BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 78/2011.
THIS THE 28th DAY OF JUNE 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Sri. Hussainsab S/o. Nabisab, aged about 42
years, Occ: Agriculture R/o. Meranal village, Tq. Sindhanoor, Dist: Raichur.
//VERSUS//
OPPOSITE PARTY :- Dr. Shrishailesh Amarkhed, Consultant
Urologist, Sri. Nursing & Maternity Home, Beroon Quilla, Raichur- 584 101.
CLAIM : For to direct the opposite to pay sum of Rs.
5,00,000/- (Rs. Five Lakhs) with interest and cost.
Date of institution :- 02-11-11.
Notice served :- 21-11-11.
Date of disposal :- 28-06-12.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite represented by Sri. C.Raghavendra, Advocate.
-----
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by one Hussainsab against opposite Dr. Sri. Shrishailesh Amarkhed U/sec. 12 of Consumer Protection Act for to direct the opposite to pay sum of Rs. 5,00,000/- (Rs. Five Lakhs) with interest and cost.
2. The brief facts of the complainant’s case are that, on 16-04-11 he got admitted in the Nursing Home of opposite for URSL surgical operation, operation was conducted and discharged on 18-04-2011 with an advise for revival on 03-05-2011, as per the advised of the opposite doctor, he visited the hospital of opposite on 03-05-2011 for checkup. Opposite doctor advised him to follow the same medicines as prescribed earlier. Thereafter complainant visited the hospital of opposite on 16-04-2011 on the complaint of severe abdominal pain and stopping of urine discharge. But opposite not properly treated him, hence he consulted another doctor in Maski and as per his advise, he went and admitted in MS Urologist Center at Bellary, in that hospital it was diagnosed as Bilateral renal calculi, Bilateral hydronephrosis/ Hydroureterosis with stent and after proper treatment, he was discharged on 06-7-2011 by remaining stent implanted by opposite doctor, thereafter, no such problems occurred to him. Hence it clearly shows the negligence of opposite in not removing stent implanted in time and not properly diagnosing Bilateral renal calculi, Bilateral hydronephrosis/ Hydroureterosis etc., and thereby opposite doctor found guilty under deficiency in his service and thereby, he filed this complaint for the reliefs as noted in it.
3. The opposite doctor appeared in this case through his Advocate, filed detail written version by admitting the fact of conducting surgery on 16-04-2011 and discharging the complainant on 18-04-2011. He also admitted the implanting stent at the time of surgery.
4. He denied all other allegations regarding the negligence on his part. On the other hand, he contended that, as advised by him to complainant for to appear for medical checkup on 03-05-2011, was not attended by him, it is his negligence. On 11-06-2011, he came to his nursing home with a complaint of fever, as such he advised the complainant to take some medicines and appear after one week, as it was not proper to remove the stent at that time. Hence removal of stent was deferred. As regards to small renal calculi, there are insignificant hence that was not taken into consideration before operation. Other allegations regarding negligence are specifically denied, there is no negligence on his part, there is negligence on the part of complainant, hence he prayed for to dismiss the complaint among other grounds.
5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he undergone surgical treatment with stening from opposite doctor for the complaint of left URSL by admitting in his nursing Home on 16-04-2011 and he was discharged on 18-04-2011, with advised to appear for revival on 03-05-2011. As per the advise of the opposite doctor, he visited on 03-05-2011 for checkup, opposite doctor advised him to follow same medicines and instructed him to come for revival on 16-04-2011. Whether complainant further proves that, on 16-04-2011, he approached opposite doctor on the complaint of abdominal pain, stopping of urine discharge, but opposite doctor not properly treated him, hence he consulted another doctor at Maski and as per his advise, he went and admitted in MS Urology Center at Bellary, wherein his decease was diagnosed as Bilateral renal calculi, Bilateral hydronephrosis/ Hydroureterosis with stent and another surgery was conducted in that hospital, thereafter he was discharged on 06-07-2011. Now, he is in good health, no such complaint repeated, as such, opposite doctor shown his negligence in not removing stent and not properly diagnosing his decease and thereby opposite found guilty under deficiency in his service.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
6. Our findings on the above points are as under:-
(1) In affirmative.
(2) As discussed in the body of the judgment and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-13 are marked. On the other hand, affidavit-evidence of the opposite doctor was filed, who is noted as RW-1. No documents filed and marked. Later one document with medical literature filed.
8. As per settled principle of law, the burden of proving these two allegations with regard to medical negligence of opposite doctor is on the complainant, who alleges it. Hence we have given our more attention to the pleadings of the complainant, his affidavit-evidence and documents. If, complainant discharged this burden then we required to appreciate the pleadings and affidavit-evidence of opposite to ascertain as to whether he treated the complainant as per the recognized standards.
9. In the instant case, some of the admitted facts between the parties are that:
1. Opposite doctor diagnosed decease of the complainant after clinical examination with various tests that, he was suffering from ureteric calculi and advised him for left URSL on 16-04-2011.
2. It is further admitted fact that, complainant admitted in the nursing home of opposite on 16-04-2011 as an inpatient and thereafter doctor conducted surgery for left URSL with stent and thereafter he was discharged on 18-04-2011.
3. It is further undisputed fact that, thereafter complainant admitted in the nursing home of one doctor Imdad Ali, Consultant Urologist & Andrologist at Bellary for severe abdominal pain wherein the said doctor diagnosed the decease complainant as he was suffering from Bilateral renal calculi, Bilateral hydronephrosis/ Hydroureterosis with stent in left side. Therefore the same doctor conducted another surgery on complainant on 04-07-2011, stent was removed and thereafter he was discharged on 06-07-2011.
10. In view of these undisputed facts between the parties, we have not referred the related documents and affidavit-evidences of the parties as appreciation of those part of evidence is not necessary.
11. The first allegation of the complainant is that, after surgical treatment by opposite on 16-04-2011 and discharge of him on 18-04-2011, doctor advised him to appear before him for revival and checkup on 03-05-2011. Accordingly he appeared before him on 03-05-2011, opposite doctor advised him to follow the same medicines as prescribed earlier.
12. This fact was denied by the opposite doctor in reply to the legal notice issued by the complainant and in Para-2 of his written version with an continuation that, complainant not at all appeared before him on 03-05-2011 for revival and checkup as his advise.
13. The second allegation of the complainant is that, on 11-06-2011 he consulted opposite doctor on the complaint of abdominal pain, but doctor not treated properly. Opposite doctor denied this fact in his reply notice Ex.P-13, however this fact was admitted in Para-5 of his written version. His contention is that on 11-06-2011 the complainant came to his hospital on the complaint of fever, as such removal of stent during that period would be determinantal to his health, in other words, the say of the doctor is that on 11-06-2011 complainant approached him but not on the complaint of complications in his abdominal, and removal of stent was deferred as it would be determinantal to the patient as he was suffering from fever. Ex.P-6 the prescription issued by opposite doctor dt. 11-06-2011 clearly establishes the fact that, the complainant approached the doctor on 11-06-2011, it is fact that, some medicines prescribed by the doctor for fever. Except these facts, Ex.P-6 not discloses the fact that, the removal of stent was deferred, because of the fact that removal of stent was determintal to him.
14. Hence we have to appreciate the evidence of PW-1, documents Ex.P.6 and reply notice at Ex.P-13 and written version of opposite and his affidavit-evidence with the principles of rulings referred by them.
15. The learned advocate for complainant relied on the following three rulings and submitted that, complainant has discharged his burden of proving the medical negligence against opposite doctor
1) I 2011 (4) CPR 11 (NC) Dr. Martin Joseph & Anr. V/s. Faizal (minor) represented by his father and natural guardian
2) II 2010 SAR(Civil) 550 V.Kishan Rao V/s. Nikhil Superspeciality Hospital
3) III (2008) CPJ 270 United India Insurance Company Ltd., V/s. Govind Ballabh Kapria and others.
16. The learned advocate for opposite relied on the following rulings with medical literature and submitted before us that, implainted stent can be removed at any time within one year. On 11-06-2011, the health condition of complainant was not fit for to remove stent, accordingly the removal was deferred, hence there is no negligence on the part of opposite doctor.
We have appreciated the facts pleaded by the parties, their respective evidences and documents in the light of the principles of the ruling relied by them.
17. Case of doctor Martin Jesoph and another which is noted at Sl.No.1 relied by the complainant in which wooden piece binding in the foot of complainant was not detected by the first treating doctor, it was detected by the second treating doctor. The lordships of the Hon’ble National Commission held the medical negligence of the doctor. First treating for failure to detect the wooden piece even after several clinical tests.
Here the facts of the present case are slightly differing to the facts noted in the above said case. In the instant case the doctor himself implanted stent, he not removed on 11-06-2011 even though some complication arisen in the health of complainant.
In the second case relied by the complainant, the Hon’ble Supreme Court opined with regard to expert evidence in a case of medical negligence and clearly laid down a law by stating that, Fora is not bound in every case, to accept the opinion of expert witness.
In he instant case, there are no such medical complications involved for to get expert’s opinion, this Forum is able to decide the dispute in between the parties with available evidences of them. Hence we are of the view that, to resolve the dispute in between the parties there is no need to get expert’s opinion.
18. The third ruling referred by the learned advocate for the complainant says that, the principles of doctrine of Res-Ipsa-Liquitur can be made applicable in medical negligence case if as things themselves speaks about the negligence, then there is no need of actual proof of them. We have kept in the mind of the said principles and appreciated the evidence on both sides.
19. The rulings referred by the opposite are as under:
1) 2005 CTJ 334 Selva Mani V/s. Dr. KP Singh & Another.
2) 2005 STPL (LE) 34787 SC Jacob Mathew’s V/s. State of Punjab & Anr.
The case noted at Sl.No-1 is pertaining to criminal medical negligence of doctor and his liability. Consumer Forums are not competent to deal with criminal negligence of the doctor. Forums are dealing with mere negligence of the doctor and remedies to the persons injured. Criminal negligence is of higher degree than that of mere negligence, mere negligence will not attract criminal punishment. Consumer Forums are awarding compensation amount for the injuries suffered by the consumers but not competent to punish the persons who committed criminal negligence para-4 of the said judgment deals with it in detail with regard to difference of mere negligence and criminal negligence. Hence we are of the view that, with great respect to their lordships of the ruling cited above is helpful to the case of complainant but not to the case of opposite. Other rulings referred by the learned advocate for opposite are not produced and synopsis are not available with it.
20. From the above facts, it is very much clear that, complainant approached opposite on some complaint on 11-06-2011, opposite prescribed some medicines vide prescription Ex.P-6. Ex.P-6 not discloses the fact that, removal of stent implanted on the complainant was determinantal to him, because of his poor health condition. Ex.P-13 reply notice given by him to the legal notice of complainant not disclosing this fact but simply, he denied the visit of complainant on 11-06-2011 in Para-4 of it.
By looking into the entire facts noted above, we surprise to note that, why opposite doctor has denied the visit of complainant on 11-06-2011 in his reply notice Ex.P-13 and why he admitted the visit of complainant to his hospital on 11-06-2011 as admitted in Para-5 of his written version.
21. The facts noted in Para-4 of his reply notice at Ex.P-13 and facts noted in Para-5 of his written version are quite contrary to each other. No explanations are out coming from the side of opposite by clarifying of such contrary admitted facts. Opposite doctor cannot say lie in such manner as noted in Para-4 of his written reply at Ex.P-13, and facts stated by him in Para-5 of his written version.
22. Opposite not filed any medical records maintained by him in respect of this patient in his hospital to substantiate his allegations to ascertain as to whether complainant not approached him on 03-05-2011 or on 11-06-2011 or whether his health condition was not proper to remove stent implanted on him as it was determinantal to his health condition and thereby he tok the decision of deferring the removal of stent.
23. The medical records Ex.P-7 to Ex.P-11 pertaining to MS Urologist Center at Bellary clearly goes to show that, abdominal pain developed to the complainant for non removal of stent at proper time. Medical literature filed by the opposite not contrary to the observations as made in Ex.P-7 to Ex.P-11 removal of stent can be made upto one year if there were no medical complication in the health of complainant, as such, we are of the clear view that, opposite doctor not only maintained case records pertaining to the treatment given to the patient’s in his general, and the case history sheet of the complainant in particular, because of his fault he started shifting his responsibility on the shoulder of the complainant by making allegations of negligence by the complainant himself. This our view is supported by medical reports Ex.P-7 to Ex.P-13, hence we are of the view that, there is no meaning in the contention of opposite that, complainant himself shows his negligence and not appeared before him for revival and checkup as it is not supported by any kind of medical records or case records of complainant. All the contrary story created by him is because of out coming from the clutches of law. Hence, it is a clear of case of negligence by opposite in post surgical treatment.
The first allegation regarding the visit of complainant on 03-05-2011 and advising him to follow the same medicines is taken as true and correct in view of double contrary false versions of the doctor and with regard to visit of complainant on 11-06-2011 on the abdominal complaint is also true and correct.
24. Another allegations against opposite doctor was that, doctor not properly diagnosed of the decease of complainant before conducting surgical treatment by him. In support of this contention, the complainant has relied on documents Ex.P-7 to 11, which are the case history papers and Ultra Sound Report of Abdomen with discharge summary of M.S. Urology Center at Bellary.
In the light of the submissions made on both sides, in this regard we have referred Ex.P-7, 8 & 9 of the above report with discharge summary report at Ex.P-13 clearly establishes the fact that, complainant was suffering from Bylateral renal calculi, Bilateral hydronephrosis/hydroureterosis (L>B). This fact is not out coming in the Ultra Sound Scanning Report and in other test reports of opposite doctor vide Ex.P-1 to Ex.P-3. Hence, the principles of the case of Doctor Martin Joseph & Another is followed and the principles noted in a case United India Insurance Company Ltd., V/s. Govind Ballabh Kapari & others case. The Res itself clearly discloses the fact that, there is negligence of opposite doctor and there by we have applied the doctrine of Res-Ipsa-Liquotor and thereby, we come to a conclusion from all the facts discussed above, that the opposite doctor was negligent in treating the complaint before surgery as well as after surgery he allowed the stent implanted in his body without proper, reasonable and necessitated grounds or reasons, now he wanted to jerk his responsibility on the complainant, with after thought false contentions. Accordingly we answered Point No-1 in affirmative.
25. As regards to Point No-2 is concerned, complainant filed Ex.P-7 to 11, which are diagnostic reports and discharge summary reports with case history, but he not filed any bills or receipts regarding the amount spent by him for second operation in M.S. Urologist Center at Bellary. No other type of evidences out coming from his side to ascertain the amount spent by him at that time. But the contents of those reports are quite sufficient to say that, complainant was compelled to go for second surgery due to non application of medical mind by the opposite either on 11-06-2011 or prior to it. No doubt complainant not mentioned that spent amount, however, we have taken note of the nature of the surgrical treatment and required medicines, we have granted a lumpsum amount of Rs. 15,000/- to him which is payable by opposite doctor. WE have considered the length of mental and physical sufferings due to negligence of the opposite doctor, another sum of Rs. 20,000/- is awarded. We have granted a lumpsum amount of Rs. 3,000/- towards deficiency in service on the part of opposite doctor. We have also granted an amount of Rs. 2,000/- towards cost of this litigation.
Hence, complainant totally entitled to get an amount of Rs. 40,000/- from opposite doctor. Complainant also entitled to get interest at the rate of 9% p.a. on total sum of Rs. 40,000/- from the opposite doctor from the date of this complaint till realization of the full amount. Accordingly we answered Point Nos. 1 & 2.
POINT NO.3:-
26. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
Complainant is entitled to recover a total sum of Rs. 40,000/- from the opposite.
Complainant is entitled to recover interest at the rate of 9% p.a. on total sum of Rs. 40,000/- from the date of this complaint till realization of the full amount.
Opposite is hereby granted one month time to pay the said sum with interest from the date of this judgment. -
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-06-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
