JUDGMENT

            The complainant  has filed this complaint u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service and medical negligency in not giving him First Aid treatment and causing the death of her husband. Hence, prays for the compensation of  Rs.18,00,000/- towards medical negligency along with compensation of Rs.50,000/- towards physical and mental agony and Rs.50,000/- towards deficiency in service and Rs.5,000/- towards miscellaneous and litigation expenses. 

             Brief averments of the Complaint are as under;

            2.  That, the complainant alleged that the complainant’s husband Chandragouda S/o Sanganagouda on 01.05.2015 had slipped and fell in his home. At that time, he got injury to his ear and got scratches to his leg, stomach. On that day, only the complainant took her husband to the OP hospital for treatment. The complainant further alleged that after paying the consultant fee in the hospital instead of giving first aid treatment to the patient, the OP had referred to go for C.T. scan and to scan the brain. The complainant took her husband to the C.T. scan and in the C.T. scan only the complainant husband died on that day only.

            3.         The complainant further alleged that the if the OP had given first aid treatment and then if he had send them to C.T. scan, her husband would have been alive. Due to the negligence of the OP, the complainant husband succumbed to death. The cause of death of her husband is the because of the negligency of the OP.

            4.         The complainant further alleged that the complainant husband was an agriculturist and now after his death there are no one in this home to perform the agricultural activities and in this way their financial position has come down.

            5.         The complainant further alleged that she issued a legal notice to the OP on 07.09.2015 and the said notice is served on him and the OP has given reply notice to her and the reply is not satisfied. Hence, prays for compensation Rs.18,00,000/- for medical negligency by the OP along with  compensation of Rs.50,000/- towards physical and mental agony and Rs.50,000/- towards deficiency in service and Rs.5,000/- towards miscellaneous and other litigation expenses as prayed above.

            6.         This Forum after admitting the complaint, the notice was issued to the OP and the said notice was served upon him. The OP appeared before the Forum along with their counsel and filed Vakalatnama and Written Version to the main petition.

            7.         The Objection of the Opponent:-

            The OP files his Written Version contending interalia that he has denied all the averments with respect to the allegation made.

            The OP further submitted that the contents mentioned in Para No.2 are all false on 01.05.2015. Chandragouda S/o Sanganagouda approximately at about 2.30 pm to 3.00 pm they had brought him to the Hospital and informed him that the said Chandragouda had fallen from the vehicle and had sustained injuries near the left ear and back side of left ear, he had suffered head injuries. The OP after examining the patient, came to know that the patient’s mentally imbalance was (disoriented). The OP had a doubt that there may be bleeding in the brain, so in order to give him the correct treatment and for the welfare of the patient, the OP referred him to C.T. Scan and asked them to scan the patient and come and then will give further treatment. After examining the patient only it was referred him to the C.T. Scan. Because, if there was a bleeding in the brain, then the treatment for that does not come under the preview of the OP.     

            8.         The OP further submitted that without knowing the patients disease if the treatment is given then it is a crime and negligency. The decision of sending the patient to the C.T. Scan by the OP is correct. The allegation made by the complainant that the OP without giving first aid to the patient, he sent him to the C.T. Scan is totally false and far away from the truth. Due to the above said reason, there is no negligency or laziness in the duty of the OP and hence the complaint is liable to be dismissed.

            9.         The OP further submitted that only few subjects to be answered that is when the OP in his reply notice asked the complainant to send the concerned documents and details for verification, inspite of the request made by the OP, the complainant did not send the documents or the details. The OP further submitted that without any reasons, the complainant is harassing him and with an intention of grabbing money a false complaint has been filed against the OP and in this way they are making hindrance in his duty.

            10.       The OP further submitted that in Para No.5, the contents is about the jurisdiction of the Hon’ble Forum and this may not be answered. But, the complainant in his complaint praying for the compensation amount and the court fee paid by them is not satisfiable and not correct in the eye of law.  So on this ground also the complaint is liable to be dismissed with cost.

            11.       On the basis of the above pleadings, the following points have been framed: 

POINTS

1.  Whether the complainant proves that there is medical negligency in causing the death of her husband by not giving first aid?
2. Whether the complainant is entitled for the relief sought for?

3. What order?

12.   To prove the case of the complainant, the complainant herself examined as PW1 and she got marked documents as per Ex.A.1 to Ex.A.7 and closed their side evidence.  The OP himself examined as RW1 and submitted that there are no documents from this side and closed their side evidence.

13.    Heard the arguments of both counsel and perused the records.

8.  Our findings on the above points are as under;

Point No. 1 :   In the Affirmative,

Point No. 2 :  In the Affirmative

                  Point No. 3 :  As per final Order for the following

REASONS

14.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

15.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, it is the case of the complainant alleging medical negligency in not giving First Aid to the complainant’s husband and causing his death and deficiency in service. There is no dispute regarding that the complainant had taken her husband to OP-Hospital for treatment after he slipped down in his home. It is also admitted by the OP that after examining the patient, he was referred for a C.T. Scan.

16.       To prove the case of the complainant, the PW-1 has reiterated the complaint averments in her examination in Chief and in support of her case. She has produced the documents pertains to the letter issued by the OP for C.T. Scan of the brain i.e. EX A1. EX A1 clearly reveals that the name of the complainant husband is written and he was referred to C.T. Scan of the brain. The Death Certificate is marked as EX A2 and EX A4 is the legal notice issued to the OP. PW-1 has averred and deposed that her husband had slipped down in home and had suffered with severe injuries. She took him to the OP hospital for treatment. The OP instead of giving First Aid referred immediately for C.T. Scan of the brain.

17.       The First Aid means when a patient comes to him with such type of injuries, the first and foremost the responsible doctor has to control the airways, bleeding and circulation of the blood. He has to stabilize the patient respiration and see that any drips or Antibiotics or oxygen is given to him. At the same time, he has to see that whether the patient is sinking due to the bleeding then he has to pump his heart by pressing it or else if he does not come to a conclusion then immediately he has to refer to the Higher Center. This is one of the process of the First Aid to be given to a patient who has suffered with injuries and bleeding.

18.       Further, RW-1 has deposed as per his specific defence set up in his Written Version that when the patient was brought to him at around 2.30 – 3.00 PM after examining him the OP got a doubt that in brain there may bleeding. So he immediately referred for a C.T. Scan of the brain. But, the OP neither in his written Statement nor examination in Chief has not at all mentioned whether he has given treatment to the patient or not. He formally denied stating that he saw bleeding on the back of ear and he referred for a C.T. Scan brain. The OP has not at all mentioned anything that what type of treatment he has given to the patient soon after he was brought to the hospital. The OP being a ENT speciality he himself as admitted that he saw bleeding back of the ear, but to that extent did he give any treatment to the patient, he did not utter a single word on it that what type of First Aid he has given.   

19.       Whereas in the cross of RW-1 has deposed that after examining the complainant husband there is no documents to show that he has referred to Higher Center C.T. Scan. Further, it is also true that no documents has been produced to show that First Aid is given there is no specific mentioning about it either in Written Version nor examination in Chief of RW-1. But, on perusal of EX A1, it is crystal clear that he has referred for a C.T. Scan of the brain. There was no any document to show that First Aid has been given to the patient. Further, the OP has not said to what extent the first aid treatment is given, but only as per orally he deposed that after examining him he has referred to C.T. Scan, believing his the Version with respect to the complainant husband that he has given First Aid to the aforesaid patient is not justifiable one. Hence, his Version is not believable with respect to specific defence set up by the OP. But to substantiate the said First Aid is given when there is no cogent documents have been produced by the said OP, the question of considering that the OP has given First Aid is not believable.

20.       The counsel for the complainant has relied citations reported in I (2015) CPJ 79 (TN) in R.Lakshmi V/s Royapettah  Government Hospital which is passed by the Hon’ble Tamilnadu State Consumer Disputes Redressal Commission, Chennai. It reads as under:

 (i) Consumer Protection Act, 1986 – Sections 2 (1) (d), 2 (1) (g), 14 (1) (d), 17 (1) (a) (i) – Medical Negligence – Treatment for wrist injury – Gangrene – Amputation of hand – Consumer – Contention, Opposite Party is Government hospital – Not accepted – Act seeks to protect the interest of consumers as a class – Even if doctors are rendering services free of charge to patients in government hospital provisions of Act will apply because expenses of running said hospitals are met by appropriation of fund from taxes of tax payers – Doctor applied plaster of paris but did not care for hole injury which amounts to negligence – Had doctors taken proper care it could have been averted – Boy lost his left hand and would suffer loss throughout his life.  

(ii) Doctrine of Respondent Ipsa Loquitur – Medical negligence – Burden of proof – In case when negligence is evident the principle of respondent ipsa loquitur operates and complainant does not have to prove anything as thing proves itself – In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

   It is held that in Medical negligence the burden of proof lies on the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

21.       The facts and circumstances of the case in hand, the very respondent have at one breath contended that First Aid has been given. But, the respondent here utterly failed to prove that he has taken care of the patient.

22.       Therefore, the contention which has been taken by the respondent is vague one and therefore, the said defence setup by the respondent is not justifiable one.

23.       The respondent has not produced any other cogent and corroborative evidence except putting suggestion that First Aid was given. The OP has further averred that a letter is given for a C.T. Scan. But their letter does not prove that First Aid is given. The respondent/OP has not at all produced any documents or prescription that First Aid is given and no explanation is furnished. Under these circumstances, an adverse inference can be drawn holding that the OP has not at given First Aid but instead only referred to C.T. Scan which was not necessary at the first instance. Such being the fact what prevented him to not to mention the First Aid treatment, in his Written Version and Examination in Chief. Hence, if these facts are taken in to consideration definitely it goes to cut the very root of the OP case because there is nothing proved or is on record that he has given first aid.

24.       The counsel for the complainant has relied upon the citation reported in 2011 (3) CPR 484 (NC) which is passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in M/s Nanjappa Hospital V/s Karnataka. It reads as under:   

“Consumer Protection Act, 1986 – Sections 2 (1) (g), 2 (1) (o), 15, 17, 19 and 21 – Medical services – Medical negligence – Complaint allowed by State Commission – Hysterectomy operation for removal of uterus – Secondary suturing performed under general anesthesia due to post operational bleeding – Allegation of medical negligence against OPs stands fully proved and there was no need for any further expert opinion – It is a fit case where principle of Respondent Ipsa Loquitur would be fully applicable – State Commission was right in holding OPs negligent in the matter.”

The facts and the circumstances of the case in one hand and the facts and the circumstances of said citation are applicable.

25.       On the contrary as per the oral evidence couples with the documentary evidence, the complainant has proved that the OP has not given first aid and caused the death of the complainant husband and the said fact has been clearly disclosed which have been already discussed supra.

26.       Hence, in the light of above observations, the complainant has proved that the OP has not given first aid and caused the death. Hence, in the light of above observations, we constrained to hold Point No.1 in the Affirmative.

27.       In the light of observations made by us on Pont No.1, since the complainant has filed this complaint for the medical negligency by the OP. In the light of observations made by us while answering Point No.1 in the affirmative, the present complainant is entitled for the relief as prayed for. Accordingly, we constrained to hold Point No.2 in the Affirmative.

28.  POINT No. 3 :-  In view of the above discussion and findings, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby partly allowed.
2. The OP is directed to pay Rs.1,00,000/- (Rupees one lakh) for the complainant for the Medical negligency along with compensation of Rs.2,500/- (Rupees two thousand five hundred) for physical and mental agony and Rs.2,000/- (Rupees two thousand) for deficiency in service and Rs.2,500/- (Rupees two thousand five hundred) for litigation expenses to the complainant within one month from the date of receipt of this Order, failing which 12% p.a. interest will be charged from the date of filing of complaint, till realization.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 10^th day of May, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.