BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.45/2016

Date of filing: 22/03/2016

Date of disposal: 21/06/2019

P R E S E N T :-

- V/S –

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to compensate of Rs.20,00,000/- towards medical expense, mental agony, loss of life alongwith cost of complaint and any other reliefs etc.,

2.      The facts of the case in brief are that;

          It is case of the complainant that, the deceased , husband of Complainant No.1 and father of Complainant No.2 was visited to Ops Hospital in the month of August 2015 for throat problem and Op.No.2 Dr.B.H. Kerudi made examination of deceased  and suggested to make endoscopy scanning in Kumareshwar Hospital, Bagalkot as endoscopy scanning machine was not functioning in Op’s Hospital at that time and further the deceased  underwent endoscopy scanning in Kumareshwar Hospital and visited to OP’s Hospital alongwith endoscopy report after 3-4 days from his first visit. Dr.B.H.Kerudi on seeing the said report revealed that,  was suffering from throat cancer in 3^rd stage and referred to OP.No.1 for further diagnoses and treatment.

          It is further contended that, as per the reference of OP.No.2 deceased  consulted OP.No.1 and OP.No.1 suggested to make MRI Scanning and the deceased  underwent MRI Scanning at Kerudi Hospital, Bagalkot i.e. OP.No.2 in which, the OP.No.1 is consultant and surgical oncologist. On seeing the MRI Scanning report, the OP.No.1 revealed that, the deceased  was suffering from throat Cancer in 3^rd stage and OP.No.1 also suggested to undergo two operations, one operation was for healing of cancer part and fixing vocal machine for speaking and another one operation was for flap of muscle and neck skin at operated part and further the OP.No.1 said deceased  and complainant that, if operation was not conducted, the patient would not alive only for six months and OP.No.1 assured that, if operation was conducted the patient would live for more than 6-8 years happily and also assured that, there is no any life threaten from operations and further OP.No.1 suggested for Biopsy Test. As per OP.No.1 suggestion deceased Lokappa underwent Biopsy Test and letter was discharged from OP’s Hospital.

          At the time of discharged, OP.No.1 suggested to deceased  to visit as earlier as possible to Hospital in case of breathing problem. After 2 days from the date of discharge, the deceased Lokappa was suffering from breathing problem, hence the deceased Lokappa was admitted in OP’s Hospital as indoor patient and OP.No.1 operated Lokapp’s neck by making hold (Tracheostomy) and the deceased Lokappa was shifted to ICU for one day letter shifted to ward and further on the receipt of Biopsy Test report OP.No.1 suggested deceased Lokappa and complainants to undergo above earlier said operation and the deceased Lokappa and complainants consented to undergo operation that, the OP.No.1 placed order for vocal machine to be fixed at throat for speaking and deceased Lokappa was admitted in OP’s Hospital till vocal machine was received. When vocal machine was received by OP.No.1 on 14.09.2015 Lokappa was operated by Op.No.1 for toatal Laryngectomy with TEP placement, later deceased Lokappa was shifted toward from ICU.       

          It is further contended that, the deceased Lokappa on 10^th day of post operation date in OP’s Hospital developed sudden gush of blood from the neck wound resulting, loss of more than 200 ML blood and complainants asked OP.No.1 about the reason for sudden gush of blood from the neck wound, but OP.No.1 did not respond and immediately OP.No.1 took the deceased Lokappa to operation theatre from emergency operation and performed operation and further complainant alleged that, due to OP.No.1 negligent Act deceased Lokappa further developed sudden gush of blood from the neck wound and OP.No.1 admitted his mistake and OP.No.1 assured that, the same problem would not repeat again and promised to exempt to charge any charges relating to above said operation and further in OP.No.1 summary of discharge OP.No.1 admitted that, there was bleeding from the left superior thyroid which was ligated. The deceased Lokappa shifted to ICU for 2 days and later shifted to ward for 8 more days as indoor patient and further complainant asked to exempt above said operation charges at the time of discharge, but OP.No.1 charged for above said operation and did not agree to exempt any charges as assured earlier by him.

          It is further contended that, at the time of discharge, OP.No.1 suggested to undergo one more surgery with closure of the fistula with PMMF and skin with delto pectoral flap operation, after healing of above said first operated wound and deceased Lokappa took follow up treatment as suggested by OP. As per OP.No.1 suggestion deceased Lokappa admitted on 24.10.2015 for second operation as stated earlier by OP.No.1. The OP.No.1 did operation and shifted to ICU and kept on ventilator support and OP.No.1 went out of station without caring post operation treatment of the deceased Lokappa and Op.NO.1 had not appointed any expert person to take care Lokappa after post operation treatment and further the OP.No.1 attended the deceased Lokappa and took him operation theatre on 07.11.2015 and inspected health condition and later in the evening Op.No.1 declared Lokappa as dead.         

          It is further contended that, second operation is for fistula closer with PMMF and DP flap was not major operation as stated by OP.No.1 earlier and at the time of admission, according to Op.No.1’s discharge summary report, the deceased Lokappa was conscious, oriented and hemodynamically stable. However, due to OP.No.1’s negligent act of operation and wrong diagnose Lokappa died. When the OP.No.1 declared Lokappa was dead, the complainants saws that, there was holes on right and left side abdomen, middle part of abdomen was opened horizontally, skin was removed from chest portion and there was cut wound mark at right thigh. OP.No.1 has operated abdomen part of the deceased Lokappa to take kidney and  other organs of body. Hence, due to OP.No.1’s negligent act Lokappa died thereby, OP.No.1 has committed medical negligence and deficiency in service as per C.P. Act 1986.   

          Finally, the complainant has got issued a legal notice through his Counsel on dtd: 22.02.2016 to the OP.No.1 and the same notice has been served to the OP.No.1. but, he has not replied to the said notice. Hence, due to the above said unfair trade practice on the part of OP.No.1 side, the complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.

3.        After issue of notice to the Ops. The Ops are appeared through their counsel and OP.No.1 filed written version and OP.No.2 filed memo stating that, the written version of OP.No.1 adopt the same and contended that, the allegation made in the complaint are all false, frivolous and vexatious, the contents of complaint in para No.1 to 5 are all true and admitted by the OP.No.1 and further contended that, on the 10^th day of operation there was sudden gush of blood from the neck wound resulting in loss of blood is true and this OP submits it is a known complication of the present surgery. But, the contentions that, the OP did not respond to the enquiries of the complainant and  immediately took the deceased Lokappa for an emergency operation etc., are false and denied by this OP. The OP.No.1 has explained the usual complication of the surgery and has informed the complainant No.1 and her grandson Holabasu Teli and have obtained their consent and performed the emergent surgery and further the contents of para No.7 & 8 are all false and further the contents of para No.9 is admitted by the OP that, the second surgery of closer of the fistula with PMMF was done and this OP submits that, in view of the known common complications of first surgery, the second surgery of pectoralis major miocutaneous flap is performed on 04.11.2015.

          It is further OPs contended that, after performing the operation and shifting the patient to ICU and keeping the patient on ventilator support went out of station without caring post-operative treatment etc., are false and are denied by this OP. The OP.No.1 submits that, after the surgery he had kept the patient in the ICU under the efficient supervision of qualified intensiveists like Dr.Mohan Pujar and Dr.Santosh Naik who are qualified M.D. (Anesthesia) IDDCM and Kerudi Hospital is the only institution in the districts manned by qualified intensiveists. The surgeon need not be present since the post-operative care in the ICU is taken by qualified intensiveists. The Ops have examined the patient on 07.11.2015 and later in the evening the patient has died.   

          It is further contended that, the contents of para No.11 & 12 are false and Ops submits that, the Fistula closure with PMMF and DP flap is a major surgery which has been performed by OP.No.1 with all the care and caution to be taken by a qualified oncologist. There are no grounds of attributing of any negligence what so ever to this Op in the present scenario of the third stage of a cancer patient and further the holes in the abdomen are required to be done for the purpose of feeding the patient since feeding through the neck could not be done under the circumstances and there is absolutely no medical negligence, unfair trade practice and deficiency in service on the part of the OPs in the entire process of treatment surgery and post-operative care of deceased Lokappa in the light of the highly advanced and technical surgery under taken by the Ops with consent and clear understanding of the deceased Lokappa and the Compt.No.1 and her grandson who were present on the relevant occasions and further the OP.No.1 has replied the legal notice on dtd: 23.03.2016 which is served to the complainants advocate on dtd:30.03.2016. The nature of the complainants allegations itself are self-serving with an intention to extract money from the Ops on baseless allegations. Hence, Ops prayed for dismiss the complaint with compensatory costs.   

4.      In support of the claim in the complaint, the complainant has filed his affidavit and produced some documents, which are as under;

5.      On the other hand OP.No.1 has filed his affidavit and produced documents i.e. entire case sheet of the deceased Lokappa husband of the complainant.   

6.      Now, on the basis of above said pleadings, oral and documentary evidence and written arguments filed by the both parties, the following points that would arises for adjudications are as follows:  

Our Answer to the above points are:-

Point No.1 – Affirmative.

Point No.2 – Partly Affirmative

Point No.2 - As per the final order for the following:

R E A S O N S

7.  POINT NO.1 & 2:     We proceed both the points together who avoid repetition of facts, hence we taken together.

The complainants have filed this complaint against the OPs about the Medical Negligency and further complainants submits that, the deceased Lokappa was the husband of  Complainant No.1 and father of Complainant No.2, the deceased Lokappa visited the OP’s Hospital in the month of August 2015 for Throat problem, OP.No.2 examined the deceased Lokappa and suggested to make endoscopy as such endoscopy had been made at other hospital i.e. Kumareshwara Hopsital, as per the suggestion of the OP.No.2 the deceased Lokappa has examined the endoscopy to the Kumareshwar Hospital and furnished the endoscopy report to the OP.No.2 after the 4 days and further the OP.No.2 after scanning the report said that, the deceased Lokappa was suffering from Throat Cancer in 3^rd stage.

After that, the deceased Lokappa visited to OP.No.1 to take second opinion to the said diseases, the OP.No.1 suggested for MRI scanning and in that also same report has been found and suggested to undergo two Operations one is for healing of cancer and fixing vocal machine for speaking and another one for Flap of muscles and necks skin at operated part.

Further complainants submits that, if these operations have been made deceased can be survived for 6 to 8 years, otherwise he might not survive for 6 months and OP No.1 also assured that, there is no threatening from the operations, further complainants submits that, as per the direction of
OP.No.1 the operation had been made on dtd: 14.09.2015 and he was shifted to ICU, after 10 days of operation sudden gush of blood came out from the neck and Complainant No.2 approached/asked the OP.No.1 about the same, but OP.No.1 did not react anything and another emergency operation had been made and promised that, same had not be again and further at the time of discharge the OP.No.1 suggested to undergo one more surgery with closure of Fistula with PMMF and Skin with deltopectrol flap operation after healing above said first operated wound as per the suggestion of OP.No.1 deceased Lokappa admitted on 24.10.2015 for second operation as stated earlier and shifted to ICU and kept on ventilator support and OP.No.1 went out of station without carrying post-operation treatment and OP.No.1 had not appointed an expert to take care of deceased Lokappa, after 13 to 14 days, the OP.No.1 came back and took Lokappa in a operation theatre i.e. on 7.11.2015 and declared death in the evening and further complainants complaint is that, after declaration of Lokappa death, the complainants saw that there was a holes on right and left side of abdomen, middle part of the abdomen was opened horizontally, skin was removed from the chest portion and there was cut wound mark at right thigh. The OP.No.1 has operated abdomen part of Lokappa and took out kidney and other organs of the body.

On-going through the records on file, it is undisputed fact that, Complainant No.1 husband deceased Lokappa had been admitted to the hospital of OP.No.1 and it is also undisputed fact that, OP had operated the deceased Lokappa the most important thing we have to look after is that, whether OP.No.1 & 2 have made a Medical Negligency towards the deceased Lokappa. Further we have perused the Summary Report issued by the OP.No.1. In page No.2 paragraph 2 it is noted that, “On POD 10 at 8 PM patient developed sudden gush of a blood from the neck wound he was taken to operation theatre and emergency re-exploration of the neck was performed there was a bleeding from the left superior thyroid pedicle which was ligated wound irrigated from normal saline” as per this paragraph it is clear that, the OP.No.1 suggested the deceased Lokappa for second operation and he was shifted to a ICU as per the complaint, another thing we have to observe that, the age of the deceased was 65 years and Cancer in a 3^rd stage as per the documents produced before this Forum. As per the objection of OPs, the OPs submits that, with the care and cautiously deceased Lokappa had been treated, but unfortunately, they cannot save the life of the deceased Lokappa, anyhow OP also failed to prove that, after post-operation period of the deceased Lokappa, the OP.No.1 was present at the hospital and he had not moved anywhere as per the allegation made by the complainants and even OPs submits that, Complainant No.1 had signed on a consent form. Here we can make out the points which are cited in a citation 2018 sub clause II CPR 341 (NC) in C.C.No.70/2007 Mulkraj V/s. Jaipur Golden Hospital and Others, in this case page No.351 the Hon’ble Presiding Member clearly held that, However, cannot feign innocence and ignorance of absence of license of parent institution which they are an inextricable part and parcel of land hold a position of responsibility towards-This amounts to negligence covert and contributory even if not overt-though there is no medical negligence caused by OP’s but, keeping view of unethical and un-fair trade practices, hospital/OP-1 shall pay Rs.10 lakhs and OP-2 and 3 shall pay Rs.5 lakhs jointly and severally to complainant No.1.

Further a doctor who have full knowledge, who holds surgical operation must have to inform the patient who visits him for suitable treatment, who trusted their doctors and hospitals and doctor should not operate blindly without considering the situation of the patient and in this case deceased Lokappa was in 3^rd stage of cancer at the age of 65, a common person without degree of a doctor can access that, in this old age whether the patient will respond for operation or not? and it is bounded duty of the doctor to tell day to day progress of the patient to his relatives. But in the instant case after 14 days, the OP.No.1 declared that, the patient is dead moreover, he kept in a ICU with ventilator it seems that, here OP.No.1 made Medical Negligency to gain more from the complainants, hence we come to the conclusion that, the OP.No.1 made medical negligency by not giving proper medical assistant and failed to direct proper direction to the complainants, hence OP.No.1 is liable to return all the bills which he had collected from the complainants towards the operations and admission charges to the complainants. Here we have to observe that, Complainants are not entitled for the reliefs as they claimed in a complaint around 20 lakhs, since the deceased Lokappa was suffering from cancer, the scanning MRI reports are must to diagnose the diseases. As such, we answer Point No.1 in affirmative and Point No.2 in partly affirmative.

8.      POINT NO. 2:     In view of our findings on the above points, in the result, we pass the following: 

//O R D E R//

1. The complaint is partly allowed.
2. Further OP.No.1 is directed to pay the entire medical bills and operation charges along with the hospital charges which are received from the Complainants with interest @ 9 % from the date of collecting the last bill within one month.
3. Further OP.No.1 is directed to pay Rs.25,000/- towards compensation and Rs.1,000/- towards the litigation charges to the Complainants.
4. Further OP.No.1 is directed to pay this amount within one month failing which, OP.No.1 is directed to pay Rs.50,000/- to the Consumer Welfare Fund.
5. Complaint is dismissed against OP.No.2.
6. Send the copies of this order to the parties free of cost.

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 21^st day of June, 2019).