Date of Filing : 25.11.2009
Date of Order : 28.01.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 28th JANUARY 2012
PRESENT
Sri. T. RAJASHEKHARAIAH …….. PRESIDENT
Sri. T.NAGARAJA …….. MEMBER
Smt. K.G.SHANTALA …….. MEMBER
Consumer Complaint No. 189 / 2009
Smt. K.S. Kusuma,
D/o. V.K. Srirama,
Aged about 27 years,
R/o. Kilaripet,
Kolar Town.
(By Sri. M. Manjunatha, Adv.) ……. Complainant
V/s.
Dr. Krishnaiah Setty,
Urologist, Devaraj Urs Medical College,
Tamaka,
Kolar.
(By Sri. A.V. Ananda, Adv.) …… Opposite Party
ORDER
By Sri. T. RAJASHEKHARAIAH, PRESIDENT
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986.
2. The Complainant contends that she was having abdominal pain and she took treatment with OP2 who is an Urologist. It is stated that during February 2007 the Complainant approached OP for treatment and OP referred the Complainant to Balaji Scanning Centre for scanning and after scanning it was known that both the Kidneys were normal in size and right kidney was consisting of calculi in pelvis measuring 8 mm. OP informed that the said calculi present in the right Kidney may be removed by way of Lithotripsy and the OP started the treatment during March 2007. For that purpose Complainant was admitted at Manjunath Health Care and one ESWL sitting was done. Subsequently, OP has done more than 15-20 ESWL sitting to the Complainant and assured the Complainant that all the calculus were cleared and she will became healthy. After 6 months, Complainant suffered with same problem as she suffered earlier, again she visited the OP and complained the problem. After examination, OP referred the Complainant to Medical Officer, YHIS, Bangalore. On reference of the OP, Complainant went there, but she did not get any relief. Hence, again she came to the OP Clinic and OP denied to treat the Complainant. Hence, she took treatment at M.S. Ramaiah Medical College & Hospital, Bangalore and after taking CT Scan it was found that the right kidney became very small i.e., contracted Kidney & 4.5 mm of calculus was present. It is alleged that suffering of the Complainant was because of the negligence of the OP and because of excess of ESWL sittings and existing of calculus in pelvis for long period. It is alleged that the OP totally failed to clean the calculus present in the right Kidney and has not advised the Complainant to go for higher hospital for further treatment. Hence, OP is totally liable for the Complainant’s suffering. The Complainant issued legal notice on 22.09.2009 and OP has given reply denying the allegations made in the notice. Hence, this Complaint is filed praying compensation of Rs.3.00 Lakhs spent by her for medical treatment and praying for compensation of Rs.5.00 lakhs.
3. OP has filed its version contending that Complaint is barred by limitation as the last treatment taken by the Complainant was in September 2007 and the Complaint is filed on 18.11.2011 and it is filed 2 years after the cause of action. It is stated that the Complainant approached the OP and Ultrasound Scan was done to know the present status and it was found that there was calculus on right side with Hydronephrosis. The allegation that in the said report it was found that both kidneys were of normal size is denied. It is stated that due to presence of the Hydronephrosis on right side Kidney the said Kidney cannot be normal in size. The allegation that OP has done 15-20 ESWL sittings to the Complainant is denied. It is stated that the Complainant has undergone 4-5 ESWL sittings. The allegation that 6 months later the Complainant again approached the OP for treatment is denied. It is stated that during September 2007 the Complainant approached the OP with similar problem and the OP advised her to attend ESWL sittings once in a week regularly. But, the Complainant did not attend for the sitting regularly as per the advice of the OP. Complainant attended 4-5 ESWL sittings during the period from March 2007 to September 2007. As the Complainant was not regular in attending the follow-up treatment, small part of the calculus persisted. Complainant came with some bad elements and created bad seen in the OP Clinic. Calculus was not cleared because the Complainant did not attend for regular ESWL sitting and in a gap of 6 months there are chances of re-forming of calculus. During September 2007, OP referred the Complainant to Apollo RM Hospital, Bangalore for further treatment and she has taken further treatment in that Hospital. The Complainant has suppressed the fact of taking further treatment at different Hospitals and only for blackmailing the OP, she has filed this false complaint intending to make wrongful gain. It is stated that the stone formation is a recurring disease due to multiple factors like food habits, genetic pre-disposition, prevalence in this area as per Campbell’s Urology, 9th Edition. This OP has given best possible treatment to the Complaint. The fact that more than 2 years after clearance of the stone from the Apollo RM Hospital again there was stone formation which suggest that the present stone problem is due to formation of new stone for which this OP could not be blamed. Complainant was never treated by the OP after 2nd week of September 2007 and there was no negligence in treating the Complainant and the Complaint is liable to be dismissed.
4. The points that arise for consideration is as under:
(1) Whether the Complaint is barred by limitation ?
(2) Whether the Complainant proves alleged deficiency in service by the OP?
(3) What Order ?
5. Our findings on the above points are as under:
(1) Point No. 1 – Affirmative
(2) Point No. 2 – Negative
(3) Point No. 3 – As per final order
REASONS
6. Point No. 1 – The contention of OP that the Complaint is barred by limitation is acceptable for the following reasons. According to the OP, the Complainant was treated by him until 2nd week of September 2007 and then the Complainant was referred to Apollo RM Hospital. OP has produced the documents called New Registration Register of the Apollo Hospital. It shows that on 12.09.2007 the Complainant started taking treatment at Apollo RM Hospital and the name of the referring Doctor is stated as this opponent. This fact goes to show that from 02.09.2007 the Complainant started taking treatment at Apollo RM Hospital. Even according to the Complaint, during March 2007 the Complainant took treatment for the first time from the OP and 6 months thereafter she went again with some problem and the OP has referred the Complainant to Medical Officer, YHIS, Bangalore, for further treatment. It is stated that again the Complainant came to the OP for treatment and OP did not agree to treat her. This contention of the Complainant clearly corroborates the contention of the OP that he treated her only until September 2007. This Complaint is filed on 18.11.2009 i.e., more than 2 years after the Complainant stopped taking the treatment from the OP. If the Complainant had any grievances, she could have approached this Forum within 2 years from the date of alleged negligence of the OP, but that has not been done. No Application for condonation of delay has been filed by the Complainant. Hence, on the admitted facts, it is clear that the Complaint is filed more than 2 years after the last cause of action. Hence, the Complaint is barred by limitation.
7. Point No. 2 – The Complainant has failed to prove alleged deficiency in service for the following reasons. The case of the Complainant goes to show that from February 2007 she took treatment from the OP and OP assured that all the calculus were cleaned. Then after 6 months Complainant suffered with same problem and again she went to OP intending to take further treatment. This allegation clearly goes to show that the Complainant took treatment for the first time in February 2007. The complaint subsided and she was comfortable for 6 months and only after 6 months the same problem started and because of it she came for treatment. This goes to show that treatment that was given for the first time was successful and the Complainant did not have any problem and she was relieved of the pain from which she was suffering and she was comfortable for 6 months. Hence, it cannot be said that the treatment that was given by the Complainant during that period was defective. Complainant has not even pleaded what was the defect in giving that treatment, except saying that the ESWL sittings were done more than the required number sittings. In our opinion, the contention of the Complainant is not acceptable, because ailment may not be cured in one sitting and it may require more than one sitting for various reasons such as number of stones, size of stones, location of the stones etc. According to OP, treatment of the ESWL was done on 4-5 occasions and not 15-20 occasions as stated by the Complainant. This contention of the OP has been corroborated by the Discharge Summary issued by the Apollo Hospital where the Complainant subsequently took treatment. In our opinion, in how many sittings the treatment should be done is a matter to be decided by the treating Doctors and if more sittings are required for a particular treatment and if the patient was treated on 4 or 5 occasions, that itself cannot be said to be negligence on the part of the Doctor who treated her. More over that has to be considered in the light of the subsequent health condition of the Complainant. According to the Complainant himself, for 6 months she had no problem after the said treatment was taken from the OP and only after 6 months she came back with similar complaint. Hence, on the facts & circumstances of the case, the allegations of the Complainant that there was negligence in treating the Complainant during Feb. 2007 is not at all acceptable.
8. The allegation of the Complainant goes to show that subsequently she has not taken treatment from the OP. Complainant states that 6 months later she went to the OP with similar problem. OP referred the Complainant to the Medical Officer, YHIS, Bangalore and she went there and took treatment, but it was not of use. Hence, she again came to the OP, but OP denied to treat the Complainant. This shows that subsequently the OP did not treat her. Hence, she approached the Apollo Hospital for treatment and then approached M.S. Ramaiah Medical College & Hospital and took further treatment. These things go to show that treatment taken by her after Sep. 2007 is from different Doctors and not with the OP and in spite of it she was not completely cured. If she was not completely cured due to subsequent treatment, the OP cannot be blamed for it. More over, the nature of disease is such that it may recur at any time. It is recurring disease due to multiple factors like food habits, genetic pre-disposition, prevalence in this area as per Campbell’s Urology, 9th Edition which is relied on by the OP. Now it is very clear that when the Complainant took treatment from OP, she was relieved from the problem for 6 months and subsequently the treatment taken by her with some other Doctors did not fully relieve of that problem. Hence, if there is any reason for not completely curing the Complainant, that is not the defect in giving the treatment by the OP as alleged. Hence, it is for different reasons, such as the disease has recurred and due to her physical condition, it could not be completely cured. It is contended by the Complainant that due to treatment given by the OP, the size of the Kidney has become smaller. This contention is not at all acceptable. When the Complainant was having Kidney stone i.e., calculus for long time and when she was under continuous medical treatment, it ought to have effect on the health of the Kidney and for that reason size of the Kidney has shrunk, as its capacity to function has been reduced. Hence, the lessening of size of the Kidney cannot be related to the treatment given by the OP in 2007.
8. The matter was referred to the Karnataka Medical Council and the Medical Council has given opinion as follows:
“I am of the opinion that a prima facie “deficiency in service’ is committed by the Respondent as he failed to refer the Complainant to a higher Centre at an early date.”
The opinion given is that the OP has committed deficiency in service as he failed to refer the Complainant to higher Centre at an early date. The opinion of the Medical Council is against the facts pleaded by the Complainant himself. According to the Complainant, she took treatment in Sep. 2007 and she was comfortable for 6 months and then she went again for treatment with the OP after 6 months. At that time, OP had referred her for further treatment to Medical Officer, YHIS, Bangalore. Complainant went and took treatment there and came back. Again she went to OP and at that time OP did not treat her and at that time he referred her to Apollo Hospital, Bangalore. Out patient extract of Apollo Hospital has been produced by the OP and it shows that on 12.09.2007 the Complainant went to Apollo Hospital for treatment and the name of the referring Doctor is mentioned as Dr. Krishnaiah Shetty i.e., OP. These things clearly go to show that on two occasions OP has referred her for different Hospital at Bangalore for further treatment. On these facts, we fail to understand how the Karnataka Medical Council came to the conclusion that OP failed to refer the Complainant to the higher Centre at an early date. Hence, we do not agree with the report given by the Karnataka Medical Council.
9. For the above reasons and on the facts & circumstances of the case, we are of the opinion that the Complainant has miserably failed to prove that OP was negligent in treating her. Hence, we hold that the allegation of deficiency in service is not established. Hence, this point is held against the Complainant.
10. Point No. 3 - In view of the finding on Point Nos. 1 & 2 and for the reasons discussed therein, we are of the opinion that the Complaint is frivolous and absolutely there was no reason for complaining against OP alleging any negligence in treating the Complainant. Under such circumstances, we are of the opinion that the Complaint is liable to be dismissed with exemplary costs. Hence, we hold that awarding cost of rs.5,000/- is reasonable. Hence, we pass the following:
ORDER
The Complaint is dismissed.
The Complainant shall pay Rs.5,000/- as costs to the OP.
Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 28th day of January 2012.
T. NAGARAJA K.G.SHANTALA T.RAJASHEKHARAIAH
Member Member President
