BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.19 / 2001 WEDNESDAY THE 23rd DAY OF JUNE 2010. C. Mani, S/o. Chinnappa Nadar, Kilpallipattu Village, Kannamangalam Post, Vellore Taluk and District. … Complainant. - Vs – Dr. Mani Elango M.B.B.S., M.S., Dhinesh Hospital, 2/1 Arni Road, Vellore Town and District 632 001. … Opposite party. . . . . This petition coming on for final hearing before us on 26.5.2010, in the presence of Thiru. R.Mahalingam, Advocate for the complainant and Thiru. G. Kalaimani, Advocate for the opposite party and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is suffering from right flank pain from 1997 onwards and for that the approached the opposite party on 8.2.99 for taking treatment. After clinical test the opposite party referred to Sri Anand Ultra Sound Scan Centre for taing scan and on the same day scan was done and scan repot was given by the Dr.M.J. Srinivasan and in the scan report it is mentioned in Right Kidney on the right renal pelvic stone is found, hence mild Hydronephrosis on right kidney. Hence complainant was admitted in the opposite party Hospital on 12.2.99 on the advice and assurance given by the opposite party and operation was on 13.2.99 to remove the stone in kidney and for the operation the opposite party charged Rs.25,000/- for taking scan complainant paid Rs.5000/- and other medicine expenses Rs.5000/- in total the complainant spend Rs.35,000/-. After discharge, the right blank pain was not cured and the same pain is continued because the opposite party have removed right renal pelvic stone on the right kidney, hence the complainant approached the Christian Medical College and Hospital, Department of Urology Unit I, Vellore for further treatment on 2.3.99 and after clinical test the complainant was treated in O.P. and on 24.3.99 IV U was done and find calculus 2 Cm right PUJ with moderate hydronephosis. Hence the complainant was admitted in the hospital on 22.4.99 and post operation was done on 23.4.99 and removed 2 cm calculus in renal pelvic with moderate hydronephcosis and discharged from hospital on 27.4.99 and from that onwards complainant taking treatment as a out patient till 26.7.99 and for that the complainant spent Rs.50,000/- for the 2nd operation. After the operation in C.M.C. Hospital, Vellore he was free form pain and after the 2nd operation on 22.4.499 the complainant through from the CMC hospital doctors, the 1st operation done by the opposite party is not removed the stone in kidney. After the failure of the 1st operation done by the opposite party, the complainant went on another operation for the same pain, the complainant put to irreparable physical torture and mental tension of worst description and had affected the financial position of the complainant. The opposite party is responsible for the improper and inefficient method of operation resulting in physical torture and mental agony caused to him. There is great deficiency of service on the part of the opposite party in the rendering of the service. Hence he has sought for orders of this Forum directing the opposite party to pay a sum of Rs.1,00,000/- towards the after care treatment of the complainant health and Rs.35,000/- towards payment of expenses incurred to operation on 13.2.99 and Rs.50,000/- towards payment of expenses incurred to the 2nd operation on 23.4.99 and Rs.2,10,000/- as compensation for mental agony and physical torture caused to the complainant due to deficiency of service of the opposite party and Rs.5,000/- being the cost of this complaint. 2. The averments in the counter filed by the opposite party is as follows: The opposite party is at the outset primarily objecting to the maintainability of the present complaint of the complainant before this Hon’ble Forum since it involves complicated medical issues. In Indian Medical Association v. V.P.Shantha (1995 (6) SCC 651 p. 672-673, para 37). It is stated in complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. The accusation of the complainant against him are frivolous and vexatious in nature which are neither maintainable in law nor on facts and it is liable to be dismissed in limine. The opposite party has not breached the duty of care owed to the complainant when he was admitted at Dinesh Hospital under his care for his renal problem. He exercised reasonable care and skill while operating the complainant to set right his renal problems and in providing the appropriate postoperative care. During the first week of February 1999, the complainant consulted him for his pain right-sided pain abdomen of 2 years duration. The pain increased while passing urine and it spread from right lumbar region (Right side of the lower aspect of back) to lower abdomen. He was taking treatment for right renal calculus on the advice of a doctor. This opposite party advised him to perform an Ultra Sonogram (USG) scan. The USG report calculus (a concentration of minerals formed in the kidney) in the right pelvis with minimal hydronephrosis (aseptic dilation of the whole or part of the kidney due to a partial or intermittent obstruction to the outflow of urine. Based on the above clinical and the results of investigations, this opposite party concluded that the complainant was suffering from right renal pelvic stone. This opposite party advised him to undergo Exploration of Right renal Pelvis for pelvic stone. He explained in detail to the complainant about renal pelvis and pelvic renal stone, why he proposed to perform a surgery to remove the stone, what one should except after the surgery for the removal of renal pelvic stone, and what was a renal stone, for the surgery. This opposite party advised him to perform relevant biochemical investigations of blood and urine, Electro Cardiogram (ECG) and Radiological investigations of chest and abdomen. The results of the investigations were as follows: TC - 7,150 cells/cm DC - 56/39/5 HB - 10.6 gms% RBC - 3.1 millions BT - 1 minute 45 seconds. CT - 3 minutes 40 seconds. Blood Sugar 96 mg% Blood Urea 30 mg% Serum Creatinine 0.9 mg% Urine Albium + Sugar NIL Deposits Blood Group ‘A-1’ positive ECG – Normal X-Ray Chest – Normal The opposite party requested Dr.Anandraj M.B.,B.S., D.A., Consultant Anesthesiologist to examine the complainant for anesthetic fitness. Dr. Anadaraj examined the complainant on the evening of 12.2.99 and found him fit for general anesthesia. On the evening of 12.2.99, the complainant was fully informed by the opposite party about his illness, the necessity for exploration of right renal pelvis for pelvic stone, the alternatives for the proposed treatment, the after effects of the proposed treatment and the alternatives, the early and late complications of the proposed treatment and the alternatives, the small chances for not able to remove the renal pelvic stone due to its migration to another location, anesthetic complications and the option of not undergoing any treatment. Only after this session of explanation the complainant signed the informed consent to undergo surgery. His son Mr.M.Sakthi witnessed this consent. The surgery was performed on 13.2.99 and Dr.M.Gajalakshmi assisted him. Dr.Anandaraj M.B.B.S., D.A. gave the general anesthesia. Under general anesthesia through right lumbar incision extending up to umbilicus, kidney and renal pelvis were mobilized retroperitoneally. Pylotomy party to take it out. The complainant had an uneventful postoperative period and was discharged on 19.2.99. Al the steps followed by him were that are expected of a prudent general surgeon. He never strayed away form the methodology to be adopted in such cases as described in classical medical text books. The above mentioned sequence of events corroborated by the hospital case sheet of the complainant clearly proves that the opposite party adhered to the methodology as practiced by doctors under similar circumstances in reputed institutions. So there is no negligence in the duty that the opposite party owed to the complainant. 3. The opposite party denies the allegation in para-7 of the complaint in which the complainant states that he gave an assurance to the complainant that he would be cured and further no pain would come on the right flank. The opposite party informed the complainant about the small possibility of not able to remove the renal pelvic stone due to its migration to another location while getting his written consent. The opposite party denies the allegation in para-4 of the complaint in which the complainant states that he charged Rs.25,000/- for the operation. The complainant paid only Rs.4000/- a printed numbered and signed receipt is given at Dinesh Hospital for the money received. The opposite party denies the statement in para-4 of the complaint in which the complainant states that he paid Rs.5000/- for taking improper and inefficient manner are not at all supported with evidence. Further, in a case involving allegations of medical negligence, expert evidence is compulsory. INDIAN MEDICAL ASSOCIATION V. V.P.Shantha (1995(6) SCC 651 ( 668, para 30)) it is stated: “A determination about deficiency in service for the purpose of section 2(1)(g) (‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.) has, therefore, to be made by applying the same test as is applied in an action for damages for negligence. The complainant has not produced any expert evidence to substantiate his allegations. The mere production of documents pertaining to the treatment taken in the next hospital does not prove that this opposite party has fallen short of the professional standards expected of him. The opposite party is not liable to pay any of the claims sought by the complainant. Therefore, it is prayed that this Hon’ble Forum may be pleased to dismiss the complaint as vexatious and frivolous with costs. 4. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 5. Ex.A1 to ExA8 were marked on the side of the complainant and Ex.B1 to Ex.B7 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 6. POINT NO. (a):- It is admitted case of the parties that the complainant was admitted in the opposite party’s Hospital on 12.2. 99 for pain right sided pain abdomen and after clinical test the opposite party advised him to perform the opposite party advised an Ultra sonogram scan. Accordingly the complainant taking ultra sonogram scans from Sri. Anand Ultra Sound Scan Centre in the Ultra sound scan report it is mentioned that RT. KIDNEY : SIZE, SHAPRE AND POSITION : NORMAL : PELVICALICEAL SYSTEM : DILATED. (MILD) STONE IS PRESENT. SIZE OF THE STONE : 11 MMS. LOCATION CF STONE : AT RENAL PELVIS REGION. Based on the clinical in the result of investigation the opposite party advised the complainant to undergo exploration of right renal pelvis for pelvic stone and explained in detail to the complainant about renal pelvis and pelvic renal stone and the surgery was performed on 13.2.99 by the opposite party under general anesthesia after post operative period the complainant was performed on 19.2.99. 7. The complainant contended that after the operation done by the opposite party on 13.2.99 to remove the stone in kidney and discharged from the Hospital the right blank pain was not cured. Hence the complainant approached the C.M.C. Hospital, Vellore for further treatment on 2.3.99. After clinical test the complainant was treated in O.P and on 24.3.99 IVW was done and find calculus 2 cm right POJ with moderate hydronephosis. Hence the complainant was admitted in the Hospital on 22.4.99 and post operation was done on 23.4.99 and removed 2 cm calculus in renal pelvic with moderate hydronephosis and discharged from Hospital on 27.4.99. It is further contended that the operation done by the opposite party on 13.2.99 was failure one and not removed right renal pelvic stone on the right kidney was known to the complainant after 2nd operation done on 23.4.99 at CMC Hospital, Vellore. The opposite party is responsible for the improper and inefficiency method of operation resulting in physical torture and mental agony caused to complainant. Therefore there is great deficiency of service on the part of the opposite party. 8. The opposite party contended that based on the clinical and results of the investigation the opposite party concluded the complainant was suffering from right renal pelvic stone. The opposite party advised him to undergo exploration of right renal pelvis for pelvic stone. Hence the complainant was to undergo right renal pelvis for pelvic stone. The opposite party informed to the complainant about the small possibility of not able to remove the renal pelvic stone due to its migration to another location while getting his written consent. Accordingly, the surgery was performed on 13.2.99 by the opposite party and Dr.Gajalakshmi assisted by him and Dr. Anandaraj gave general anaesthesia. Under general anaesthesia, through right lumbar incision extending upto umbilicus, kidney and renal pelvis were mobilized retroperitoneally with pylotomy to take it out and the complainant was discharged on 19.2.99. It is further contended that steps followed by the opposite party were that are expected of a prudent general surgeon, he never strayed away from the methodology to be adopted in such cashes as described in classical medical text books. Therefore it is highly unethical and illusionary on the part of the complainant to allege the opposite party that he improperly and inefficiently treated the complainant. 9. From the perusal of Ex.A1, Scan Report of the complainant issued by Dr.M.J. Srinivasan, of Sri Anand Ultra Sound Scan Centre, it is mentioned that RIGHT RENAL PELVIC STONE SIZE 11 MMS. MILD HYDRONEPHROSIS RIGHT KIDNEY. based on the Scan report and results of the investigation the opposite party concluded the complainant was suffering from right renal pelvic stone and advised the complainant to undergo exploration of right renal pelvis for pelvic stone. Accordingly the complainant was admitted on 12.2.99 and the surgery was performed on 13.2.99 and gave general anaesthesia. Under anaesthesia, through right lumbar incision extending up to umbilicus, kidney and renal pelvis were mobilized retroperitoneally with pylotomy to take it out. According to the complainant that he underwent operation for the removal of the right renal pelvic stone on right kidney on 13.2.99 only on the account of the assurance given by the opposite party that he will be cured and further no pain will come on right flank. But the opposite party is responsible for the improper and inefficiency method of operation done by the opposite party. The complainant went on another operation for the same pain in the CMC Hospital, on 23.4.99. The contention of the opposite party that the complainant was fully informed about his illness the necessity for exploration of right renal pelvis for pelvic stone, the alternatives for the proposed treatment, the after effects of the proposed treatment and the alternatives, the early and late complications of the proposed treatment and the alternatives, the small changes for not able to remove the renal pelvic stone due to its migration to another location, an aesthetic complications and the option of not undergoing any treatment. So there is no negligence in the duty of the opposite party owed to the complainant. From the perusal of Ex.A5, discharge summary of the complainant issued by the Department of Urology Unit No.1, CMC, Hospital, Vellore it is mentioned the history of patient / complainant that he underwent pyelolithotomy elsewhere but stone could not be retrieved and after investigation found that the RGP showed 2cm calculus in renal pelvis with moderate hydronephrosis. After treatment he discharged from the Hospital, on 25.4.99. According to the complainant the operation done by the opposite party on 13.2.99 was failure one and not removed right renal pelvic stone on the right kidney was known to the complainant after 2nd operation done on 23.4.99. at CMC Hospital, Vellore. But there is no remarks made in the Ex.A5, discharge summary of the C.M.C. Hospital, Vellore about the operation done by the opposite party on 13.2.99. 10. The PW2 Dr. Nainan Chacko Senior Professor of Urology Department, C.M.C. Hospital, Vellore has deposited before the Forum that to diagnose stone, we used to taken ultra Rodiagram, Normally a surgeon used to adopt that method, before surgery, During operation, there will be possibility stone cannot be located, if it is small stone. If, it will not be possible to remove the stone in the operation. In the Cross examination the PW2 has stated that to remove the stone there are several methods available in the Medical line. 1) ESWL 2) PCNL and apart from open operation are available. If, stone in kidney is small size it will move or neglect anywhere in the Urinary track. As per our medical records in this case, the size of the stone is 2 cm. As per the Dinesh Hospital records, it is 1.1 cm in size, non-removal of renal stone suffered by the Petitioner is inherent complication of any surgical procedure for stone. A careful perusal of evidence of the PW2 Senior Professor of Urology Department, C.M.C. Hospital, Vellore it is seen that During operation, there will be possibility stone cannot be located, if it is a small stone. If, stone in kidney is small size it will move or neglect anywhere in the Urinary track. Further the PW2 Dr. Nainan Chacko who done the operation to the complainant on 23.4.99 has never stated that the operation done by the opposite party on 13.2.99 was failure one and not removed right renal pelvic stone on the right kidney. According to the opposite party before the surgery he explained about the necessity for exploration of right renal pelvis for pelvic stone, the alternatives for the proposed treatment, the after effects of the proposed treatment and the alternatives, the early and late complications of the proposed treatment and the alternatives, the small chances for not able to remove the renal pelvic stone due to its migration to another location. Thereafter under general anesthesia through right lumbar incision extending upto umbilicus, kidney and renal pelvis were mobilized retropetitoneally pylotomy party to take it out. 11. The learned counsel for the opposite party has argued that the complainant mentioned in the complaint the mere production of documents pertaining to the treatment taken in the C.M.C. Hospital, does not proved that the opposite party has fallen short of the professional standards expected of him. The burden of proof on the medical negligence lies on the complaint, but in this case, the complainant has not proved the allegation made in the complaint against the opposite parties through medical records or expert evidence. In this connection the learned counsel for the 2nd opposite party is relying upon the following Judgments of Hon’ble Supreme Court and National Consumer Disputes Redessal Commission, New Delhi. I. (2009) 7 Supreme Court Cases 130 C.P. SREEKUMAR (DR.), MS (ORTHO) ..Vs.. S.RAMANUJAM Wherein the Hon’ble Supreme Court is held that “ As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In Jacob Mathew case it has been observed as under: (SCC pp.32-33, para-48) “(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratantal 7 Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’ , ‘breach’ and ‘resulting damage’ (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the par of a medical professional. II. 2007 (2) CPR 260 (NC) N. Krishna Reddy ..Vs.. Christian Medical College and Hospital Rep. by its Medical Superintendent & Anr. Wherein the Hon’ble National Commission, New Delhi is held that, “ Consumer Protection Act, 1986 – Sections 21(a)(i) – and 2 (1) (g) – Complaints about medical negligence – Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavits filed by Hospital and doctors. “ 16. The Nature of medical profession is such that there are many courses of treatment in each disease. The diagnostic procedure may be vary, and the approach by each Doctor will be different, and the treatment given to a patient differs from man to man. It is for the Doctor treating the patient to decide the best course of action and if he has done the job exercising due diligence with such standard of care that is required of him. Unless it is shown that the Doctor has failed to opt a particular precaution or failed to follow the procedure and such failure has called to the ultimate result or complication. In this case based on the Scan Report and the result of investigation the opposite party concluded the complainant was suffering from right renal pelvic stone. The opposite party advised him to undergo exploration of right renal pelvis for pelvic stone and also explained in detailed to the complainant about renal pelvis for pelvic stone. Hence the complainant was to undergo right renal pelvis for pelvic stone. The opposite party informed to the complainant about the small possibility of not able to remove the renal pelvic stone due to its migration to another location while getting his written consent. Accordingly, the surgery was performed on 13.2.99 by the opposite party and Dr.Gajalakshmi assisted by him and Dr. Anandaraj gave general anaesthesia. Under general anaesthesia, through right lumbar incision extending upto umbilicus, kidney and renal pelvis were mobilized retroperitoneally with pylotomy to take it out and the complainant was discharged on 19.2.99. From the perusal of Ex.B6, Cash sheet of the complainant issued by the opposite party’s Hospital it is clearly proved that the opposite party adhered to the methodology as practiced by doctors under similar circumstances. Further, there is no documents were filed on the side of the complainant to prove the location made in the complaint. The PW2 Senior Professor of Urology, C.M.C. Hospital, Vellore doctor who performed the operation to the complainant on 23.4.99 have not made any commends or adverse remarks in the Ex.A5 discharge summary to the complainant issued by the C.M.C Hospital, Vellore about the operation done by the opposite party on 13.2.99. Therefore there is no medical record or expert opinion to prove that the operation done by the opposite party on 13.2.99 was failure one and not removed right renal pelvic stone on the right kidney was known to the complainant after 2nd operation done on 23.4.99 at CMC, Hospital, Vellore and after the failure of the 1st operation done by the opposite party the complainant went on another operation for the same pain, he put to irreparable physical torture and mental tension . Hence there is no deficiency in service on the part of the opposite party. 17. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A8 & Ex,.B1 to Ex.B7, , we have come to the conclusion that the complainants herein have not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainants herein. 18. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 19. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 12th day of October 2010. MEMBER-I MEMBER-II PRESIDENT. Complainant’s Exhibits: Ex.A1- 1.11.00 – X-copy of Receipt, for Rs.2460/- Ex.A2- 6.12.00 - X-copy of enrollment issued by Regional office of opp party-1 Ex.A3- -- - X-copy of oral coaching completion certificate. Ex.A4- - - X-copy of identity card. Ex.A5- 8.4.02 - X-copy of Challan for payment of Exam Fees. Ex.A6-25.11.00 - Challan for payment of Rs.1200/- Ex.A7- 14.3.02 - X-copy of opposite party-1’s communication to complainant. Ex.A8- -- - X-copy of Postal cover bearing dispatch seal 8.6.02 delivery seal 20.6.02 Ex.A9- 28.5.02 - x-copy of scheme of examination sent by opp party-1. Ex.A10- -- - X-copy of Hall ticket received on 20.6.02. Opposite parties’ Exhibits: Ex.B1- -- - Letter of Authority. Ex.B2- -- -- X-copy of Exam application. Ex.B3- -- - x-copy of ICWAI Exam instruction. Ex.B4- -- - X-copy of condition appearing in examination. Ex.B5 -- - x-copy of instruction to centre-in-charge for June 2002 Exam. Ex.B6- -- - Prospectus. Ex.B7- -- - Examination Timetable. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
