BEFORE THE DISTRICT CONSUMER FORUM :: WARANGAL
Present : Sri D. Chiranjeevi Babu,
President.
AND
Patel Praveen Kumar,
Member.
Wednesday, the 13th April, 2011.
CONSUMER COMPLAINT NO.119/2008
Between:
1) Badam Agaiah, S/o Shankaraiah,
Age: 55 yrs, Occ: Agriculture.
2) Badam Praveen, S/o Agaiah,
Age: 32 yrs, Occ: Business,
3) Badam Anil, S/o Agaiah,
Age: 28 yrs, Occ: Business,
4) Badam Ranjith, S/o Agaiah,
Age: 25 yrs, Occ: Business,
All are resident of Abbapur Village,
Mulugu Mandal, Warangal District.
… Complainants
And
Dr.L.Vidyasagar Reddy, M.D.,
General Physician,
Regd.No.46502, Authorised LIC Examiner,
Pavan Nursing Home,
Nekkonda Road,
Narsampet Village & Mandal,
Warangal District.
… Opposite party
Counsel for the Complainants :: Sri T.Sridhar, Advocate.
Counsel for the Opposite party :: Sri T.Sarangapani, Advocate.
This complaint is coming for final hearing before this Forum, the Forum pronounced the following order.
CC 119/2008 -- 2 --
ORDER
Sri D.Chiranjeevi Babu, President.
This complaint is filed by the complainants B.Agaiah and his children against the opposite party under section 12 of Consumer Protection Act, 1986 for a direction to pay Rs.10,00,000/- towards damages along with interest @18% p.a. from the date of complaint till full realization and award costs.
The brief averments contained in the complaint filed by the complainants is as follows:
The case of the complainants is that the complainants N0.2, 3 and 4 are the sons of complainant No.1 and the deceased Badam Jyothi. The wife of the complainant No.1 Badam Jyothi, Aged 46 years was suffering from fever, as such she was brought to the hospital of opposite party on 26-12-2007, where the opposite party advised the complainants that the patient Badam Jyothi was suffering from Dengu Fever and treated her from 26-12-2007 to 31-12-2007 by conducting several tests and applying medicines. The opposite party not provided proper treatment and administrated wrong medicines negligently. Under the pressure of the complainants, the opposite party referred the patient on 31-12-07 for expert treatment. Accordingly, the patient was shifted to Rohini Hospital, Hanamkonda where the doctors have come to the conclusion that the patient was suffering from Cerebral Malaria fever and treated her from 31-12-07 to 09-01-08, for which the complainants incurred huge amount of Rs.1,00,000/- On the advice of doctors at Rohini Hospital, the complainants while shifting the patient, she succumbed on the way on 10-01-08. The death of Badam Jyothi happened due to wrong conclusion and improper treatment by the opposite party. The complainants got issued legal notice on 19-05-08 to opposite party demanding to pay Rs.10,00,000/- towards damages, for which the opposite party gave vague reply. The acts of opposite party amounts to deficiency of service. Hence, filed this complaint praying to direct the opposite party to award damages of Rs.10,00,000/- with interest and costs.
The opposite party filed the Written Version stating that it is true Badam Jyothi came to the opposite party with her son by name Praveen on 26-12-07 with mild fever, Hypertension, Diabetis, Heart disease and B.P. As such the opposite party gave prescription and advised her to go to Dr.Venkatrajam, M.D. (Rohini Hospital) who is her regular adviser but the son of the patient by name Praveen refused to take the patient as there is
CC 119/2008 -- 3 --
no body to take care at Warangal and insisted the opposite party to give treatment. After noon on 26-12-07 the patient and her son went back to home though the opposite party insisted them to admit in the hospital. Again the patient came to the hospital on 28-12-07 morning with B.P.190/100 and drowsy condition. As such the opposite party refused to give treatment as the patient is having HTN/OM/Heart Disease. The complainant No.2 requested the opposite party to give treatment and told that he took all the responsibility with any problem is arise during the course of treatment of the patient. The opposite party on clinical examination and based on the reports suspected viral infection and mentioned as suspected case of Dengue fever as during September, 2006 to January,2007 was treated Dengue period medically in Andhra Pradesh. There is no mention in the documents furnished by the complainants that by whom the patient was referred to Rohini Hospital on 31-12-07. The copies of Pathological reports dt.31-12-07 of Rohini Hospital clearly goes to show that the patient’s general condition is good and under control. As such the opposite party gave appropriate treatment to the patient and stated that there is no any deficiency of service on the part of the opposite party and requested this Forum to dismiss this case.
The complainants in support of their claim, filed the Affidavit of complainant No.1 in the form of chief examination, examined as PW-1 and the doctors examined as PW-2 and PW-3 and marked Exs.A-1 to A-22. On behalf of opposite party Ravinder Reddy filed his Affidavit in the form of chief examination, examined as RW-1 and also marked Ex.B-1.
Now the point for consideration is:
1) Whether there is any deficiency of service on the part of the opposite party?
2) If so, to what Relief?
Point No.1:-
Both the parties argued elaborately. The counsel for complainants argued that there is deficiency of service on the part of the opposite party because without conducting any examination he gave medicines for Dengue Fever, but actually there is no any Dengue fever to the deceased. When there is no any Dengue Fever to the deceased the opposite party gave medicines for dengue fever that is the reason only the wife of the complainant NO.1 died in another hospital. So there is deficiency of service on the part of the opposite party.
CC 119/2008 -- 4 --
The opposite party’s counsel argued and filed one document which was given by Medical Council stating that there is no any deficiency of service on the part of the opposite party and requested this Forum to dismiss this case.
In this case as per the version of PW-1 on 26-12-07 his wife Smt.Badam Jyothi, Aged 46 yrs was suffering from fever as such they brought his wife to the hospital of opposite party under the name and style of Pavani Nursing Home situated at Nekkonda Vilage, Narsampet Warangal District for the treatment. The opposite party advised them that his wife was suffering from dengue fever and advised them to get join into their hospital after conducting certain tests such as E.S.R., R.B.S., C.B.P. in the laboratory located in the said hospital premises, belongs to the opposite party. The opposite party treated his wife from 26-12-07 to 31-12-07 for six days. During the course of the said treatment, the opposite party has conducted the same tests and administered certain medicines. From the tests which were conducted by the opposite party, the opposite party has come to wrong conclusion, provided improper treatment, administered wrong medicine by giving wrong prescriptions in a negligent manner, as such there was no recovery in the health condition of his wife, but her health condition was decreasing from hour to hour and day to day. In this regard he and his family members and also relatives had requested the opposite party to correctly analyse the disease by conducting necessary tests, but the opposite party has paid deaf ear to their requests. Due to which the health condition of his wife is decreased to the least stage and she was fighting with life and death as she went into un-conscious (COMA) stage due to wrong treatment, improper diagnosis, the patient was effected with cerebral malaria. From the next day of admission, his wife, his family members and relatives requested the opposite party to even to refer the patient for expert treatment, but the opposite party has bluntly refused for the same and continued the improper treatment in a negligent and ignorant manner. In view of un-conscious and serious condition of his wife he and their relatives have brought great pressure on the opposite party on 31-12-07, on which the opposite party has referred the patient for higher center. But on the said referral slip, the opposite party has corrected the date of treatment as from 26-12-07 to 31-12-07 and also mentioned therein stating SUSPECTED CASE OF DENGUE, which clearly establish that the opposite party has not come to correct conclusion and provided wrong and improper treatment during the course of said treatment. Immediately the PW-1 and their relatives shifted his wife to Rohini Super Speciality Hospital, Hanamkonda.
CC 119/2008 -- 5 --
After necessary examinations the doctors at Rohini Hospital have come to conclusion that his wife was suffering from Cerebral Malaria fever and got admitted her into Rohini Hospital where they got provided expert treatment from 31-12-07 to 09-01-08 by incurring huge amount more than Rs.1,00,000/- to his wife. During the course of the said treatment, his wife was kept in Ventilators from 05-01-08 to 09-01-08, but due to the wrong treatment, administering improper medicine by the opposite party her health condition was already badly effected, as such the efforts of the expert doctors at Rohini Hospital, Hanamkonda have also not fruitful and his wife was fighting with life and death and that the efforts of themselves and expert doctors to save the life of his wife were also went in vain. However, on 9-01-08, on the advise of doctors at Rohini Hospital, Hanamkonda while they
were shifting her wife to Hyderabad she succumbed on the way on 10-01-08 at about 4.30 a.m. which occurred only due to wrong conclusion, improper assessment of disease and administering wrong medicines by the opposite party, as such the opposite party is solely responsible for the death of his wife Badam Jyothi.
RW-1 stated in his evidence that it is true that the patient Badam Jyothi came to him with fever and consulted him on 26-12-07 with her son by name Badam Praveen who is complainant NO.2 in the above case. After prescription by him, she was taken to her house at Narsampet and again she came on 28-12-07 for treatment with severe fever. As such she asked her to join in his hospital on the same day for treatment and she was treated by him from 28-12-07 to 31-12-07. He has conducted all necessary tests and administered medicines as per required condition of the patient and the remaining are denied. He has given the treatment to the patient in a correct manner and there is no any deficiency of service on his part.
To prove the case of PW-1, one PW-2 who is a Consultant Physician at Rohini Hopsital since long back. As per his evidence he seen the patient on 31-12-07, Aged about 45 yrs, female, suffering from fever since 5 days vomitings since 2 days, patient is incoherent and irritable at the time of examination. On lab investigations and clinical examinations he came to the conclusion that the patient was suffering from Celebral Malaria and she also known patient of Diabetis, Hypertension and IHD. They had treated for all the ailments from 31-12-07 to 09-01-08. During the treatment inspite of seen by Cardiologist, Nephrologist and Chest Physician and other Physician
CC 119/2008 -- 6 --
including himself and she was put on Ventilator, she became very bad and the ultimate diagnosis was Celebral Malaria, Hypertension, Diabetis, IHD ARDS Metabolic Encephalopathy and they have taken away the patient against medical advice on 09-01-08 in the evening at about 7.00 p.m. and she also filed Case sheet which is marked as Ex.A-22.
Further to prove the evidence of PW-1 and PW-2, it is clear that another doctor who is the Head of the Department and Professor in General Medicine came to this Forum to give evidence on giving summons to him. He stated on the basis of both the Case Sheets i.e, Ex.A-22 and Ex.B-1 he opined that the patient is attacked with Fever, Malaria, Celebral Malaria, Diabetes, Hypertension, IHD (heart problem) ARDS and Metabolic encephalopathy. Finally the deceased died with Celebral Malaria and multiple organ disfunction. So the reason for multiple complications is due to celebral malaria added with hypertension, diabetes and IHD (heart disease). They mentioned lab reports in the case sheet. In Ex.B-1 it is mentioned about the complete blood picture, blood sugar and urine examination of the deceased. In Ex.B-1 it is not mentioned about pathology report or any clinical reports or any test reports. As per Ex.B-1 the symptoms shows the deceased suffered from Dengue fever, but there is no specific medicine for dengue fever and it managed sympathetically and supportive therapy.
So as per the evidence of PW-3 it is clear that the deceased was not having Dengue Fever and the deceased died only due to Celebral Malaria. It shows that there is deficiency of service on the part of the opposite party because the evidence of PW-1 proved by expert evidence i.e, PW-2 and another circumstantial witness PW-3. Their evidences are enough to show about the deficiency of service on the part of the opposite party. When PW-2 and PW-3 clearly stated that the deceased died only due to Celebral Malaria not due to Dengue Fever. When the deceased not died due to Dengue Fever and died due to Celebral Malaria , it shows that there is deficiency of service on the part of the opposite party because the doctor has to give medicines for Celebral Malaria only but given medicines for Dengue fever.
Further as per the evidences of PW-2 and PW-3 it is clear that the position of the deceased was dangerous position. On lab investigations and clinical examinations he came to the conclusion that the patient was suffering from Celebral Malaria and she also known patient of Diabetis, Hypertension and IHD. They had treated for all the ailments from 31-12-07 to 09-01-08. During the treatment inspite of seen by Cardiologist, Nephrologist and Chest
CC 119/2008 -- 7 --
Physician and other Physician including himself and she was put on Ventilator, she became very bad and the ultimate diagnosis was Celebral Malaria, Hypertension, Diabetes, IHD ARDS Metabolic Encephalopathy and they have taken away the patient against medical advice on 09-01-08 in the evening at about 7.00 p.m. and the evidence of PW-2 was proved by PW-3 that the deceased died only due to Celebral Malaria but not due to Dengue Fever. So there is deficiency of service on the part of the opposite party.
Further the counsel for the opposite party filed a Medical Council Certificate we already stated in supra that in view of the decision taken by the General Body, APMC the Registrar, Director informed that there is no negligence on the part of the doctor in treating the patient Badam Jyothi and he also directed to advise them not to issue certificates for insurance claims or other purposes as per the request of patients/attendants as the same will amount to un-ethical act and attracts disciplinary action by the Council. This certificate does not bind before this Forum because as per Supreme Court Judgments it does not at all bind before this Forum.
As per the judgment in 2010 4JT 630
V.Kishan Rao Vs Nikhil Super Speciality Hospital. This is an Apex Court Judgment. In this case the District Forum relied on the evidence of State Commission after elaborate discussion come to the conclusion that there is no negligence on the part of the respondent doctor. All possible care was taken by the respondent in treating the petitioner. The State Commission has also recorded a finding that no expert opinion was produced by the petitioner to prove that the line of treatment adopted by the respondent hospital was wrong or was due to negligence of respondent doctor, Dismissed. The appellant, who happens to be the original complainant, is an officer in the Malaria department and he got his wife admitted in the Respondent hospital on 20-07-02 as his wife was suffering from fever which was intermittent in nature and was complaining of chill. In the complaint, the appellant further alleged that his wife was subjected to certain tests by the respondent no.1 but the test did not show that she was suffering from malaria. It was also alleged that his wife was not responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1 Saline was given to her and the complainant had seen some particles in the saline bottle. This was brought to the notice of the authorities of the respondent No.1 but to no effect. Then on 23rd July, 2002 complainants wife was complaining of respiratory trouble and the complainant also brought it to the notice of the authorities of the respondent
CC 119/2008 -- 8 --
No.1 who gave artificial oxygen to the patient. According to the complainant at that stage artificial oxygen was not necessary but without ascertaining the actual necessity of the patient, the same was given. According to the complainant his wife was not responding to the medicines and thus her condition was deteriorating day by day. The patient was finally shifted to Yashoda Hospital from respondent No.1. At the time of admission in Yashoda Hospital some conditions were noticed. The patient admitted in AMC with H/o fever-8 days admitted 5 days back in NIKHIL HOSPITAL & given Injection Monocef, INJ Cifran, INJ Cholroquine because of dysnoea today suddenly shifted to Y.S.S.H. for further management. Upon arrival in AMC, patient unconscious, no pulse, no BP, Pupils dilated. Immediately patient intubated and given Rhyth resorted at 1.35 pm at 10.45 pm, patient developed brady cardia and inspite of repeated Altropine and could not be revived and declared dead at 11.30 pm on 24-07-02.
In the Affidavit which was filed by one Dr.Venkateshwar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent no.1 to the Yashoda Hospital being accompanied by the doctor of respondent NO.1. From the particulars noted at the time of admission of the patient in Yashoda hospital it is clear that the patient was sent to Yashoda Hospital in a very precarious condition and was virtually, clinically dead.
On the complaint of the appellant that his wife was not given proper treatment and the respondent No.1 was negligent in treating the patient the District Forum, on a detailed examination of the facts, came to a finding that there was negligence on the part of the respondent No.1 and as such the District Forum ordered that the complainant is entitled for refund of Rs.10,000/- and compensation of Rs.2,00,000/- and also entitled to costs of Rs.2,000/-.
The District Forum relied on the evidence of Dr.Venkateshwar Rao who was examined on behalf of the respondent No.1 Dr.Rao categorically deposed “I have not treated the case for malaria fever”. The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was not treated for malaria. But the death certificate was given by Yashodha Hosital disclosed that the patient died due to “cardio respirator arrest and malaria”. In view of the aforesaid finding the District Forum came
CC 119/2008 -- 9 --
to the conclusion that the patient was subjected to wrong treatment and awarded compensation of Rs.2,00,000/- and other directions as mentioned above in favour of the appellant.
The State Commission allowed this appeal with cost assessed at Rs.10,000/- tobe paid by the Respondent to the Appellant within 10 weeks. So the above cited judgment is clearly applicable to the case of the complainant. Because in the present case also the opposite party has given treatment for Dengue Fever but actually the deceased was suffering from celebral malaria, so without giving medicines for Celebral Malaria, he has given medicines for Dengue Fever and further the doctor has not assessed the deceased that she was getting dengue fever. When the doctor has not assessed the disease i.e, Dengue fever certainly it is his fault and negligence on the part of the opposite party doctor. So the above citation is applicable to the case of the complainants.
Further citation in 2007 (3) CPR 142 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Nand Kishore Verma & Ors … Complainants
Vs
Batra Hospital & Medical Centre & Ors … Opposite Parties.
Held: Consumer Protection Act, 1986 – Sections 2(1)(g) and 14 – Medical Negligence – Award of compensation of Rs.7,62,000/- Negligence in treating the patient which caused untold sufferings to the patient – Death of patient – Deceased was brought to the hospital as she was suffering from one inguinal node in initial stage – Test report indicated Hodgkins Lymphoma (LDHD) Cancer disease – Senior Consultant Pathologist of the Hospital had specifically advised Immuno-Chemistry Test for further investigation to confirm the diagnosis of LDHD and to distinguish its two types, Hodgkins Lymphoma (HD) and Non-Hodgkins Lymphoma (NHL) – However, the hospital authorities did not refer the slide to Ranbaxy Laboratoryin April 1997 as per avice of their own Sr.Consultant Pathologist – Patient was treated for Hodgkins disease- On repeated requests of complainants, specimen ofbiopsy of inguinal node was sent to Ranbaxy Laboratory for Immuno Chemistry Test on 03-10-1997-Report received after three days revelaed that the patient was infact suffering from Non Hodgkins Lymphoma (NHL) – However patient died on 14-10-1997 – whether patient was treated wrongly for Hodgkins disease despite the fact that she was suffering from Non-Hodgkins disease – (Yes)- Award of compensation of Rs.7,62,000/- has to be paid by the hospital as well as the doctors jointly and severally.
CC 119/2008 -- 10 --
This judgment is also applicable to the case of the complainants because in the cited judgment also the doctor has given treatment to the patient wrongly for Hodgkins Lymphoma despite the fact that she was suffering from Non Hodgkins Lymphoma. So in the present case also the deceased died due to Celebral Malaria, but the opposite party has given treatment for Dengue Fever. So the above citation is applicable to the case of the complainants.
The opposite party filed a citation in (2009) 7 Supreme Court Cases 130.
C.P.Sree Kumar (Dr.), Ms (Ortho) … Appellant
Vs
S.Ramanujam … Respondent
Held: Consumer Protection – Services _ Medical Services – Medical negligence – Pleading and particulars necessary to establish – Burden of proof – Held, onus of proving medical negligence lies on complainant – Mere
averment in complaint is not evidence – Complaint to be proved by cogent evidence – Complainant is obliged to provide facta probabda as well as facta probantia – Simple hairline fracture developed into more serious type of fracture requiring operation – Respondent alleging rought handling by hospital staff – Further alleging that doctor lacked basic skills in performing the operation - On facts, held, appellant doctor had 15 years of experience in the field of Orthopedics on the date of operation – Respondent complainant had not shown any evidence as to doctor’s lack of expertise in performing the operation – Held, bald statement cannot be accepted – Respondent neither producing contrary evidence nor rebutting doctor’s version that aggravation was due to muscular spasm – Hence, held, negligence cannot be attributed to hospital staff with certainly – Evidence Act, 1872 – Ss.101 and 102 – Burden of proof- Consumer Protection Act, 1986 – Ss.2(1)(b), (c), (0) and (g) – Tort Law – Negligence- Medical negligence – Pleading and proof – Medical Practice and Practitioners.
This judgment clearly goes to show that the burden of proof is on complainants and if the complainant failed to prove the case of the complainant the opposite party is not liable to pay anything. For this our answer is that in this case the complainants already proved their case by examining PW-1 to PW-3 and we based and accepted the evidences of PW-2 and PW-3 and come to the conclusion that there is deficiency of service on the part of the opposite party, so the above citation is not applicable to the case of the opposite party.
CC 119/2008 -- 11 --
For the foregoing reasons given by us, we come to the conclusion that there is deficiency of service on the part of the opposite party. When there is deficiency of service on the part of the opposite party certainly the complainants are entitled for compensation and we decided this point accordingly in favour of the complainants against the opposite parties.
Point No.2: To what Relief:- The first point is decided in favour of the complainants against the opposite party this point is also decided in favour of the complainants against the opposite party.
In the result the complaint is allowed and we direct the opposite party to pay an amount of Rs.5,00,000/- (Rs.Five lakhs only) to the complainants along with interest @7.5% p.a. from the date of filing of the complaint i.e,10-06-08 till the date of deposit. The opposite party is also directed to pay Rs.500/- (Rs.Five hundred only) towards costs. The complainants are entitled Rs.1,25,000/- each towards their share. The complainant No.1 is entitled for upto date interest and costs awarded by this Forum.
A month’s time is granted to the opposite party for the compliance of the order.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum today, the 13th April, 2011).
PRESIDENT Male Member
District Consumer Forum, Warangal
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainant On behalf of Opposite party
Depositions of PW-1, PW-2 and PW-3. Deposition of RW-1
EXHIBITS MARKED
ON BEHALF OF COMPLAINANT
01. Ex.A-1 is the Discharge Summary issued by Rohini Medicare, Hanammonda.
02. Ex.A-2 is the office copy of legal notice issued to opposite party.
03. Ex.A-3 is the Postal Receipt.
04. Ex.A-4 is the Acknowledgment.
05. Ex.A-5 is the Prescription issued by opposite party,d t.31-12-07.
06. Ex.A-6 is the lab report.
07. Ex.A-7 is the ESR Report issued by Rithwik Clinical Laboratory.,
dt.26-12-07.
CC 119/2008 -- 12 --
08. Ex.A-8 is the Urine Examination Report issued by Rithwik Clinical
Laboratory, dt.26-12-07.
09. Ex.A-9 and A-10 are the Lab Reports.
10. Ex.A-11 is the Urine Examination Report issued by Rithwik Clinical
Laboratory, dt.28-12-07.
.
11. Ex.A-12 is the Lab Report.
12. Ex.A-13 is the Bill of Pavan Nursing Home, dt.31-12-07.
14. Ex.A-14 is the Discharge Note issued by Pavan Nursing Home,
dt.31-12-07.
15. Ex.A-15 to A-19 are the Prescriptions of Badam Jyothi issued by
Pavan Nursing Home.
16. Ex.A-20 is the Death Certificate issued by Thaisildar, Mulugu Mandal, Warangal District.
17. Ex.A-21 is the Reply from the opposite party, dt.04-06-08.
18. Ex.A-22 is the Case Sheet of Badam Jyothi issued by Rohini Super
Speciality Hospitals, Hanamkonda.
19. Ex.A-23 is the writing in case sheet dt.31-12-07.
20. Ex.A-24 is the 5th and 6th page of the case sheet from systematical
examination to endocrinology observations are normal of Rohini
Super Speciality Hospitals, Hanamkonda.
21. Ex.A-25 is the writing of Fluid Overload dt.4-01-08.
22. Ex.A-26 is the writing in case sheet dt.4-01-08 at 8.00 am to 5-01-08
at 8.am.
ON BEHALF OF OPPOSITE PARTY
1. Ex.B-1 is the case sheet of Badam Jyothi issued by opposite party.
PRESIDENT
