Between
Smt Khasab Koyaklkar
W/o late K.Narayana, age 50 yrs
Occ: Household R/o H.No.2-5-8,
Baharath Road, Kamareddy Town & Post
Nizamabad District                                                               Appellant/complainant

        A N D

1.   Dr.R.Venkati
Managing Shadana Hospital
High School Road, Kamareddy
Town & Post, Nizamabad District

2.   Smt Dr.Saradha Vani, M.D.,
Managing Director Sai Vani Hospital
R/o H.No.1-2-365/36/6&7,
Rama Krishna Matam Road, Domalguda
Lower Tank Bund, Hyderabad-029                

Respondents/opposite parties

Counsel for the appellant              Sri Y.S.Yellanand Gupta
counsel for the respondent no.1     Sri M.Hari Babu
Counsel for the Respondent No.2   Sri K.Ranga Rao

Between
Dr.R.Venkati
Aged 37 years, Managing Shadhana Hospital
High School Road, Kamareddy Town
Nizamabad                                                                 Appellant/opposite partyno.1

                A N D

1.   Smt Khashab Koyalkar Thulasi Bai
W/o late K.Narayana, aged 52 yrs
Occ: Household R/o Bharat Road,
H.No.2-5-8, Kamareddy Town
Nizamabad                                                         Respondent/complainant
                                               

2.   Smt Dr.Saradha Vani, M.D.,
Managing Director Sai Vani Hospital
R/o 1-2-365/36/6&7, Ramakrishna
Matham Road, Domalguda, Lower
Tank Bund, Hyderabad-029                                   Respondent/opposite party no.2
                                               

Counsel for the Appellant                      Sri M.Hari Babu

Counsel for the Respondent No.1           Sri Y.S.Yallanand Gupta
Counsel for the Respondent No.2           Sri K.Ranga Rao

    QUORUM:                SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

   FRIDAY THE NINETH DAY OF APRIL                   

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                          ***

        These two appeals arise out of the order passed by the District Forum-Nizamabad in C.D.No.114 of 2001 whereby the complainant filed F.A.No.1644 of 2006 and the opposite party no.1 filed F.A.No.608 of 2007 assailing the impugned order.

        F.A.No.608 of 2007 is taken as the leading case wherein the facts as represented by the parties are that on 15.9.2001 the husband of the complainant due to ill health was taken to the opposite party no.1 hospital.  Even though the opposite partyno.1 treated him for three days failed to diagnose the disease he referred the patient to the opposite party no.2 hospital.  The complainant admitted her husband in the opposite party no.2 hospital for treatment and she had paid Rs.35,000/- towards the expenditure for  treatment of her husband.  On 19.9.2001 the doctors at opposite party no.2 hospital informed the complainant that her husband’s health had improved to some extent and collected an amount of Rs.10,000/- as also demanded the complainant on 21.9.2001 to pay a sum of Rs.20,000/- which the complainant had paid by selling her gold ornaments and also by borrowing the amount from others.  At 7 p.m. on the same day i.e., 21.9.2001 the doctors in opposite party no.2 hospital informed the complainant that her husband would not survive and asked her to take him her home.  At 9.30 p.m. the complainant had taken the dead body of her husband from the opposite party no.2 hospital to their house at Kamareddy.  The complainant had claimed that due to negligence shown by the doctors, the opposite party no.1 and the doctors at the hospital of the opposite party no.2 in treating her husband consequently to which he lost his life for treatment of whom the complainant had incurred heavy expenditure.  The only source of livelihood of the complainant’s family was deprived of his right by the negligent treatment of the opposite parties no.1 and 2.  The opposite party no.1 had misrepresented by prescribing the medicine on a letter pad that he is an MD, specialist in neurology and cardiology.  The complainant claimed an amount of Rs.2 lakhs towards compensation against the opposite parties no.1 and 2 and sought for a direction to the opposite party no.2 to return deposit amount of Rs.65,000/-. 

        The opposite parties resisted the claim of the complainant.  The opposite party no.2 has filed and the opposite party no.1 has adopted the counter filed by the opposite party no.2.  The opposite party no.2 has contended that the complainant has stated in her affidavit that her husband was treated by Dr.K.Bhumareddy specialist in Asthama, Allergy and Chest diseases at Nizamabad and she has not mentioned these facts in the complaint.  Dr.Bhumareddy is not made a party to the proceedings.  On 17.9.2001 at 2 p.m. the complainant’s husband was admitted in the hospital of the opposite party no.2 and at that time Dr.Amit Kumar Sinha, Neuorphysician, informed the relatives of the patient that the patient’s conditions was serious and he advised for necessary treatment.  The patient was kept on artificial ventilator in the ICU of the hospital.  All the necessary tests and X-ray were taken as per advise of the doctors.  A cardiologist, Dr.Srinath and Chest Physician Dr.E.Prasad were called to attend to the patient.  During the stay of the patient in the hospital of the opposite partyno.2 necessary tests were conducted and medicines were given.  Necessary bills were also issued whereby reasonable and competitive charges were collected from the relatives of the patient. The police had examined Dr.Amit Kumar Singh on 21.11.2001.  No action was taken by the police against the opposite party no.2 and closed the case long ago.  The High Court of A.P. in writ petition No.22224 of 2001 issued direction for the case to be referred to the medical council.  The complainant has filed the complaint with malafide intention to gain money unlawfully.  Hence, prayed for dismissal of the complaint. 

        The complainant has filer her affidavit  and examined Dr.Bhoom Reddy as PW2 and Exs.A1 to A34 were marked.

        The opposite party no.2 has filed her affidavit and Exs.B1 to B27 were marked on the side of the opposite parties. 

        The points for consideration are :

1)           Whether there was any negligence including the medical negligence on the part of the opposite parties no.1 and 2?

2)           To what relief?

POINT NO.1        The husband of the complainant K.Narayana, according to the complainant was admitted to the hospital of the opposite partyno.1 on 15.9.2001 where he was treated for three days and on 17.9.2001 he was referred by the opposite party no.1 to the hospital of the opposite party no.2.  The opposite party no.1 has not denied the fact of his giving treatment to the husband of the complainant for the period from 15.9.2001 to 17.9.2001.  The contention of the complainant is that the opposite partyno.1 has been not qualified and despite that he had been advertising that he is an M.D. and is a neurophysician as also cardiologist.  It is also the contention of the complainant that the opposite party no.1 has been prescribing medicine on prescription wherein no register no. is mentioned and that he had collected and amount of Rs.2 lakhs from the complainant by commercializing the medicine and the treatment.  The complainant has lodged complaint with the District Collector under ExA24 that the opposite party no.1 failed to diagnose the disease of her husband by treating him in his hospital for a period of three days and giving him an ordinary course of treatment till the patient met with emergency condition whereon on 17.9.2001 he was shifted to the hospital of the opposite party no.2. 

The complainant has lodged complaint before JMFC Kamareddy who referred the matter to the police, P.S. Kamareddy.  The police registered a case in Cr.No.261 of 2001 on 8.12.2001.  The complainant on the basis of which the FIR was issued indicates that the opposite party no.1 failed to diagnose the disease of the husband of the complainant, acted negligently towards the patient and charged heavy amount, due to the negligent act of the opposite partyno.1 the health condition of the complainant’s husband was deteriorated.   The opposite party no.1 has adopted the counter filed by the opposite party no.2.  In her counter, the opposite partyno.2 has not dealt with the pleadings in the complaint against the opposite party no.1.  Further, the complainant has stated in the complaint before the police that the opposite party no.1 used to negligently treat the patient at Naryankhed where the people attacked him as a result of which he had shifted his practice to Kamareddy. 

The opposite partyno.1 has admittedly treated the husband of the patient before he was referred to the hospital of the opposite partyno.2. Prescription Ex.A4 dated 18.7.2001 and 28.7.2001.  Ex.A5, is the prescription dated 28.7.2001 Ex.A7, prescription dated 14.9.2001 have been issued by the opposite party no.1.  The prescriptions do not contain the registration number of the opposite partyno.1 or Sadhana Hospital under the name and style of which hospital the opposite partyno.1 has been practicing medicine at Kamareddy.  The opposite party no.1 in Exs.A4 to A7 had designated himself as Physician with an endorsement that the diseases relating to the heart, nerves, diabetes , TB and chronic diseases would be paid special attention.  The complainant questions the qualifications of the opposite party no.1 as to his proclamation of treatment of diseases of heart, nerves and chronic diseases such as TB.  We do not find any fault with the opposite party no.1 that he would pay special attention to the patients suffering TB, diabetes neurological problems and chronic diseases.  However, the proclamation of the opposite patyno.1 in Exs.A4 to A7 that he would specially treat the patient’s with cardiac problems is concerned, it does not appear fair on the part of the opposite party no.1 that though he is not a cardiologist he would undertake to treat the cardiac diseases. 

The opposite party no.1 has not adduced any evidence in reply to the statement of the complainant that he is not qualified to give treatment of the disease suffered by her husband or any other diseases.  The opposite party no.1 had got conducted blood test and ECG of the complainant’s husband on 18.7.2001 and prescribed some medicine.  On 28.7.2001 the opposite party no.1 has diagnosed the disease of the patient as COPD and to that effect he has prescribed the medicine besides advising the patient to undergo CT scan and MRI. 

Prior to consulting the oppose partyno.1, the complainant’s husband was getting treatment from Dr.A.Bhoom Reddy and the same is evident from Exs.A1 and A2 prescriptions wherein the doctor who was examined as PW2 had diagnosed the problem the compalinant’s husband suffered from as COPD, Koch disease.  PW2 has deposed that he had advised for X-ray, ECG and blood sugar of the patient whereof the tests revealed normal values.  Thereafter on 15.6.2001 the X-ray revealed pulmonary TB for the treatment of which disease he had prescribed Rifamycin 450mg daily besides the other tablets.  The patient did not come to him after 20 days as advised by the witness.  In his cross examination by the opposite parties no.1 and 2, PW2 has denied the suggestion that the complainant’s was suffering from asthama when he consulted PW2 for the first time and he had given the patient treatment for asthama.  Further,  in his cross examination PW2 has stated that the patient had not stopped smoking inspite of his advice and therefore TB developed in him.  We would discuss the aspect of the negligence and misrepresentation by the opposite party no.1 in the subsequent paragraphs of the order at the time of discussing these aspects insofar as the opposite party no.2 is concerned. 

The complainant has contended that the opposite partyno.2 has informed her that she could not tell anything about the condition of the patient for about 48 hours from the time he was admitted in her hospital and by making such statement, the opposite party no.2 and her staff had collected an amount of Rs.35,000/- from the complainant and on 19.9.2001 she had stated that the patient condition has improved and thereby she had collected an amount of Rs.10,000/-.  On 21.9.2001 the opposite partyno.2 has demanded an amount of Rs.20,000/- from the complainant which was paid by her at 4.30 p.m. and at about  7 p.m. on the same day the opposite partyno.2 and the other doctors in her hospital had asked the complainant to take her husband to their home as the chances of his survival were bleak.  At 9.30 p.m. the dead body of the patient was taken home. 

The opposite party no.2 has filed her affidavit as evidence and avoided to present herself for cross examination in spite of the direction by the District Forum.  In the circumstances, the affidavit filed in the shape of chief examination though not eschewed can be given any consideration.  The pleadings of the counter filed by the opposite party no.2 would show the facilities available in the hospital of the opposite party no.2 and the specialists available therein.   The opposite party no.2 has contended that she had informed the complainant the details of the expenditure.  The documents filed on behalf of the opposite party no.2 are final bill statement for Rs.65,000/-, the statement of Dr.Amit Kumar recorded u/s 161 of Cr.P.C. and the case sheet of the complainant’s husband.  The statement of Dr.Amit Kumar is of no relevance and it cannot be of any help to the case of the opposite party no.2 for the reasons that the consumer complaint is not a complaint lodged under the provisions of the Cr.P.C. nor the statement can be used except to contradict the witness while he is examined in the criminal case concerned.  The case sheet reveals that the complainant’s husband was admitted in Sai Vani Hospital of the opposite partyno.2 on 17.9.2001 and was discharged on 22.9.2001

It is the consistent version of the complainant that the opposite party no.1 had been not qualified to treat the diseases that he had got printed in the prescription.  The complainant would contend that the opposite party no.1 used to practice at Narayankhed in Medak District and by his negligent treatment caused many patients suffer serious condition.  The complainant would also contend that on his being driven away by  the people of Narayankhed village,  the opposite party no.1 has settled at Kamareddy.  The opposite party no.1 has not denied the fact that he was driven away from Narayankhed.  The opposite party no.1 has not filed counter in reply to the allegations made against him except that he adopted the counter filed by the opposite party no.2 wherein the entire matter dealt with was in regard to the role of the opposite party no.2.   The opposite party no.1 has not chosen to lead any evidence denying the pleadings of the complainant insofar as they are concerned with the aspect of negligence on his part. 

The opposite party no.1 has got printed in the prescription that he is an M.D.  In this regard there is no evidence on record.  AT least the opposite party no.1 should have mentioned his number on the rolls of register maintained by the A.P. State Medical Council.  It is essential to reproduce here the sections 25 and 28 of the Indian Medical Council Act which deal with the registration of the qualified medical practitioners in the state of A.P. and the necessity of change in place of practice thereof.  Sec.25 to 28 of Indian Medical Council Act,  reads as follows:

Provisional registration for clinical practice  Sec.25 Provisional registration for clinical practice. If the courses of study to be undergone for obtaining a recognised medical qualification include a period of training after a person has passed the qualifying examination and before such qualification is conferred on him, any such person shall, on application made by him in this behalf, be granted provisional registration in a State Medical Register by the State Medical Council concerned in order to enable him to practise medicine in an approved institution for the period aforesaid.

Registration of additional qualifications.

26. Registration of additional qualifications. (1) If any person whose name is entered in the Indian Medical Register obtains any title, diploma or other qualification for proficiency in sanitary science, public health or medicine, which is a recognised medical, qualification, he shall on application made in this behalf in the prescribed manner, be entitled to have an entry, stating such other title, diploma, or other qualification made against his name in the Indian Medical Register either in substitution for or in addition to any entry previously made.

(2) The entries in respect of any such person in a State Medical Register shall be altered in accordance with the alterations made in the Indian Medical Register. 1176

Privileges of persons who are enrolled on the Indian Medical Register. 27. Privileges of persons who are enrolled on the Indian Medical Register. Subject to the conditions and restrictions laid down in this Act regarding medical practice by persons possessing certain recognised medical qualifications, every person whose name Is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practise as a medical practioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled.

Person enrolled on the Indian Medical Register to notify change ofplace of residence or practice. 28. Person enrolled on the Indian Medical Register to notify change of place of residence or practice. Every person registered in the Indian Medical Register shall notify any transfer of the place of his residence or practice to the Council and to the State Medical Council concerned, within thirty days of such transfer, failing which his right to participate in the election of members to the Council or a State Medical Council shall be liable to be forfeited by order of the Central Government either permanently, or for such period as may be specified therein.

The opposite party no.1 has failed to refute the charges leveled against him which does entitled the complainant fetch a platform where the averments of her complaint had got the support thereof.  The opposite party no.2 has not revealed the  actual condition of the patient  when the complainant has admitted he husband in the hospital of the opposite party no.2 at Hyderabad. 

It is the consistent version of the complainant that the doctors in the hospital of the opposite party no.2 had made her believe that the condition of her husband improved to a large extent and thereby extracted money from her.  The opposite party no.2 except filing the bills has not chosen to deny the averments of the complaint in relation to the information passed on by the doctors in her hospital that the condition of the husband of the complainant improved and thereby instilled  a ray of hope  in her life that her husband would survive and within hours after collecting the  fees in thousands the complainant was informed that her husband may not survive.  In the context of the statement of the complainant, the attitude of the opposite party no.2 has to be considered and in these circumstances, the consent of the patient or the complainant  for the treatment of the patient attains much significance. 

In Samira Kohli V. Dr.Prabha Manchanda and another, the Hon’ble Supreme Court “differentiated between Informed consent and Real or Valid consent More over it has elaborated various aspects involved in the treatment including poor patient, long waiting period, lack of infrastructure and commercialization of medical practice”. Honorable Supreme Court has expressed major concern over ignorance on the part of Indian patients in understanding what they would sign and has thus concluded the type of consent that shall be practiced in India.

The Apex Court condluced that “the adequate information to be provided by the doctor should enable a patient to make a balanced  judgment as to weather he should submit himself to a particular treatment or not. This means that a doctor should disclose nature and procedure of the treatment and its purpose, benefits and effects. It should also provide alternatives if available, substantial risk and adverse consequences of refusal of treatment offered. But there is no need to explain the remote or theoretical risks which may frighten the patient resulting in refusal of treatment or opting for fanciful or unnecessary options or resulting in psychological stress o the patient.  Nature of disclosure shall also depend upon physical and mental condition of the patient.

The opposite parties no.1 and 2 having admitted the husband of the complainant in their respective hospitals had not bothered to obtain the consent of the complainant or that of her husband for the treatment they were going to give him.  The complainant or her husband was not informed of the disease that the complainant’s husband was suffering from and prognosis thereof.  The husband of the complainant was diagnosed  to have suffered from COPD by the opposite party no.1 whereas doctors in the hospital of the opposite party no.2 at one stage of the treatment entertained the doubt that he was suffering from Carcinoma of Cervical Lymp Node.  We make it clear that it is not line of treatment adopted by the opposite parties no.1 and 2 while treating the complainant’s husband is erroneous or negligent but it is the manner the opposite parties treated the husband of the complainant since the date of his admission in their respective hospitals till he was discharged on 21.9.2001 from the hospital of the opposite party no.2.  The opposite party no.2 has no where mentioned in her counter that the complainant’s husband was discharged against medical advice.  Interestingly, the Xerox copy of case sheet was filed to suggest that the patient was discharged against the medical advice.  It is not explained why the original case sheet was not filed by the opposite party no.2.  In these circumstances and considering the facts of the case, we are inclined to  award compensation of Rs.57,800/- (the amount collected by the opposite party no.2 from the complainant)  as prayed for by the complainant against the opposite party no.2 and the other reliefs prayed for are hereby disallowed.  The appeal filed by the complainant deserves to be allowed accordingly and award of Rs.20,000/- against the opposite party no.1 is sustained by maintaining the impugned order.

In the result the appeal F.A.No.1644 of 2006 filed by the complainant is partly allowed.  The appeal F.A.No.608 of 2007 filed by the opposite party no.1 is dismissed.  The opposite party no.1 directed to pay an amount of Rs.20,000/- and the opposite party no.2 a sum of Rs.57,800/- to the complainant.  There shall be no order as to costs.  Time for compliance four weeks.

                                                                MEMBER

                                                                MEMBER

                                                           Dt.09.04.2010

KMK*