The complaint U/s 12 of the Consumer Protection Act 1986.
1. The complaint in short is as follows: -
Son of the complainant, two years old child sustained small injury to the thumb of left hand. The fact was brought to the notice of family members on 25/5/2018 and they decided to meet a doctor and for that purpose the mother-in-law of the complainant took the child on the same day at about 11 AM to the nearest hospital. The child was consulted in the OP and advised to admit the child since the injury was bit serious and also suggested for surgery, otherwise it will be dangerous. It was informed the complainant to do the surgery anaesthesia has to be administered and child should be kept in fasting and accordingly the child admitted in the hospital.
2. The mother-in-law of the complainant informed the complainant who was not at there at that time and the complainant reached at the hospital by 5 O’clock in the evening and that time the child was crying for want of food. Then the complainant met with first opposite party and asked about the issues and the first opposite party said to the complainant that the injury is serious nature, surgical procedure is necessary, the administration of anaesthesia is also required. The complainant asked about the consequences of administration of anaesthesia but the first opposite party responded in a threatening voice and explained about nature of injuries of the child.
3. Complainant then requested the first opposite party that not proceed with the said mode of treatment and demanded for discharge of the child and on that dissatisfied by the opposite party discharged the child on the next day without prescribing medicine. Then the complainant took the child to the Dr. Moideen kutty at Manjeri and the doctor said that there is no serious problem to the child. Dr. Moideen Kutty said that the injury may be due to any contact with hard object while he was playing and administration of antibiotics for five days will subsist the injury. Then Doctor prescribed medicine for five days and within two days the injury was started to heal and within five days the injury was completely cured and regained earlier position.
4. The opposite party exaggerated a simple thing and thereby threatened complainant to extract money. The opposite party administered several medicines and was directed to undergo several lab tests within limited time of 24 hours. The opposite parties are realised Rs.3210/- as surgery charge and also cost of medicine Rs. 2020/-. The complainant spends almost Rs. 8000/-within one day. Moreover, due to the statement of opposite parties the complainant was afraid and caused mental stress also. The attempt of the opposite parties was to extract money from the complainant through threatening and pressurising the complainant.
5. The prayer of the complainant is that to refund the treatment expense of Rs. 8000/- realised by the opposite parties and also to pay compensation of Rs. 5,00,000/- and cost of Rs. 10,000/- on account of mental agony and inconveniences caused to the complainant.
6. On admission of the complaint notice was issued to the opposite parties and on receipt of the notice opposite parties entered appearance and filed detailed version denying the entire averments and allegations contained in the complaint.
7. The opposite parties submitted that the complaint is not maintainable either in law or on facts, it is frivolous, vexatious and devoid of truth or bonafide. There is no negligence or deficiency in service on the part of the opposite parties as alleged by the complainant and he is not entitled to get any relief as prayed in the complainant.
8. The opposite parties submitted that the patient aged two years named Rishan
Moidu was brought to the surgery out-patient department and consulted by the first opposite party on 25/05/2018 with complaints of pain and swelling over the left thump of five days duration. As per clinical history there was history of trauma present prior to the onset of symptoms for which no treatment was taken earlier. On examination there was swelling and redness with an abscess over the left thumb. The patient was afebrile and his general condition was fair. On the basis of clinical examination findings, the first opposite party had explained the need for incision and drainage of the abscess under general anaesthesia and advised for admission. Since the patient was two-year-old child the procedure should have been done under general anaesthesia and the nature of procedure, mode of anaesthesia and the complications of surgery and anaesthesia were well explained in detail to the parents.
9. The patient was admitted on the same day and caused for incision and drainage under general anaesthesia, Pre-anaesthetics and paediatrics consultations were done and pre-surgical investigations were also done. The anaesthetist had examined the patient and for administering general anaesthesia patient has to stay without having food for six hours, for which the child kept nil per oral and put on IV fluid support. After obtaining written informed consent for incision and drainage under general anaesthesia the child was taken up for incision and drainage in the evening. Under all aseptic care and sterile precautions, the first opposite party conducted incision and drainage and abscess was uneventfully drained and dressing was given. On 26/05/2018 morning bystanders wanted to take child to nearby hospital for continuation of treatment and demanded for discharge. Hence the patient was discharged against medical advice with an instruction to continue the treatment at the centre of their choice. The discharge summary reveals the description of the procedure done for the patient in the second opposite party’s hospital and was issued to the bystanders along with investigation reports to facilitate further treatment. The bystanders took discharge for continue treatment in another hospital, the first opposite party did not prescribe medicine to the patient and the child was not brought to the hospital for review and lost follow up.
10. The opposite party submit that incision and drainage under general anaesthesia is the standard and medically accepted treatment procedure for drainage of abscess and procedure was uneventful and there was no intra operative or post operative complication. The discharge of his child was against medical advice and at the time of discharge the patient required further wound care and antibiotics only and the same was done somewhere. There is no damage was caused to the child patient or to the complainant by the treatment of the opposite parties. The first opposite party had exercised due skill, expertise and care in the treatment of child patient and there was no negligence or deficiency in service on his part. The opposite party denied that the allegation that opposite party stated that child was having wound of serious nature and dangerous, unless surgery was done is misleading, that while the complainant asked about the condition of the child the first opposite party had told him about the nature of injury in a manner to cause him fear but explained mode of anaesthesia for a child patient aged two years for incision and drainage especially since it is hardly possible to do I &D for a child patient under local anaesthesia. The first opposite party was told by the complainant to desist from doing surgical treatment and to discharge for taking treatment from another hospital is not correct. But on arrival of complainant in the hospital, he was informed about the pros and cons I & D and mode of anaesthesia and written consent was taken before the procedure. It is also denied that complainant was unwilling for the procedure and demanded discharge on 25/05/2018. The complainant demanded discharge only on 26/05/2018. The opposite party no discharge medicine was prescribed since the child patient was taking to another hospital for continuation of treatment. At the time of discharge further management was only wound care and antibiotics and nothing more was required. The submission of the complainant that the child was taken to another doctor at Manjeri and he was completely cured with antibiotics shed light on the fact that the first opposite party had treated the patient with proper procedure with due skill and care and no further management was required except wound care and antibiotics. The allegation that opposite parties acted with an intention to extract money from the complainant by exaggerating a simple thing so as to cause him fear, is ill motivated and so denied. The first opposite party submitted that child patient was completely cured with treatment and allegation that the opposite parties acted in such a way to extract money by making patients and relatives a fearful is highly ill motivated and so denied.
11. Complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A8. Documents on the side of opposite parties are marked as Ext.B1. Ext.A1 is copy of inpatient invoice summary of patient No.0000737491 for the period 25/05/2018 to 26/05/2018, Ext. A2 is the copy of discharge summary in respect of patient Master Rishan Moidu. Ext.A3 is copy of laboratory report in respect patient Master Rishan Moidu, Ext. A4 is copy of prescription dated 26/05/2018, Ext. A5 is copy of advance receipt dated 26/05/2018, Ext.A6 is copy of advance receipt dated 25/05/2018, Ext.A7 series are the copies of Cash bill, Ext.A8 is copy of prescription issued by Dr. Moideen Kutty Ullat dated 26/05/2018. Ext.B1 is copy of treatment record. The complainant is examined as PW1.
12. Heard complainant and opposite parties, perused affidavit and documents. The opposite parties also filed notes of arguments. The following points arise for consideration: -
- Whether there is deficiency in service or negligence on the part of the opposite parties.
- Whether the complaint comes under the purview of Section 26 of the consumer Protection Act. 1986.
- Relief and cost.
13. Point No.1& 2:-
The allegation of the complaint is that while the injured boy was taken to opposite parties hospital and the first opposite party on examination of the wound told that it is serious and a surgery is required under general anaesthesia. When asked about whether general anaesthesia is necessary to set a small wound and thus giving general anaesthesia at an early stage will not affect health of the child, then the doctor told in a way which frightened the complainant. The complainant told first opposite party not to do such treatment and child was discharged next day without prescribing medicine. The act of the opposite parties was with the sole intention of extorting money from the complainant. The opposite parties collected unreasonable amount from the complainant and that led to file this complaint seeking repayment of Rs. 8000/- with compensation of Rs. 5,00,000/- along with cost of Rs. 10,000/-.
14. The opposite parties filed version and affidavit and also produced Ext. B1 treatment record of the minor child. The averment in the complaint is that the minor boy sustained small aberration on his left thumb while he was playing and it was came to the notice of family members on 25/05/2018 and on that day the boy was taken to the hospital. While on examination of PW1, he has stated that കുട്ടി റിഷാu മൊയ്തു കളിച്ചുകൊണ്ടിരുന്നപ്പോw ഇടതുകയ്യുടെ തള്ളവിരലിന് ഒരു ചെറിയ മുറിവ് പറ്റിയതാണ്. എന്നാണ് പറ്റിയത് എന്ന date ഓtമ്മയില്ല. പരിക്കു പറ്റിയ അതേ ദിവസം തന്നെ ഡോക്ടറെ കണ്ടു. പരിക്കു പറ്റുന്നത്ഞാu കണ്ടിട്ടില്ല. So, it can be seen that the complainant was not aware of the injuries till 25/05/2018. But he has deposed that the child was taken to the hospital on the same day of injuries sustained to the minor boy. But Ext. A2 Discharge summary document produced by the complainant himself reveals that the 2-year-old boy presented with swelling in the left thumb in the last three days and also with history of trauma to the left thumb with a shawl tightening over the distal aspect along the DIP joint. It was diagnosed caused to traumatic abscess left thumb and treatment of incision and drainage under local anaesthesia was done 25/05/2018. Now the question is whether the treatment given by the opposite party was in accordance with the principles of medical science or not and whether there was any deficiency in the procedure. The allegation of the complaint is that the procedure was refused by the complainant and demanded discharge of the patient. The complainant submits that he demanded for discharge refusing the treatment mode on 25/05/2018, but the patient was discharged only on the next day. It can be seen that the complainant has remitted an amount of Rs. 2000/- in advance for the treatment of the patient on 25/05/2018 evening. Which shows that the patient was got admitted in the hospital after consultation and understanding the procedure to be followed as a part of treatment in the hospital. The complainant was at liberty to refuse the admission and treatment during the consultation of the patient. So, we do not find on 25/05/2018 itself the complainant opposed the mode of treatment and demanded discharge of the patient. The treatment record also shows that the opposite parties have given treatment with due care and caution. The doctor who is treating the patient has got right to advice for conducting clinical examination before the surgical procedure. All the procedures are meant to provide better treatment to the patient. It cannot be treated that all clinical examinations are meant to extort money from the patient. In this complaint there is no specific allegation from the part of complainant which of the test done by the opposite parties was unnecessary in treating the patient. The treatment record shows the injury was sustained three days or five days ago and there was abscess and the patient was aged only two years. According to opposite parties the proper treatment in such a case is incision and drainage. The patient being a minor for safety of the surgical procedure administration of anaesthesia was also necessary. There is no contra evidence to the effect the procedure followed by the opposite parties were against medical science. In the absence of any scientific evidence mere allegations is not sufficient to discredit and discard a doctor in treating a person.
15. The complainant has not stated the true facts of the incidents led to the injury and the courses undergone in the hospital. The opposite parties have given proper treatment and medicine while the patient was treated before the opposite parties. The complainant demanded discharge of the patient against medical advice and so they did not prescribe medicine in the matter. According to them only administration of antibiotic for few days was sufficient after the I &D procedure in the matter. That was the reason to prescribe medicine by Dr. Moideen Kutty for antibiotics. It is also submitted by opposite parties that except antibiotics no other treatment was availed to the patient. So, in this complaint we do not find any merit in the contention of the complainant, the treatment given by the opposite parties was proper and there was no negligence or deficiency in service on the part of opposite parties. We find first point accordingly.
16. The opposite party prayed for invoking Section 26 of the Consumer Protection
Act 1986 which says were a complaint instituted before the District Forum, State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding Rs 10,000/- as may be prescribed in the order. In this complaint we cannot find the complaint was frivolous or vexatious one. Even though there was suppression of some facts it cannot be treated as sufficient ground to invoke Section 26 of the Consumer Protection Act and we find the second point accordingly.
17. Point No. 3: -
In the light of findings of points one and two the consideration of point No.3, the relief and cost does not arise and so we dismiss the complaint accordingly.
Dated this 15th day of March , 2022.
