IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 25th day of September, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C.No.54/2013 (Filed on 25.04.2013)
Between:
Vinod. C.G,
Chirapurayidathil Veedu,
Thiruvalla Village,
Thiruvalla Taluk,
Pin – 689 101.
(By Adv. Arun Prakash) …. Complainant
And:
1. Dr. Joseph Manakkan,
Medical Mission Hospital,
Thiruvalla – 689 101.
2. Giboy Varghese,
Administrator,
-do. –do.
(By Adv. G.M. Idiculla for OP’s 1 & 2)
Addl.3. The Branch Manager,
New India Assurance Co.,
Salim Building, Near HPO,
M.C. Road, Changanassery,
Kerala – 686 101.
(By Adv. P.D. Varghese) …. Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he is working as a Civil Police Officer. The 1st opposite party is a doctor working at the 2nd opposite party’s hospital and the Addl. 3rd opposite party is an insurance company who had given insurance policy to the 2nd opposite party.
3. The complainant consulted the 1st opposite party for complaints of kidney stone and after consultation the 1st opposite party advised the complainant to undergo a surgery for removing the kidney stone. Accordingly to the complainant was admitted by the 1st opposite party in the 2nd opposite party hospital on 22.09.2012 and the surgery was done by the 1st opposite party on 24.09.2012. After the surgery also the complainant felt pain and other physical distresses which was brought to the notice of the 1st opposite party. At that time, the 1st opposite party told the complainant to continue the medicines. Thereafter the complainant was discharged on 26.09.2012. Even after the discharge and using the medicines the pain and other discomforts continued. So the complainant went to Thiruvalla Tricare Diagnostic Centre and taken an X-ray on 01.10.2012 and they advised the complainant to consult the 1st opposite party with the said X-ray, as the X-ray shows kidney stone and a stent in the stomach of the complainant. So the complainant again approached the 1st opposite party and showed the X-ray. After examining the X-ray and the complainant, 1st opposite party told the complainant that the surgery was not successful and such type of failure are common and another surgery is required for removing the kidney stone at the complainant’s expense. For the 1st surgery, the 2nd opposite party collected an amount of Rs.19,640/- from the complainant. But the surgery was failure. So the complainant met the 2nd opposite party and told about it and as per the direction of the 2nd opposite party complainant made a written complaint on 04.10.2012 in this regard. But the 2nd opposite party has not done anything positive in respect of the complainant’s written complaint. So the complainant went to Kottayam Medical College Hospital and consulted Dr. Suresh Bhat, who is working as urologist. After the consultation, he referred the complainant to Punnapra Co-operative Hospital for removing the complainant’s kidney stone as the equipment for removing the kidney stoneat Kottayam Medical College is not working. Accordingly the complainant got admitted on 16.10.2012 at Punnapra Co-operative Hospital as I.P.No.5872 and Dr. Mohan. P. Sam, a known urologist, of that hospital done the surgery and completely removed the complainant’s kidney stone and for the said surgery and other treatments they have charged Rs.7,607/- from the complainant. He continued his treatment there and stent inserted by the 1st opposite party was removed at Punnapra Hospital after 3 weeks from the 2nd surgery at the said hospital. The stent inserted by the 1st opposite party was the causes for the complainant’s complications which resulted in mental agony and physical pains to the complainant. In this matter the complainant sent a legal notice to the opposite parties on 01.11.2012 but they have not done anything positively. Because of the above said acts of the 1st and 2nd opposite parties, the complainant had suffered a lot and the said acts of the 1st and 2nd opposite parties is a clear deficiency in service and opposite parties are liable to the complainant for the same. Hence this complaint for the realization of Rs.19,640/- collected by the 2nd opposite party with 12% interest from 05.10.2012 and for the realization of Rs.7,607/- paid by the complainant to Punnapra Hospital and its interest at the rate of 12% from 18.10.2012 along with compensation of Rs.2 lakhs and costs from the opposite parties.
4. 1st and 2nd opposite parties filed their version with the following main contentions: They admitted the treatment of the complainant but they denied the allegations raised by the complainant against them. The allegation that stone was not removed and it was confirmed by the patient after 01.10.2012 is not correct. It was only a fragmented stone after Lithotripsy which was usually happened. So he was asked to come another procedure like Extracorporial Shock Wave Lithotripsy (ESWL). But the complainant failed to respond. The allegation that the surgery was not successful is false. According to the opposite parties, during surgery one fragmented stone has gone up which is likely to happen in a procedure like this, since the upper part of the ureter is dilated. When there was a fragmentation of stone which is likely to occur, the only option left is to take out the fragmented stone. That was all that suggested by the 1st opposite party. Opposite parties admitted the receipt of the complaint from the complainant and it was so obtained for retaining the good relationship. On getting the said complaint, the 1st opposite party duly told the complainant that the fragmented stone will easily be removed by the doctor but strangely the patient without heading to the advise did not turned up for the same. The further treatments underwent by the complainant is not known to the opposite parties. Insertion of DJ stent is usual and it is for expelling the fragmented stone. There is no deficiency in service from the part of the opposite parties and the opposite parties had given the best treatment to the complainant. Therefore, the petitioner is not entitled to get any reliefs as prayed for in the complaint. Further, as per the insurance policy issued by the 3rd opposite party, opposite parties are indemnified as the policy in question is valid during the period of the complainant’s treatment. With the above contentions, 1st and 2nd opposite party prays for the dismissal of the complaint.
5. Additional 3rd opposite party filed version with the following contentions. They admitted the issuance of an insurance policy in the name of M/s. Thiruvalla Medical Mission, Hospital Centres at Thiruvalla, Vazhoor and Mannamaruthy which is valid from 08.04.2012 to 07.04.2013. But they denied that they had not issued a policy in the name of 1st and 2nd opposite party. Under the said circumstances, they denies the liability to indemnify the 1st and 2nd opposite party. On the basis of the version of the 1st and 2nd opposite parties, additional 3rd opposite party also contended that there is no deficiency in service from the part of the 1st and 2nd opposite parties and there is no medical negligence from the side of the 1st and 2nd opposite parties as alleged by the complainant. Further the complainant or the 1st and 2nd opposite parties never ledged a claim in connection with this case and they have not repudiated any claim in this regard and as such there is no deficiency of service from their part and there is no cause of action to the complainant against additional 3rd opposite party. With the above contentions, additional 3rd opposite party also prays for the dismissal of the complaint.
6. In reply to the amendment in the version of Addl. 3rd opposite party, complainant filed a replication. In the replication he stated that the complainant was not aware of the insurance of opposite parties 1 and 2 at the time of filing the complaint and he came to know the same only after getting the version of opposite parties 1 and 2. He further stated that he is not aware of the agreement between opposite parties 1 and 2 and Addl. 3rd opposite party and they have not filed any such agreement before this Forum. Therefore, he prays for discarding the said statements in their version.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral deposition of PWs.1 to 5, DW1 and Exts.A1 to A19 and B1. After closure of evidence, both sides filed their argument note and they were heard.
9. The Point:- The complainant’s case is that he had undergone a surgery for removing his kidney stone at the 2nd opposite party hospital on 24.09.2012. The surgery was conducted by the 1st opposite party and he was discharged on 26.09.012. Before the discharge the complainant told 1st opposite party about his pain and other discomforts. But the 1st opposite party told the complainant to continue the medicines and pain and other discomforts will be removed on using the medicines. So he continued the medicines. But there was no relief for his pain and other discomforts. So the complainant went to Tricare Diagnostic Centre, Thiruvalla and took an X-ray on 01.10.2012. After examining the said X-ray they told the complainant that the kidney stone is still there and there is a stent in his stomach and they advised the complainant to consult the 1st opposite party. Accordingly, the complainant consulted the 1st opposite party and showed the X-ray. After examining the X-ray 1st opposite party told that the surgery was not successful and hence stone is still there and such type of incidents are usual and advised the complainant to undergo another surgery for removing the stone. Thereafter the complainant consulted a doctor at medical College Hospital, Kottayam who referred the complainant to Punnapra Co-operative Hospital where he had undergone a surgery on 16.10.2012. In the said surgery the kidney stone is removed and after 3 weeks from the date of surgery the stent inserted by the 1st opposite party was also removed. According to the complainant, the 2nd surgery was necessitated due to the negligent treatment of the 1st opposite party and his pain and other sufferings are due to the improper and negligent treatment of the 1st opposite party. For the treatment at the 2nd opposite party’s hospital they charged the complainant for Rs.19,640/- and for the treatment at Punnapra Co-operative Hospital he is charged with Rs.7607/-. In the meantime, the complainant made a written complaint to the 2nd opposite party and issued legal notices also to the opposite parties. But none had any positive result. The acts of the 1st and 2nd opposite parties are deficiency in service and hence they are liable to the complainant for the same. Therefore, the complainant prays for allowing the complaint.
10. In order to prove the case of the complainant, complainant filed a proof affidavit in lieu of his chief examination along with 19 documents. On the basis of the proof affidavit, complainant was examined as PW3 and the documents produced are marked as Exts.A1 to A19. Apart from the complainant, 2 doctors, one radiologist and another independent witness are also examined as PWs.1, 2, 4 and 5. Ext.A1 is the referral letter to Punnapra Co-operative hospital issued by Dr. Suresh Bhat of Medical College Hospital, Kottayam. Ext.A2 and A3 are the X-rays dated 01.10.2012 and 03.11.2012 taken by the Tricare Diagnostic Centre, Thiruvalla. Ext.A4 is the O.P. card issued from the 2nd opposite party hospital. Ext.A5 is the discharge summary dated 26.09.2012 issued from the 2nd opposite party hospital in respect of the complainant’s treatment. Ext.A6 and A7 are the bills issued from Tricare Diagnostic Centre, Thiruvalla in respect of Ext.A2 and A3 X-rays. Ext.A8 is the inpatient bill dated 26.09.2012 issued from the 2nd opposite party hospital in respect of the complainant’s treatment. Ext.A9 is the copy of the complaint dated 04.10.2012 of the complainant addressed to the 2nd opposite party. Ext.A10 is the consultation letter dated 13.10.2012 issued by Dr. Mohan. P. Sam. Ext.A11 is the O.P. card issued from Punnapra Co-operative Hospital. Ext.A12 is the discharge card dated 17.10.2012 issued from Punnapra Co-operative hospital in respect of the complainant’s treatment there. Ext.A13, bills (7 in number) issued from Punnapra Co-operative Hospital in respect of the complainant’s treatment. Ext.A14 is the unclaimed registered notice addressed to the 1st opposite party. Ext.A15 is the copy of the advocate notice dated 01.11.2012 addressed to the 2nd opposite party. Ext.A16 is the postal receipt in respect of Ext.A15. Ext.A17 is the reply letter dated 14.11.2012 issued by the 2nd opposite party in respect of Ext.A15 notice seeking time for detailed reply. Ext.A18 is the postal receipt in respect of Ext.A14 unclaimed registered notice. Ext.A19 is the postal acknowledgment card in respect of Ext.A15 notice.
11. On the other hand, the contention of the 1st and 2nd opposite parties is that there is no negligence or deficiency in service from their part as alleged by the complainant in connection with the treatment of the complainant. The procedure done by the opposite parties is Lithotripsy and during the procedure one fragmented stone has gone up which is likely to happen in a procedure like this and the insertion of stent is the part of the procedure and is for expelling fragmented stones. What all treatments given by them to the complainant is usual and normal and are required in the case of the complainant. The treatment will only be completed by follow ups and by removing the stent. When the complainant told about his discomforts to the 1st opposite party at his private clinic, the 1st opposite party advised the complainant to come for another procedure like ESWL at the hospital. But the complainant failed to respond. The subsequent treatments claimed by the complainant is not aware of the 1st and 2nd opposite party. Since the complainant has not turned up for further procedures which are necessary for complete recovery, there cannot be any negligence or deficiency in service from their part and hence the complainant is not entitled to raise any allegation of negligence and deficiency in service against the opposite parties. The written complaint and the legal notices issued by the complainant are admitted. But the complainant did not responded to the advices given by the opposite parties in respect of the written complaint. The alleged complications of the complainant is medically accepted and in such cases the treated doctors will perform necessary procedures for curing the complications if any. But in this case, complainant neglected the advice of the opposite parties. Further, the subsequent treatment obtained by the complainant is not a treatment for any negligent treatment undergone previously. What all treatments obtained by the complainant from other hospitals are the continuation of the treatment given by the opposite parties. With the above contentions, opposite parties argued for dismissing the complaint as there is no negligence or deficiency in service on their part.
12. In order to prove their contentions, 1st opposite party filed a proof affidavit in lieu of his chief examination for and on behalf of the 2nd opposite party also along with one document. On the basis of the proof affidavit, he was examined as DW1 and the documents produced is marked as Ext.B1, which is the copy of the professional indemnity insurance policy in favour of the opposite parties issued by New India Assurance Co. Ltd. which is valid from 08.04.2012 to 07.04.2013.
13. Additional 3rd opposite party’s contention is that as there is no deficiency in service from the part of the opposite parties as per their version etc, the complainant is not entitled to get any claim from the 1st and 2nd opposite party, and as such additional 3rd opposite party is not liable to the complainant. But they have not adduced any evidence in their favour.
14. On the basis of the contentions and arguments of the parties, it is seen that the parties have no dispute with regard to the treatment of the complainant at the 2nd opposite party’s hospital. So the only question to be considered is whether there is any negligence or deficiency in service from the part of the 1st and 2nd opposite parties in respect of the complainant’s treatment. According to the complainant, there was negligence and deficiency in service in the treatment which compelled him to undergo further treatment. But according to the opposite parties, there is no negligence or deficiency in service from their part and the complainant’s further treatment is not due to the complications occurred out of a negligent treatment as alleged by the complainant. The pain and other discomforts alleged by the complainant is usual and common in the procedure done to the complainant which could be cured only on follow ups and on compliance of the treated doctors advises. In this case, the complainant has not turned up for further follow ups as against the advice of the 1st opposite party. What all treatments obtained by the complainant from other doctors are only the treatments to be continued after the discharge of a patient like the complainant.
15. It is pertinent to note that the complainant had no case that the 1st opposite party is not qualified and the 2nd opposite party had no facilities for the treatment of the complainant. Further, the complainant had not adduced any evidence to show that the procedures adopted by the 1st opposite party is an unnecessary and unwanted and not medically accepted and the pain, discomforts and inconveniences of the complainant subsequent to the surgery was caused due to the negligent treatment of the 1st opposite party and the subsequent treatment was for curing the complications occurred due to the negligent treatment given by the opposite parties. Further, in the absence of the complainant’s treatment records from the 2nd opposite party we cannot say anything about the treatment of the complainant at the 2nd opposite party’s hospital. What prevented the complainant from bringing the said records before the Forum? In the circumstances, we are constrained to look into the oral testimony of the witnesses particularly of the experts. PW1, Dr. Suresh Bhat, Professor of Urology, Medical College Hospital, Kottayam deposed before this Forum that when Lithotripsy is done on a patient there is a possibility of ureteric stone getting fragmented and the stone going into the kidney is possible and the complainant approached him for the said complication. PW2, Robi. P. Chacko, Radiologist deposed before this Forum that two X-rays (Ext.A2 and A3) of the complainant was taken in his firm. The 1st X-ray dated 01.10.2012 (Ext.A2)showed DJ stent and fragmented stone at lower pole calyx region of left kidney and the X-ray dated 03.11.2012 (Ext.A3) also shows the stent as earlier but there is no stone. He further deposed that in Lithotripsy procedure there is every chance for migration of fragmented stones to the other parts of the kidney and the insertion of DJ stent is intended for draining out the fragmented stones. PW5, Dr. Mohan. P. Sam, Professor of Urology Medical College Hospital, Kozhikode, who had given the 2nd treatment to the complainant at Punnapra Co-operative Hospital deposed that he had done Extra Corporeal Shock Wave Lithotripsy (E.S.W.L) to the complainant on 16.10.2012 and discharged him on 17.10.2012 with medicines for two weeks and on 03.11.2012 the patient came and after examination the stent was removed. He further deposed that the complainant approached him for the remaining treatment of his previous treatments done elsewhere and the treatment given by him is not for the treatment of any previous negligent treatment and he also deposed that insertion of stent is for draining out the fragmented stone.
16. The above depositions clearly shows that the treatment given by the 1st opposite party is not negligent and the subsequent treatment of the complainant at other hospital is only the continuation of the 1st treatment and the said treatment was advised by the 1st opposite party at the time of the complainant’s visit to the 1st opposite party. In the circumstances, we find no negligence or deficiency in service from the part of the 1st and 2nd opposite party. Therefore, this complaint is not allowable.
17. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 25th day of September, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member I) : (Sd/-)
Smt. Sheela Jacob (Member II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Suresh Bhat
PW2 : Roby. P. Chacko
PW3 : C.G. Vinod
PW4 : Aju Abraham
PW5 : Mohan. P. Sam
Exhibits marked on the side of the complainant:
A1 : Referral letter issued by Dr. Suresh Bhat of Medical
College Hospital, Kottayam to Punnapra Co-operative
hospital.
A2 & A3 : X-rays dated 01.10.2012 and 03.11.2012 taken by
the Tricare Diagnostic Centre, Thiruvalla.
A4 : O.P. card issued from the 2nd opposite party hospital.
A5 : Discharge summary dated 26.09.2012 issued from the 2nd
opposite party hospital.
A6 & A7 : Bills issued from Tricare Diagnostic Centre, Thiruvalla
in respect of Ext.A2 and A3 X-rays.
A8 : Inpatient bill dated 26.09.2012 issued from the 2nd
opposite party hospital.
A9 : Copy of the complaint dated 04.10.2012 of the
complainant addressed to the 2nd opposite party.
A10 : Consultation letter dated 13.10.2012 issued by Dr.
Mohan. P. Sam.
A11 : O.P. card issued from Punnapra Co-operative Hospital. A12 : Discharge card dated 17.10.2012 issued from Punnapra
Co-operative hospital.
A13 : Bills (7 in number) issued from Punnapra Co-operative
Hospital.
A14 : Unclaimed registered notice addressed to the 1st opposite
party.
A15 : Copy of the advocate notice dated 01.11.2012 sent to 2nd
opposite party.
A16 : Postal receipt of Ext.A15.
A17 : Reply letter dated 14.11.2012 issued by the 2nd opposite
party.
A18 : Postal receipt of Ext.A14.
A19 : Postal acknowledgment card.
Witness examined on the side of the opposite parties:
DW1 : Dr. Joseph Manak
Exhibits marked on the side of the opposite parties:
B1 : Copy of insurance policy.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Vinod. C.G, Chirapurayidathil Veedu,
Thiruvalla Village, Thiruvalla Taluk,
Pin – 689 101.
(2) Dr. Joseph Manakkan, Medical Mission Hospital,
Thiruvalla – 689 101.
(3) Giboy Varghese, Administrator, -do. –do.
(4) The Branch Manager, New India Assurance Co.,
Salim Building, Near HPO, M.C. Road,
Changanassery, Kerala – 686 101.
(5) The Stock File.
