and reported pain and swelling, but it was not taken by opposite party No.1 as a serious matter.  Again on 16/09/2014 complainant had consulted opposite party No.1 and had taken USG which shows there was minimal fluid collection  around  the hernia mesh in lower abdominal wall.    Then opposite party No.1 doctor advised the complainant  to take rest.

25.       From the documents produced by the complainant before the Commission, we are on the opinion that there is  no document to prove the negligence on the part of opposite party No.1.   Opposite party No.1 admitted that there was a review on 12/08/2014 and on that day complainant complained about mild pain and fever and  he advised  antibiotics , analgesics  and antipyretics for five days.   Opposite party No.1 again admitted that complainant reported for review on 16/09/2014 with complaint  of mild pain  at surgery site without fever and  the complainant had been advised  to conduct USG  of inguinal region and  there was  a minimal fluid collection in that region and he again advised to take a course of antibiotics for seven days  and review after one month.  

26.        As per medical books Seroma is a build up clear fluid inside the body (Fluid collection).  It happens most often after surgery. Seroma is not often dangerous but it can cause pain and discomfort.  It develops in places where tissue has been removed with surgery.  It is a settled position.  Seroma will find after surgery in most cases.  In the deposition of DW1 deposed by opposite party No.1 doctor that,  ¨ptX¢-i H¡-¸-©snc® ©m-n« Seroma (fluid collection) o¡-b¬-Y-i¤-Ù®.  A-¨Y¡-j¤ o¡-b¡jX phenomena B-X®. Seroma D-Ù¡-i¡v d¢¨¼ operation ¨Ê B-l-m¬«-C¿. A-Y® Y-c¢-¨i d-j¢-p-j¢-´-¨¸-T¤«. o¡-b¡-j-X-i¡-i¢ H¼¤ jÙ¤ h¡-o-·¢c-J« d-j¢-p-j¢´-¨¸-T¤«.

27.        He again deposed that “  Seroma D-Ù¡-J¡u o¡-b¬-Y-i¤-¾Y¤-¨J¡-Ù® B-i-Y¢-c¤-©lÙ precaution F-T¤-©´Ù-Y® F¨Ê duty BX®.12/08/2014c® Seroma J-Ù-Y¢ c¤-©m-n« S¡u h¤u-Jj¤-Y-k¤-Jw F-T¤-·¢¿ F-¼¤ d-s-º¡v m-j¢i¿. Antibiotics & Pain killers prescribe ¨O-i®-Y¢-j¤-¼¤. Seroma e-k-h¡-i¢-¶¤-¾ ©l-ac´® operation  A¿¡-¨Y h-פ h¡t-Lê-h¢¿ F-¼¤ d-s-º¡v m-j¢-i¿. Seromai¤-¨T J¡jX« quality J¤sº mesh  D-d-©i¡-L¢-µ-Y¡-¨X-¼® d-s-º¡v m-j¢i¿.

28.            As per the deposition of complainant, he stated that “4/08/2014 c¡X® surgery ¨O-i®-Y-Y®. 06/8/2014c® discharge ¨O-i®-Y¤.7 a¢l-o« J-r¢-º® l-j¡u d-s-º¢-j¤¼¤. ¨Os¢-i ©l-a-ci¤« d-c¢-i¤« l-¼-©¸¡w l£Ù¤« B-m¤-d-±Y¢-i¢v ©d¡-i¢ d-s-º¢-j¤¼¤. Antibiotic D« h-פ h-j¤-¼¤-Jq¤« Y-¼¢-j¤¼¤. 16/09/2014 c® hospital-k¢v  ©d¡-i¢-j¤¼¤. A-¼® ¨Os¢-i d-c¢ D-Ù¡-i¢-j¤¼¤.  A¼®  Ultra  Sound Scan ¨O-à¡u

d-s-º¢-j¤¼¤. Mild fluid D-¾-Y¡i¢ result–v J-Ù¢-j¤¼¤. A-Y¢c® Antibiotic D« h-×® h-j¤-¼¤-Jq¤« Y-¼¢-j¤¼¤. complainant again deposed that “F¨Ê ©j¡L« bilateral inguinal Hernia B-¨X¼® doctor d-s-º¢-j¤¼¤. B-i-Y¢-c® m¡-o®-±Y£-i O¢-J¢Ë surgery B-X®.  A-Y® ¨O-à¤-Ji¤« ¨O-i®Y¤. He again deposed that  jÙ¡h-¨· B-m¤-d-±Y¢-i¢v c¢¼¤« p¡-Q-j¡´¢-i ©j-K-J-q¢v  B-a¬-¨· O¢-J¢-Ë-¨i-J¤-s¢-µ® d-s-i¤-¼¢¿.

29.        From the above points we are on the opinion that there is no negligence from

the side of opposite party No.1 also. It can also be noted that none of the documents submitted by complainant from Alshifa hospital reveals that why he was taken to Al-shifa hospital and what treatment was given to him at Al shifa hospital.    There is no document to show that, he was availed treatment at Al-shifa hospital in continuation  of treatment    availed from  first opposite party.  More over complainant  did not examined   Dr. Muhammed Sajid, the doctor who treated the complainant  at Al-shifa hospital. Treatment records from al-shifa hospital  also silent  on the issue  whether  it was a  follow up  treatment of first opposite party.  If it was a continuous treatment of first opposite party, it could have find place in treatment records.  So it is not proper to hold that there was negligence on the side of first opposite party   in treating the complainant and the treatment availed from Al-shifa hospital was  to cope up the difficulties in treatment at opposite parties. 

30.     More over in the treatment records of Al-shifa hospital clearly stated that diabetes mellitus is recently detected. From Ext. B1 document it is clear that the treatment given by opposite party No.1 to complainant were done with the consent of complainant. Complainant failed to prove the negligence from the side of opposite party No.1.  On 16/09/2014  complainant  approached  opposite party No.1 with mild pain at surgery site without fever and opposite party No.1 advised USG which shows minimal fluid collection in the inguinal region which was not significant.   He was advised to take a course of antibiotic for seven days and review thereafter.  But complainant did not turn up for review and lost further follow up. 

31.    A bare statement or allegation raised by complainant that there was deficiency in service of opposite parties is not sufficient to challenge the efficacy of doctor, who conducted the surgery. Hence the allegations raised by complainant against opposite parties are found baseless.  Hence complaint dismissed.   

          Dated this 24^th  day of March, 2022.