COMPLAINT FILED: 28.06.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 24th DECEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1439/2008<br /> <br /> <br /> COMPLAINANT Sri. K. Guhanandam,<br /> S/o. N.M. Kalathi,<br /> Aged about 51 years,<br /> No. 105, 5th Cross,<br /> Omkaranagar,<br /> Arekere Village,<br /> B.G. Road,<br /> Bangalore – 560 076.<br /> <br /> <br /> Advocate (B.V. Pinto)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Dr. H.S. Venkatesha,<br /> Moorthy, KMC 16166,<br /> Sagar Apollo Hospital,<br /> 44/54, 30th Cross,<br /> Tilaknagar,<br /> Jayanagar Extn.,<br /> Bangalore – 560 041.<br /> <br /> <br /> 2. M/s. Sagar Apollo Hospital,<br /> 44/54, 30th Cross,<br /> Tilaknagar,<br /> Jayanagar Extn.,<br /> Bangalore – 560 041.<br /> <br /> <br /> Advocate (Dr. S.V. Joga Rao)<br /> <br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay the hospital expenses of Rs.4,50,000/- and compensation of Rs.20,00,000/- and for such other reliefs on an allegations of deficiency in service and medical negligence.<br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant had some hernia problem, in that context he contacted the OP.2 hospital for treatment for lap surgery. OP offered Rs.55,000/- as estimated cost. Complainant got admitted into the said hospital on 17.05.2006 and underwent lap surgery of incisional hernia on 18.05.2006, it is conducted by OP.1. Before operation OP failed to conduct the premedical tests. After the said procedure complainant developed critical heart problem, hence he was admitted into ICU on 24.05.2006. Due to the carelessness and negligence of the OP platelets count was reduced considerably. Then on 25.05.2006 OP.1 advised for emergency laparatomy, when it was done it is noticed 2 nos. of perforation in jejunum and gall bladder. The second surgery indicated failure of the first lapse surgery. Complainant took nearly two weeks for recovery. With all that he lost his weight considerably. Then sou-motto OP discharged him on 03.06.2006 by raising a bill for Rs.2,78,000/- as against Rs.55,000/- the earlier estimate. Due to the carelessness and negligence of the OP.1 in conducting the said surgery there was some infection, puss leakage, etc. So complainant could not get the expected result nor his ailment is cured. Under such circumstances he was advised to contact one Dr. Maya of Divakar’s Hospital on 16.09.2006. On diagnosis it was revealed reoccurrence of the hernia. He was advised with an abdomen belt, thereafter on 28.07.2007 he consulted Dr. G.T. Senthil Kumar of SPMM Hospital at Selam. Again he undergone another surgery, thereafter on 31.08.2007 he was discharged. Having contacted both the hospital he was again made to spend another lumpsum amount of nearly Rs.2,00,000/-. It is all because of the carelessness of the OP. Under such circumstances complainant felt both medical negligence as well as deficiency in service on the part of the OP. When his requests and demands made to OP to compensate him, went in futile, he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version independently, but the defence set out by both the OP’s is identical. It is contended by the OP that the complaint is barred by time. Of course they did admit that complainant underwent the surgery on 18.05.2006 which was uneventful. But suddenly he developed some problem, that is why he was shifted to ICU, then laparatomy was done, that surgery was also uneventful, thereafter he was discharged. There is no medical negligence muchless deficiency in service on the part of the OP. Before conducting the said procedure and the surgery complainant was subjected to x-ray, ECG, blood count, renal function test, etc. So the allegations of the complainant that no pre-surgery tests were conducted is false. Due to the unknown reasons complainant developed some chest infections and sepsis in the post operative period, hence he was shifted to ICU and after consultation of the Physician In-charge he was properly treated. Taking second opinion is a standard practice, it is in the better interest of the patient, that act of the OP cannot be termed as deficiency in service. The patient’s recovery from sepsis took usual duration and the weight loss is due to catabolic process which is normal in such treatment and situation. Complainant had intra abdominal infection, hence it is not possible to leave mesh back. Complainant underwent laparoscopic repair of his hernia. Extra diligence has been exercised with a high standard care and caution through the treatment. The treatment rendered, service extended is in according to the standard of medial practice that is recognized. The other allegations are false and frivolous. OP is not aware of complainant having taken treatment either at Diwakar Hospital or SPMM Hospital at Salem. What made him to take subsequent treatment and underwent the surgery is not known. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. The interrogatories were served and answered. Complainant filed an affidavit of a so called expert witness so also the OP. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service and medical negligence<br /> on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant underwent the lap surgery at OP.2 hospital conducted by OP.1 on 18.05.2006. The contention of the complainant that OP gave estimation of surgery cost for Rs.55,000/- has no basis. It is further alleged by the complainant that before conducting the said procedure and operation premedical tests were not conducted, on the other hand it is specifically denied by the OP. According to OP complainant was subjected to chest x-ray, ECG, blood count test, renal function test, etc. The case sheet and the records produced by the OP supports the said defence of the OP. Under such circumstances we do not find the substance in the allegations of the complainant that premedical tests were not conducted.<br /> <br /> 7. Of course complainant says after the said procedure he developed some complications and he was admitted into ICU on 24.05.2006 and his platelets count was reduced so also the weight. It is all because of the carelessness of the OP. In another breathe complainant says he started recovering very slowly after the said procedure and the surgery of laparatomy, but still he alleges the deficiency in service. The main grievance of the complainant is that OP charged Rs.2,78,000/- at the time of discharge on 03.06.2006 as against the estimated cost of Rs.55,000/-. The document produced by the OP goes to show the heads of the charges. Once when complainant availed the said services of the OP he is bound to pay. The discharge summary discloses that the complainant was stable. If it was not a fact there was no need for the OP to discharge the complainant.<br /> <br /> 8. Of course OP has contended that the said procedure and laparatomy was uneventful. But due to some unknown reasons he developed symptoms of chest infection and sepsis in the postoperative period, that is why a Physician was consulted, he was taken to ICU and proper treatment was given. In our considered view taking of the second opinion will be in the better interest of the patient only. It is a standard practice depending on the situation and the condition of the patient. We find force in the contention of the OP that they did take due care and diligence in extending their service while conducting the said surgery. One perforation was found in small intestine, gall bladder was normal. A thorough examination of the peritoneum was also done. The recovery of the patient from the sepsis took sometime and when the patient is suffering from such kind of ailment there is every possibility of loss of weight may be due to catabolic process, which can be said that it is normal under the situations. So we do not find force in the allegation of the complainant that due to the carelessness and negligence of the OP he lost his weight.<br /> <br /> 9. On the perusal of the hospital records, complainant who was treated for intra abdominal infection a rare possibility to leave the mesh back. According to OP it would have been wrong to leave the mesh behind. When the complainant underwent laparoscopic repair of his hernia 2mm perforation that he had may be a recognized problem in a kind of such surgery. This act of the OP.1 is corroborated and supported by the expert witness examined on behalf of the OP that is Dr. Aashish R Shah, MBBS., MS., DNB., FRCS(Glasgow), a Consulting Surgeon in the Wockhardt Hospital. A highly experienced and qualified expert witness has supported the treatment and the procedure that is followed by OP.1 while treating the complainant. There is nothing to discard the sworn testimony of this expert witness. According to the expert witness there is a proper and standard care that is taken and no such deviation is made from the established and the accepted surgical practice at any point of time. No body has said that the procedure conducted and surgery done by OP.1 is wrong. When that is so, we do not find force in the allegations of the complainant that there is a deficiency in service on the part of the OP in treating him.<br /> <br /> 10. As against this unimpeachable evidence of the OP and the expert witness complainant has also got filed the affidavit of one Dr. S. Selvakumar a Bachelor of Medicine and Bachelor in Surgery having only 3 years of experience serving in ESI Hospital. With due respect to the said witness, having taken note of the facts and circumstances of the case and his experience, he cannot be said as expert witness in the field. So that affidavit will not come to the aid of complainant to substantiate his so called allegations made against the OP’s. When we go through the answers given to the interrogatories, about 35 years back this complainant undergone laparatomy for some food problem. After the discharge from OP hospital complainant did not have any such problem for 3 months and after 3 months he took the treatment at Dr. Maya of Divakar’s Hospital. The affidavit of Dr. Maya of Divakar’s Hospital is not filed. For what ailment the said treatment is taken is not known. Then he went to another hospital at Salem SPMM. The so called Doctors Dr. G.T. Senthil Kumar and Dr. Rajan Dravid who treated him have not filed the affidavit to substantiate the allegations of the complainant.<br /> <br /> 11. Complainant strangely answers the interrogatories stating that the re-occurrence of hernia with mesh backup is not related to this case. Further his answer to the question that what made him to approach Coimbatore Hospital for post operative follow up, he says it not related for this case. Then what is the problem he had so as to approach the above said two hospitals after lapse of 3 months from the date of discharge from the OP hospital and for what ailment is not known. So complainant is not very much sure about the so called medical negligence muchless deficiency in service, which he alleges against the OP. On the other hand we are satisfied that the treatment given by the OP is in accordance with the accepted medical norms. The fact that OP.1 is a highly qualified experienced Doctor in the field and OP.2 is a recognized standard hospital with all infrastructure, facilities to treat such kind of ailment is not at dispute. Under such circumstances when we compare the expert evidence filed on behalf of OP and the complainant, the complainant expert affidavit cannot be believed. The allegations made by the complainant appears to be baseless. What made the complainant to wait for 2 years to file this complaint is not known. Much water might have been flown during this long lapse of time. <br /> <br /> 12. OP1 is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor is not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field. The evidence has come that OP has acted in accordance with the practice regularly accepted and adopted.<br /> <br /> 13. Medical negligence is to be established, it can’t be presumed. A Doctor has discretion in choosing the treatment with regard to ailment and emergency in the better interest of the patient. The fact and circumstances of the case before us, show that OP.1 has attended the patient with due care, skill and diligence. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP’s. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. <br /> <br /> 14. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. A surgeon performing surgery is not gifted with an extraordinary skill nor he is expected to perform miracles. What is expected of him is whether the procedure followed by him is generally acceptable to the medical profession. The Law does not require of a professional man that he be a paragon combining qualities of polymath and prophet. A complaint regarding medical negligence should allege and support with expert evidence as to what was done which should not have been done or what was not done which should have been done. But it is missing in this complaint.<br /> <br /> 15. In view of the discussions made by us in the above said paras, we find the complainant has failed to establish the deficiency in service and medical negligence on the part of the OP. Under such circumstances he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 24th day of December 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />