BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
and
Smt C.Preethi, M.A., LL.B., Member
Thrusday the 30th day of August, 2007
C.C. No.126/2006
Panyam Sujatha, W/o. Panyam Siva Rami Reddy,
Chennampalli Village, Owk Mandalam, Kurnool District.
… COMPLAINANT
Verses
Dr. A. Naga Rekha, Government Hospital,
Gospadu Village, Gospadu Mandal, Allagadda Taluk, Kurnool District. (A.P)
2. The District Medical and Health Officer, (D.M.H.O),
District Medical and Health Office (D.M and H.O), Kurnool.
3. The District Collector,
Kurnool. …OPPOSITE PARTIES
This complaint coming on this day for orders in the presence of Sri. M. Venkoba Rao, Advocate, kurnool for complainant, and Sri. A. Sivaramanaiah, Advocate, Kurnool for opposite party No. 1 and Smt.D.S.Sai leela, Advocate for opposite party 2 and 3 and upon persuing the material papers on record, the Forum made the following:-
ORDER
(As per Sri.K.V.H.Prasad, President)
C.C No.126/2006
1. This case of the Complainant is filed U/Ss. 11 to 13 of the C.P.Act seeking an order on the opposite parties to pay to the Complainant Rs.5,00,000/- as compensation for mental agony, pain and present and future medical and other expenses, costs of the case and such other reliefs which the exigencies of the case demand, alleging puncture injury to the ecipient bladder during tubactomy operation to the Complainant on 29.8.2005 at the medical negligence and rashness of the opposite party No.1 in performing said operation as doctor of Gospadu working on deputation at Government Hospital, Koilakuntla which is under control of Opposite Party 2 and 3 and the shifting of Complainant to Governmental General Hospital, Kurnool, after suturing the said woond, by Dr.Rama Krishna Reddy, Civil Assistant Surgeron, Koilakuntla, for better treatment and the treatment at Government General Hospital, Kurnool till 13.9.2005 and the Complainant suffering with pain due to blood clotting and puss formation in urine inspite of incurring heavy expenditure.
2. In pursuance of the receipt of the notice of this forum as to this case of the Complainant the opposite parties caused their appearance through their counsels and contested the case filling written versions denying their liability to the Complainant’s claim alleging any negligence as the opposite party No.1 is a qualified Gynacologist having such experience in several operations and taking of every care and caution during said tubactomy operation to the Complainant and the occurrence of said injury to Peritonium bladder as accidental and taking of every care after the said surgeroy in suturing said injury and sending the Complainant to Government General Hospital, Kurnool for better treatment in Government Ambulance and proper treatment at Government General Hospital, Kurnool and discharge of Complainant after free to any complication and the dismissal of criminal case laid against the Opposite Party No.1 in this regard by Judicial First class Magistrate, Koilakuntla and any consumer status to the Complainant as the said operation and further treatment till discharge was rendered free of cost.
3. In substantiation of the contentions while the Complainant side has relied upon documentary record in Ex.A1 to Ex.A4 besides to her sworn affidavit in reiteration of its case, the Opposite Party side has taken reliance on documentary record in Ex.B1 to B4 and the evidence of RW.1 to 4 besides to the sworn affidavit of the Opposite Party No.1 in reiteration of its defence.
4. Hence the point for consideration is whether any deficiency of medical service or negligence in such service on the part of the Opposite Party No.1 is brought out by the Complainant to hold the liability of opposite parties to the Complainant’s claim.
5. The Ex.A1 is Xerox of sterilization certificate issued by Government General Hospital, Kurnool. It envisages the Complainant undergoing tubactomy operation on 29.8.2005 and the performance of said operation by Dr.A.Naga Rekha – (Opposite Party No.1). As this aspect of Opposite Party No.1 performing tubactomy operation to the Complainant being an undisputed fact from both sides the Ex.A1 needs any further appreciation than what it envisages.
6. The Ex.A2 is a paper cutting dated 30.8.2005 said to be of Andhra Jyothi paper which says the performance of family planning operation to the Complainant by the Opposite Party No.1 and puncture to bladder during said operation at the negligence of Opposite Party No.1 and Dr.Rama Krishna Reddy saving the Complainant by suturing the said woond and referring her to Government General Hospital, Kurnool in Government Ambulance. But it being a mere paper cutting not substantiated otherwise and said Dr. B. Rama Krishna Reddy in his sworn affidavit and in evidence as RW.3 says the suturing of the woond was done by the Opposite Party No.1 herself and opposite party No.1 herself referred the Complainant to Government General Hospital, Kurnool for better treatment. Hence the said Ex.A2 being not proved as stated therein to find any fault with the Opposite Party No.1 and on the other hand the contents of Ex.A2 being rebutted by sworn affidavit and evidence of said Dr.Rama Krishna Reddy the Ex.A2 remains with any value to asses to any negligence of Opposite Party No.1.especially when the evidence and sworn affidavit of RW.1 and 2 are consistent to each other to the effect that the said injury to the bladder is a mere accidental and not intention.
7. The Ex.A3 and A4 – Complainant’s legal notice dated 13.9.2005 and reply of opposite party No.1 13.10.2005 - bears any much relevancy for assessing any deficiency on their own strength on the part of the Opposite Party No.1 as they merely reflect the grievances of the Complainant and the defense of the Opposite Party.
8. The Ex.B3 – ecipientn case record signed by the Opposite Party No.1 – says the accidental injury to bladder during tubactomy operation was sutured and the said fact was made known to the Complainant’s relatives also. No where to the Ex.B2 to B4 shows the sutures to Complainant’s bladder injury was made by Dr.Rama Krishna Reddy (RW.3). But on the other hand the evidence of Dr.Rama Krishna Reddy as RW.3 and the evidence of Opposite Party No.1 as RW.1, it appears that the said accidental injury to the Complainant’s bladder was immediately attend by the Opposite Party No.1 herself. The Ex.B1 the certified copy of Judgement of Judicial First Class Magistrate Court, Koilakuntla on the opposite party No.1 on the same complaint of the Complainant, also finds no medical negligence on the part of Opposite Party No.1 in the operation performed on Complainant and injury occurred to the bladder. As the evidence of RW.3 Dr.B.Rama Krishna Reddy also says, apart from the Opposite Party No.1, that the said injury being repaired by the Opposite Party No.1 only in his presence, it exhibits the immediate care and caution taken by the Opposite Party No.1 towards the Complainant in repairing the Complainant’s said injury and guarding her from any further unhappy circumstance and complications. The evidence of RW.4 Dr.K.Seetha Ramaiah – who treated the Complainant in Government General Hospital, Kurnool also says the said injury to the bladder of the Complainant was repaired by opposite party No.1 and after her discharge from Government General Hospital, Kurnool, on her turn up for medical check up about a fortnight after to the discharge the Complainant not complaining of any complications. The evidence of RW.4 says that if the said injury to bladder was not healed the Complainant would have got ecipientn to the ecipient and internal organs which would lead to abdominal pain, vomitins and abdominal bulges as ballons and the Complainant on her turn up for medical check up about a fortnight after to discharge from Government General Hospital, kurnool did not make any such complaint. From the said evidence of RW.4 Dr.K.Seetha Ramaiah what remains clear is that the Complainant was cured of totally and not left with any complications after discharge. The Complainant except alleging in complaint that she had suffering due to formation of blood clot, puss and urine etc., as did not substantiate the same by any cogent material or evidence the said contention appears to be bearing any grain of truth.
9. The immediate repairing of the injury to bladder by suturing it by the Opposite Party No.1 implies the reasonable care the Opposite Party No.1 has taken to the Complainant which a doctor would take in the said circumstance and there by establishes her bonafidees more rather than any malafidees.
10. From the evidence of RW.4 the said injury to bladder as accidental from its close proximity to peritoneum. It also appears from the above circumstance that the occurrence of said injury to bladder is a mere accidental one and not an intentional one as found in Ex.B1 Judgement also and the Opposite Party No.1. Hence there appears any circumstance to find any medical negligencies and deficiency of service on the part o the Opposite Party No.1 merely because an injury to bladder of Complainant occurred during tubactomy operation.
11. The Opposite Parties contened that the service rendered to the Complainant being free of cost in the Hospital from the inception till her discharge after total cure, the Complainant is not a consumer and hence her case is not maintainable. But there appears no much substance in said contention as the Honourable National Consumer’s Dispute Redressal Commission, New Delhi, in Gouri Sankar Padhi and another V/S State of Orissa and others reported in I (2007) CPJ Page 167 (NC) holds that free service would also be “service” and ecipient a consumer under Act and plea of opposite parties that service rendered by Hospital was free service and the patient is not consumer is not accepted by the Honourable Karnataka State Consumers Dispute Redressal Commission in Rajendra Sarma V/S ESI Hospital, and others reported in II (2006 )CPJ page 393.
12. The case of the Complainant being that the injury to bladder occurred at the negligence of Opposite Party No.1 in conducting tubactomy operation and not that the Opposite Party No.1 has not informed of the risks involved such as any possibility for injury to bladder, the decision of Honourable National Disputes Redressal Commission, New Delhi, rendered in Dr.Syam Kumar V/S.Ramesh Bhai Harman Bhai Kachiya reported in I (2006) CPJ page 16 (NC) as not informing of risk involved in proposed treatment amounts to deficiency – bears any relevancy for its appreciation to the facts and circumstance of this Complainant’s case.
13. The decision of Honourable Karnatka State Consumers Disputes Redressal Commission rendered in Aswathnarayana V/S B.Anusuya and another reported in III (2006) CPJ Page 150 holding medical negligence in the absence of such facilities necessary to have been made available before it under takes surgery – doesn’t appear to be any relevant application for appreciation to the facts and circumstance of this Complainant’s case as the approach of Complainant to Opposite Party No.1 was for tubactomy operation and there is any material on record to the effect that the Hospital where the Opposite Party No.1 has undertaken the tubactomy operation to the Complainant was not equipped with such facilities which are required to perform tubectomy operation. Further as the injury accidentally occurred to the bladder of the Complainant during said tubactomy operation was immediately repaired by the Opposite Party No.1 by suturing it properly it can not be felt as to the scarcity of any facility in said hospital where the Opposite Party No.1 performed tubactomy operation to the Complainant.
14. The decision of Honourable National Consumers Disputes Redressal Commission, New Delhi, in Geetha Sapra and others V/S Dr.B.L.kapoor Memorial Hospital and others reported in III (2006) CPJ Page 1 (NC) holds medical negligence when there was an inordinate delay in surgical procedure lead to irreparable damage to the patient before shifting to another hospital doesn’t appear to be any relevant application for its appreciation to this case of the Complainant as the said accidental injury to the bladder of the Complainant occurred during tubactomy operation performed by Opposite Party No.1 was immediately repaired by necessary suturing by the Opposite Party No.1 and there after the Complainant was shifted without any much delay to Government General Hospital, Kurnool for further better treatment in Government Ambulance under the due care and control of Dr.B.Rama Krishna Reddy (RW.3) and the condition of the patient was also said to be fair all through and the evidence of Rw.4 DR.K.Seetha Ramaiah as no where says the Complainant was brought in any serious condition to Government General Hospital, Kurnool but on the other hand says that she was brought for further treatment by Urologist , there appears any circumstance for inferring any medical negligence as contemplated under the supra stated decision.
15. The decision of Honourable Supreme Court in Achutrao Haribhau Khodwa and other V/S State of Maharastra and others reported in IV (2006) CPJ page 8(SC) holds Employer’s / State’s vicarious liability to the careless, negligent acts of the employee is established. In the present case of the Complainant except occurring an injury to the bladder during tubactomy operation to the Complainant nothing has happened to the Complainant as said injury was properly repaired by immediate suturing and the patient was taken appropriate further care by Urologist also being referred to Government General Hospital, Kurnool and was discharged after full recovery as in follow up check up also she did not have any complaints as per the evidence of RW.4. Hence there appears any relevant applicability of the above decision to the set of circumstance and facts of the Complainant’s claim to hold any vicarious liability of the Opposite Party 2 and 3 especially when any negligence of Opposite Party No.1 is made out.
16. In the case of claim against doctor on the allegation of negligence - as per the decision of Honourable Supreme Court in State of Punjab V/S Siva ram and others reported in AIR 2005 SC Page 3280 – burden of proof lies on claimant. As discussed above any such negligence being established but on the other hand there appears every bonafide deligencies of the Opposite Party No.1 in attending and rendering proper care to the Complainant from the Opposite Party No.1 as a prudent doctor towards a patient, the Opposite Party No.1 is not remaining guilty of any medical negligence of not exercising with reasonable competence and the skill which she did posses, to have any liability to the Complainant’s claim.
17. From the evidence of RW.4 Dr.K.Seetha Ramaiah and the evidence of RW.1 (opposite party No.1) it appears that the Complainant was not charged a single paise for the said operation and post operation treatment given till her discharge on13.9.2005 and on the other hand ambulance was provided for shifting the Complainant to Government General Hospital, Kurnool at Government cost and the attendant of the Complainant was also paid at Rs.100/- per day by the Government apart from bearing the medical bills of the Complainant also by the Government. While such is so, the Complainant furnishes any details of her incurred medical expenditure or contingent expenditure or files any cogent documentary record as to any such incurred expenditure. When there is either any medical negligencies and deficiency of service of the Opposite Party No.1 or any vicarious liability of the Opposite Party 2 and 3 is made out or any cogent material placed justifying the claim made by the Complainant, there appears any merit and force in the case of the Complainant for any entitleness of the claim against the opposite parties.
18. Consequently the case of the Complainant, for want of merit and force making any liability of the opposite parties, is dismissed with cost.
Dictated to the stenographer , transcribed by her, corrected and pronounced by her open bench on this the 30th day of August, 2007.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties :
RW.1. Deposition of RW.1,
dated 12.2.07
(Dr.A.Naga Rekha)
RW.2.Deposition of RW.2,
dated 2.3.07
(D. Rama Krishna
Reddy)
RW.3.Deposition of RW.3,dated 11.4.07
(Dr. B. Rama Krishna Reddy)
RW.4 Deposition of RW.4, dated 8.5.07
(Dr. K. Seetha Ramaiah)
List of exhibits marked for the complainant:-
Ex.A1. Certified copy of sterilization certificate,
dated 1.9.2005.
Ex.A2. Paper publication on dated 30.8.2005 of
Andhra Jyothi.
Ex.A3. Office copy of legal notice, dated 13.9.2005
To opposite party No.1.
Ex.A4. Reply, dated 13.10.2005 of opposite party No.1
List of exhibits marked for the opposite parties;
EX. B1. Certified copy of order in C.F.R.No. 1597/05
Of Judicial Magistrate of I st class, Koilakuntla,
Dated 28.4.2006.
Ex.B2. Case Sheet, Government General Hospital,
Kurnool, of Sujatha
Ex.B3. Sterilization case card of Government Hospital,
Koilakuntla, admission dated 29.8.2005.
Ex.B4. Out – patient in recorded, dated 29.8.2005 at
8.00 P.M by duty Assistant Surgeon of
Government General Hospital, Kurnool.
Sd/- Sd/-
MEMBER PRESIDENT
Copy to:-
1. Sri. M. Venkoba Rao, Advocate, Kurnool.
2. Sri. A. Sivaramanaiah, Advocate, Kurnool.
3. Smt. D.S.Saileela, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties
