D.o.F;14/11/11
D.o.O:21/11/2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.304/11
Dated this, the 21st day of November 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.BEENA K.G : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Jeffy Philip, S/o Philip Joseph,
Kizhakkekuttu, West Eleri, : Complainant
Po.Punnakkunnu.
(Adv.N.K.Manoj Kumar)
1.Dr. Abdul Salam,
K.J.Thomas Memorial Co-Operative Clinic,
Vellarikundu , Balal Hosdurg, Vellarikundu Po.
2. Sanitha.K.P, Staff Nurse,
K.J.Thomas Memorial Co-Operative Clinic,
Vellarikundu , Balal Hosdurg, Vellarikundu Po.
3. The Konnakkad Co-operative Hospital Society Ltd. : Opposite Parties
No.54,(rep. by its President, Konnakkad,
Malom , Hosdurg, Po.Konnakkad.
4. The Secretary, The Konnakkad Co-operative Hospital –
Society Ltd.No.54, Malom , Hosdurg, Po.Konnakkad.
(Adv.Jose Sebastian)
ORDER
SMT.SHIBA.M.SAMUEL : MEMBER
The case of the complainant in brief is that on 24/6/11 while the complainant was doing the farm works he was injured on his leg with a small thin peace of mid rib of coconut palm leaf got stuck and embedded beneath skin. The complainant went to the K J Memorial Co-op Clinic in Vellarikund that is the Ist opposite party for removing the foreign body and after removing the same, the 2nd opposite party herein administered a TT injection to the complainant’s left upper arm . He felt instant acute pain , but opposite parties 1&2 consoled the complainant that it would subside after some time. After his return to the house it began to aggravate rapidly and spread to other parts including the forearm and shoulder , when the pain became unbearable he was constrained to visit the clinic again in the wee-hours on 25.6.2011 .The duty doctor after examination prescribed some pills at first and on a second thought he struck off the prescription and advice the complainant to go over to the Deepa Nursing at Kanhangad for further treatment. Thereafter the complainant admitted at Deepa Nursing Home on 26/6/2011 , since his condition was so critical he was discharged at his request on 27/6/2011 and he was taken to Yenappaya Medical College Mangalore. The complainant was instantly admitted in the ICU for about 10 days and subjected to an emergent operation on his entire left hand and also on the back of the left shoulder. Apart from Surgery he was also subjected to split skin grafting . The complainant alleged that the whole tragedy has been caused due to the grave medical negligence and deficiency of service on the part of opposite parties 1&2 especially as per the complainant, 2nd opposite party is not a qualified nurse to administer TT injection. The complainant further alleged that on admission at the Medical college Mangalore the opposite parties 3&4 who are the President and Secretary of the Ist opposite party’s clinic which was owned and run by Konnakkad Co-op Society which is represented by Ops 3&4 issued a cheque for Rs.25,000/- towards part payment of the medical expenses of the complainant. Apart from the physical disability and disfigurement the complainant had to undergone acute physical pain and mental agony due to the injury. The complainant alleged that the opposite parties are liable to compensate the complainant for the damages sustained to him due to medical negligence and deficiency of service on the part of opposite parties.
2. Opposite parties 1&2 filed version contending that the complainant approached Ist opposite party with complaint of accidental piercing of some foreign body on his left leg and it was removed by him with the help of 2nd opposite party and prescribed medicine also. He specifically contended that even though TT injection was suggested it was not taken by the complainant saying that he used to take TT injection periodically. The complainant had been charged Rs.40/- as consulting fee and Rs.40/- as C&D charge. They vehemently contended that the TT injection was not administered to the complainant as per Ist opposite party’s direction. The other allegation in the complaint such as he consoled the complaint that the pain will subside etc were emphatically denied . The further contention in the complaint about the hospitalization of the complainant at Deepa Nursing Home Kanhangad ,Yenappaya Medical college Mangalore are not known to them, whatever treatment were done by them were with care and caution and with utmost good faith and there is no reason to cause damages to the skin or tissues of his left hand or shoulder, they submitted that the complainant is trying to falsely attribute liability for his disease or injuries caused due to extraneous reasons on the shoulders of the opposite parties taking advantage of the prescription for TT injection.
2. In the version filed by opposite parties 3&4 they contended that the allegation of TT injection to the complainant was totally denied and contended that the treatment given to the complainant from Deepa Hospital and as well as Yeanappaya Medical College Mangalore are not aware to them and the history of treatment given to the complainant from Yenappaya Medical college are also false and hence denied the same. The main contention of complainant that the opposite parties 3&4 are vicariously liable for the act of the Ist 2nd opposite party and it is their guilty for appointing unqualified nurse in the clinic were vehemently objected by them and they specified on the allegation that eventhough TT injection was suggested and it was not taken by the complainant since he used to take a periodically and the medical bill issued from the clinic would conclusively proved that no TT injection was administered to the complainant by the clinic and he purposefully suppressed the bill issued from the clinic. They further alleged that they never paid any amount to the complainant . The main contention raised by these opposite parties were that they never issued any cheque as alleged by the complainant and the said cheque was lost from the clinic and the same was reported to the bank immediately and suspected that the cheque was stolen by him with a malafide intention to create false evidence. The non presentation of the cheque would falsify the case put forwarded by the complainant. The document produced by him would go to show that the diagnosis from Yenappaya Medical College is necrotizing fasciitis and this disease is commonly known as flesh eating disease or flesh eating bacteria syndrome . The treatment given from the Ist opposite party is not a cause for complainant’s disease. Therefore the opposite parties are not liable to pay any amount by way of compensation . Hence the complaint is liable to be dismissed.
3. Now the points arise for consideration are:
1. Whether there was any TT injection administered to the complainant?
2. Whether the administration of TT injection was caused any health problem to the complainant?
3.Whether there is any medical negligence or deficiency in service on the part of opposite parties ?
4. If so any relief and costs
4. Point.Nos 1&2; The learned counsel for opposite parties vehemently contended that there is no basis for the allegation of the complainant . As per the complainant the whole tragedy has been caused due to the grave medical negligence and deficiency in service on the part of opposite parties 1&2 while treating the complainant at the clinic of the opposite parties 3&4 . The complainant was never allergic to TT injection and he used to get it occasionally as he was a farm worker. The further allegation that the im proper administration of TT by an unqualified nurse ie. OP.No.2 herein in the most negligent manner and faulty medicament have caused the grave injury and damage to the complainant and there was acute imperfection and medical negligence on the part of opposite parties 1&2. Therefore first of all forum has to decide whether TT injection was administered or not. In order to answer this point we perused the documents before us . The most important document about this aspect are the prescription and the cash receipt issued by the opposite parties are in respect of consultation and treatment of the complainant. The main case of OP.No.1 is that eventhough TT Injection was suggested by him , it was not taken by the complainant saying that he used to take TT injection periodically . In such a situation we have analyzed the situation before us.Ext.A1 is the prescription issued by OP.No.1 and it is true that the TT was suggested by the OP.NO.1 but whether it was administered on the complainant is a very crucial aspect to be proved. For this, the cash receipts of the medicine purchased by the complainant is absolutely necessary but surprisingly the same has not been produced by the complainant herein ,whereas the opposite parties 3&4 produced the duplicate computer print out of the receipts in respect of the treatment given by Ist opposite party to the complainant and the same is marked as Ext.B1. It is highly pertinent to note that the injection charge is not taken from the complainant as per Ext.B1. The complainant had a specific case that TT Injunction was administered on him by 2nd opposite party and if at all the same is correct then the charge for the administration of the same will have definitely a place therein Ext.B1 and moreover the complainant had not produced any scrap of evidence to prove that he had purchased TT and thereby he failed to prove that he purchased TT injection from the OP clinic and TT was administered on him.
5. Eventhough the complainant further alleged that the improper administration of TT injection by an unqualified nurse in most negligent manner and faulty medicament have caused great injury and damage to him . The 2nd opposite party herein produced her certificate which was marked as Ext.B2 before the forum. We perused the same and found that Ext,.B2 is a certificate issued by Bharath Sevake Samaj for BSS diploma in Ist Aid and Practical Nursing course conducted in the year 2006-2008. But it is highly pertinent to note that the person who produced the registration certificate from Kerala Nursing counsel for their registration as a nurse, then only he/she becomes a qualified nurse as per the provisions of the Nurses and Midwives Act 1953 as amended as a registered Midwife under section (a) , who is eligible to practice in hospitals situated in Kerala. In this case it was the duty on the side of the complainant to raise objection at the time of marking of Ext.B2 certificate and also to challenge that Op.No.2 has not produced any registration certificate from Kerala Nursing Council. But such an objection was not raised by the complainant at any time. While concluding the first and 2nd point the Forum is of opinion that the complainant could not succeeded in proving the case that he had administered TT injection from the Op clinic.
6. Point No.3; Eventhough there was no direct evidence of the case of complainant with regard to the administration of TT injection, we are considering the other facts and circumstances of the case also. In this case there is no expert evidence tendered to prove his specific case that the entire tragedy has been caused due to grave medical negligence attributed against the opposite parties. In order to appreciate the rival contention of the OP certain fact has to be admitted in nature are to be remembered such as the disease of PW1 was diagnosed from Yeneppaya Hospital has ‘necrotizing fasciitis” which means flesh eating bacteria syndrome . It is a rare infection of a deeper layer of skin and subcutaneous tissues which quickly progressing and severe diseases of sudden onset. Reason for such a disease can be made out only with the assistance of an expert evidence in the case of Dr.N.T.Subramanyan and Anr. Vs. Dr.B.Krishna Rao and Anr. Reported in 1996 (2) CPR 247 contended that in the absence of expert medical evidence it cannot be established that there is a case of medical negligence. In this particular case even though the complainant had filed a witness list to examine the doctors who treated the complainant from Yenappoya Hospital, Mangalore and steps were taken against them to examine them ,the complainant failed to produce them and adduce evidence before the Forum. Therefore the Forum is in complete darkness about the disease namely ‘necrotizing fasciitis will any way cause due to the administration of TT . Moreover as per Ext.A4 the complainant admitted at Yeneppaya hospital with a history of complaint of swelling and peeling of skin over the upper limb and there is no whisper regarding the administration of TT are the reasons for his infection. The counsel for the OP vehemently argued that the peeling of skin and oozing of puzz will be their only if the injury which might have occurred many days before the admission of complainant to Yeneppaya Hospital. While considering all this aspects the forum is of the opinion that there is absolutely no evidence before us to conclude that the complainant had suffered every thing due to the deficiency in service from the opposite parties.
7. In the present case it is to be noted that there is no specific allegation against the doctors who treated the complainant in his evidence. It is quiet surprising for the forum that while cross- examining the PW1 by the counsel for OP.1&2 PW1 ‘ specifically stated that he do not have any complaint against OP.1’s treatment. The complainant has no case that OP.No.1 failed to discharge his duty as a prudent doctor who is expected to apply due care and caution towards the patient , the principal of res-ipso-loquitur ie. the failure of due care and caution as a prudent doctor. Eventhough the complainant alleges medical negligence on the part of opposite parties he failed to prove that OP.No.1 who is the person who treated him has not exercised due care and caution at the time of diagnosing and giving treatment and also failed miserably to prove the alleged medical negligence by letting in expert witness that whether the opposite party has committed any professional deviation.
8. Therefore the complainant had failed to prove the allegation of negligence on the part of opposite party instead of raising some allegation against them without proof. Another serious contention raised by the complainant is that on admission at Medical college Hospital Mangalore the opposite party assured the complainant to bear the entire hospital expenses for the expert treatment of the complainant , and paid an amount of Rs.25,000/- by issuing a cheque dt.26/7/2011 in favour of the complainant’s father Philip Joseph towards the part payment of the medical expenses of the complainant. But they never paid any further amount. In support of his argument complainant produced the photocopy of the the cheque leaf for Rs.25,000/- drawn on the Maloth Service Co-op Bank Ltd.Vellarikundu branch which is marked as Ext.A5 before this forum but unfortunately the same is not substantiated by the complainant by adducing oral evidence of either the father of the complainant or the concerned bank authorities even though the complainant filed a witness list to examine the Secretary, Maloth Service Co-op Bank Ltd.,Vellarikundu branch and for the cause production of cheque No. SB.0044053 dt.26/11/2011 .
9. The complainant alleged negligence against the hospitals ie opposite parties 3&4 in this case. But it is highly pertinent to note that the hospital cannot be prosecuted for medical negligence Justince Shiv Narayan Dhinga held that if there is any administrative negligence or a negligence of not providing basic infrastructure , which results in to some harm to an aggrieved person or such a negligence which is impersonal , the hospital can be held liable.
10. Negligence must be established and not presumed and when the complainant has failed to establish any case of negligence on the part of opposite party, in view of which the complaint is dismissed. The medical Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Medical negligence can be attributed against a doctor in cases only where the doctor act carelessly and in a manner which is not expected of a medical practitioner, therein such cases an action in torts would be maintainable . No documentary evidence or otherwise or otherwise has been brought before us to contradict the material and no expert evidence has been lead before us in support of complainant’s case. Hon’ble National Commission in its Order in Sethuraman Subramanyan vs. Triveni Nusing Home and Anr. 1986-1999 (Consumer 4412(NS) 1997 (2)1998 CTJ (CP) NCDRC ) held that in the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the opposite party. It has been held in several cases that negligence must be established not presumed. In 1986-1999 consumer 3447 (NS) 1991(I) CCC 142 (NS) 1999 CTJ 644(CP) (NCDRC) Kanhiya Kumar C vs. Park Medicare & Research Centre case.
In this circumstances after going through the records and arguments advanced by the parties in this case and the judgments of the Hon’ble Apex Court referred above, we find that the complainant has failed to establish any case of negligence on the part of opposite parties No.1 to 4 here in , in view of which the complaint is dismissed without cost.
Exts:
A1-Medical prescription issued by OP.1
A2-27/6/11- cash bill
A3-27/6/11- discharge bill
A4- Discharge summary
A5- copy of cheque leaf
A6-copy of lawyer notice
A7-to A9- A.D.Card
A10- reply notice
B1-duplicate computer print out
B2-copy of certificate issued by OP.2
B3-27/2/12-letter from maloth co-op bank to OP.1
PW1-Jeffy Philip- complainant
MEMBER MEMBER PRESIDNET
eva
