Tamil Nadu

South Chennai

395/2008

P.Manoharan - Complainant(s)

Versus

Dr.Ayaz Akbar,Oxymed HospitalmPrivate Ltd., - Opp.Party(s)

S.Baskaran

24 Sep 2018

ORDER

                                                                        Date of Filing  : 29.09.2008

                                                                          Date of Order : 24.09.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.395/2008

DATED THIS MONDAY THE 24^TH DAY OF SEPTEMBER 2018

                                 

P. Manoharan,

S/o. Mr. P. Pachaiappan,

No.15/8, Ramasamy Garden Street,

Royapettah,

Chennai – 600 014.                                                      .. Complainant.                                    

 

                ..Versus..

 

Dr. Ayaz Akbar,

Oxymed Hospital Private Limited,

No.786, Anna Salai,

Huma Hospital Building,

Nandanam,

Chennai – 600 035.                                                    ..  Opposite party.

          

Counsel for complainant      :  Mr. S. Baskaran

Counsel for opposite party  :  M/s. Zaffarullah Khan & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.1,06,000/- paid by the complainant and to pay a sum of Rs.20,00,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:

The complainant submits that the complainant had a chest pain in the 1^st week of November 2007.   On seeing the advertisement of the opposite party regarding the chelation therapy, EECP and Ozone therapy could be used to remove the block in the blood vessel without surgery was attracted by the complainant and consulted the opposite party.  After due test report, the opposite party informed the complainant that there are blocks and issued  Time Schedule for treatment.  The complainant had undergone treatment of chelation therapy EECP and Ozone therapy under the opposite party from 15.11.2007 to 17.12.2007.   The complainant paid a sum of Rs.1,06,000/- towards treatment.  On 14.12.2007 the blood test was done but the condition of the complainant worsened.  Since there was no improvement, the relatives of the complainant admitted the complainant in International Center for Cardio Thoracic and Vascular Diseases on 19.12.2007.  The diagnosis was “Severe Triple Vessel Cornory Artery Disease” and Echo was done on 20.12.2007 and Angiogram was done on 21.12.2007 and the complainant  was discharged on 22.12.2007.  The bypass surgery was done on 03.01.2008 and the complainant was discharged on 12.01.2008.  The complainant has expended a sum of Rs.3,00,000/- towards such treatment before International Center for Cardio Thoracic and Vascular Diseases. Due to the wrong administration of Chelation therapy, EECP and Ozone Therapy by the opposite party, the said amount was obtained by way of loan and paid to the hospital.  The complainant submits that the opposite party while administering Chelation Therapy EECP and Ozone Therapy took photos without the knowledge of the complainant and published in the website with false statement that the complainant was recovered from ailment. 

2.     The complainant states that “In the website, http://your-doctor.com / patient_info / alternative_remedies / various_therapy  / fraud_topics/chelation.html#3, it is stated as follows:

Chelation Therapy ...

Conclustion:

 “Chelation therapy should only be used for heavy metal toxicity that has been diagnosed by a reputable physician.  It has no place in reversal or prevention of atherosclerosis, angina, high blood pressure, poor circulation or other cardiovascular (heart diseases).  CaNa2-EDTA can leach out other essential metals such as iron, zinc, copper and magnesium from the blood causing adverse health effects while having no effect on calcified atherosclerotic plaques.

Although we do not wish to minimize problems caused by heavy metal toxicity it generally is quite rare and normally requires specific exposure or risk factors.  A vast majority of people do not come into significant contact with toxic heavy metals. 

If any person solicits your business claiming that heavy metal toxicity might be a problem for you and wants to do testing and treatment our advice is to turn away and run.    If you are concerned you might have risk factors or exposure to toxic heavy metals visit a reputable physician”.  It is clear from the above that chelation therapy and EECP are not advised for heart patients.  But the opposite party not only did the wrong treatment also, with a malafide intention of extracting money from the complainant. 

3.     The complainant submits that the opposite party not only acted negligently but violated the professional ethics by taking photograph while giving treatment to the complainant without his knowledge, consent, permission and authority but published the photograph in the Internet also.  The act of taking a photograph of a patient while giving treatment by a Doctor and publishing the same amounts to infringing into the personal life of the patient, the complainant.  Moreover, because of the treatment called “Chelation Therapy”, EECP and Ozone Therapy given by the opposite party, the problem of the complainant aggravated and he had to undergo bypass surgery at the young age of 34 years.  He could not work as before as his work force had come down to 50%.  The complainant had to borrow amount to the extent of Rs.4,10,000/- and is repaying with interest.  Thus, the complainant is put to financial strain and hardship also.  Hence the complainant issued a legal notice dated:18.07.2008 to the opposite party but the opposite party neither replied nor complied to the demands of the complainant.  Hence the complaint is filed.

4.      The brief averments in the written version filed by the  opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The opposite party states that the claim of the complainant for refund of the amount paid towards the treatment is unsustainable.  The opposite party states that the medical prognosis was not the subjective satisfaction of the complainant and cannot be a reason for seeking refund of the medical expenses incurred.  The opposite party states that the complainant had severe Coronary Vessel Block and could have complications even in other forms of treatment administered by opposite parties is an acceptable practice and is recognised by the Government of India.  The opposite party states that Chennai Port Trust also recognized the treatment extended by the opposite party which is also speaks only regarding Arterial Clearance Therapy and nothing about the Chelation therapy, EECP and Ozone Therapy.    The Indian Oil Corporation Health Care Sector, the Star Health and Allied Insurance Company, the Government of Puducherry etc are recognition to the treatment extended by the opposite party are against the Chelation therapy, EECP and Ozone Therapy.  The opposite party states that the complainant after knowing fully well and accepted the nature of treatment had undergone the Chelation therapy, EECP and Ozone Therapy treatment.  The opposite party states that the complainant has paid a sum of Rs.1,06,000/- towards various treatment given by the opposite party.  The compensation claimed for mental agony and other heads are imaginary and are exorbitant.  Therefore there is no deficiency in service on the part of the opposite party and hence the complaint is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B8 are filed and marked on the side of the opposite party.

6.      The points for consideration is:-

1. Whether the complainant entitled to get refund of a sum of Rs.1,06,000/- paid to the opposite party for treatment as prayed for?
2. Whether the complainant entitled to a sum of Rs.20,00,000/- towards compensation with cost of Rs.10,000/- as prayed for?

7.      On point:-

Heard both sides.   Perused the records namely the complaint, written version, proof affidavits, documents etc. The learned Counsel for the complainant would contend that the complainant had a chest pain in the 1^st week of November 2007.   On seeing the advertisement of the opposite party Ex.A1 & Ex.A2 regarding the chelation therapy, EECP and Ozone therapy could be used to remove the block in the blood vessel without surgery was attracted by the complainant and consulted the opposite party.  After due test report Ex.A3, the opposite party informed the complainant that there are blocks and issued Ex.A4, Time Schedule for treatment.  The complainant had undergone treatment of chelation therapy EECP and Ozone therapy under the opposite party from 15.11.2007 to 17.12.2007.   The complainant paid a sum of Rs.1,06,000/- as per Ex.A6 Series towards treatment.  On 14.12.2007, the blood test was done as per Ex.A4 by the opposite party, but the condition of the complainant worsened.  Since there was no improvement, the relatives of the complainant admitted the complainant in International Center for Cardio Thoracic and Vascular Diseases on 19.12.2007.  The diagnosis was “Severe Triple Vessel Cornory Artery Disease” and due Echo was done on 20.12.2007 and Angiogram was done on 21.12.2007 and the complainant was discharged on 22.12.2007.  Ex.A7 & Ex.A8 shows the bypass surgery was done on 03.01.2008 and was discharged on 12.01.2008.  Ex.A8 is the Discharge Summary. The complainant has expended a sum of Rs.3,00,000/- towards such treatment before International Center for Cardio Thoracic and Vascular Diseases. Due to the wrong administration of Chelation therapy, EECP and Ozone Therapy by the opposite party, the said amount was obtained by way of loan as per Ex.A9 and paid to the hospital.  Further the contention of the complainant is that the opposite party while administering Chelation Therapy EECP and Ozone Therapy took photos without the knowledge of the complainant and published in the website as per Ex.A10 with false statement that the complainant was recovered from ailment which caused great mental agony.   8. Further the contention of the complainant is that “In the website, http://your-doctor.com / patient_info / alternative_remedies / various_therapy  / fraud_topics/chelation.html#3, it is stated that,

“Chelation therapy... AVAST MAJORITY OF PEOPLE DONOT COME INTO SIGNIFICANT CONTACT WITH TOXIC HEAVY METALS.  If any person solicits your business claiming that heavy metal toxicity might be a problem for you and wants to do testing and treatment, our advice is to turn away and run”.

From the above, it is clear the Chelation therapy had nothing to do with the heart problems.

It is further stated that, “In 1960, Meltzer et al., who had studied ten patients with angina pectoris, reported that there was no objective evidence of improvement in any of them that could be ascribed to the course of EDTA chelation treatment.   However, during the next two months, most of the patients began reporting unusual improvement in their symptoms.  Prompted by these results, Kitchell et at. Studied the effects of chelation on 28 additional patients and reappraised the course on the ten patients used in the original trial (2).  They found that although 25 of the 38 patients had exhibited improved angina patterns and half had shown improvement in electrocardiographic patterns several months after the treatment had begun, these effects were not lasting.  At the time of the report, 12 of the 38 had died and only 15 reported feeling better.   (This was no better than would be expected with proven methods and because there was no control group for comparison).  Kitchell et at. concluded that EDTA chelation, as used in this study, was “not a useful clinical tool in the treatment of coronary disease”.

9.     Further the contention of the complainant is that as per Ex.A11 Conclusion part reads as follows:

“Chelation therapy should only be used for heavy metal toxicity that has been diagnosed by a reputable physician.  It has no place in reversal or prevention of atherosclerosis, angina, high blood pressure, poor circulation or other cardiovascular (heart diseases).

CaNa2-EDTA can leach out other essential metals such as iron, zinc, copper and magnesium from the blood causing adverse health effects while having no effect on calcified atherosclerotic plaques.

Although we do not wish to minimize problems caused by heavy metal toxicity it generally is quite rare and normally requires specific exposure or risk factors.  A vast majority of people do not come into significant contact with toxic heavy metals. 

If any person solicits your business claiming that heavy metal toxicity might be a problem for you and wants to do testing and treatment our advice is to turn away and run.    If you are concerned you might have risk factors or exposure to toxic heavy metals visit a reputable physician” establishes that the opposite party deliberately administered Chelation Therapy, EECP and Ozone Therapy  to the complainant which is a killer of human life.  The complainant is claiming a huge sum of Rs.1,06,000/- paid towards medical expenses and a sum of Rs.20,00,000/- compensation for mental agony and mal-administration  etc.

10.    The learned Counsel for the opposite party would contend that the claim of the complainant for refund of the amount paid towards the treatment is unsustainable.  The complainant has not proved any irregularity or professional negligence for seeking refund of the medical expenses.  But on a careful perusal of the records, it is seen that immediately after discharge from the opposite party, the complainant was compelled to undergo bye-pass surgery as per Ex.A7 & Ex.A8.  It is also established from Ex.A11, Medical literature that the administration of Chelation Therapy, EECP and  Ozone Therapy are not applicable in the case of the complainant proves  the diagnosis of the opposite party is wrong which comes under the purview of medical negligence.   Further the contention of the opposite party is that  the medical prognosis was not the subjective satisfaction of the complainant and cannot be a reason for seeking refund of the medical expenses incurred.  But in this case, the mal administration of treatment using chemicals caused great hardship to the complainant.  Further the contention of the opposite party is that the complainant had severe Coronary Vessel Block and could have complications even in other forms of treatment administered by opposite parties is an acceptable practice and is recognised by the Government of India as per Ex.B2.   But on a careful perusal of Ex.B2, there is nothing about the treatment regarding Chelation therapy, EECP and Ozone Therapy except the sanction accorded to incur Rs.82,500/- to Harvey Heart Hospitals Ltd., Chennai.   

11.    Further the contention of the opposite party is that Chennai Port Trust also recognized the treatment extended by the opposite party which is also speaks only regarding Arterial Clearance Therapy and nothing about the Chelation therapy, EECP and Ozone Therapy.    The Indian Oil Corporation Health Care Sector, the Star Health and Allied Insurance Company, the Government of Puducherry etc are recognition to the treatment extended by the opposite party as per Ex.B4 to Ex.B7 are against the Chelation therapy, EECP and Ozone Therapy.  Further the contention of the opposite party is that the complainant after knowing fully well accepted the nature of treatment and undergone the Chelation therapy, EECP and Ozone Therapy treatment is proved from Ex.B8 consent letter.   But on a careful perusal of Ex.B8, there is nothing about the treatment as stated above.  The terms and condition letter of accepted and authorisation etc in Ex.B8 there is nothing about the details of treatment.   Further the contention of the opposite party is that the complainant has paid a sum of Rs.1,06,000/- towards various treatment given by the opposite party.  The compensation claimed for mental agony and other heads are imaginary and are exorbitant.  The allegation that due to the Chelation therapy, EECP and Ozone Therapy caused immediate surgery is not acceptable.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite party shall pay a sum of Rs.1,06,000/- received by way of medical treatment and to pay a sum  of Rs.50,000/- towards compensation for mental agony with cost Rs.5,000/-.

In the result, this complaint is allowed in part.   The opposite party is directed to pay a sum of Rs.1,06,000/- (Rupees One lakh and six thousand only) received by way of  medical treatment and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 24^th day of September 2018. 

 

MEMBER –I                                                                            PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of advertisements given by the opposite party in Indian Express, Mangair Malar April 2007 & August 2007 as published in Oxymed Website, Ex.A2		Copy of advertisement about the treatment given in the opposite party as published in Ex.A3	14.11.2007	Copy of 3DCCG Investigation Report done by the opposite party
Ex.A4	15.11.2007	Copy of Time Schedule for treatment
Ex.A5	21.11.2007 & 13.12.2007	Copy of treatment particulars and Blood Test Report conducted by the opposite party
Ex.A6	01.11.2007 to 12.12.2007	Copy of payment details
Ex.A7	19.12.2007 to 22.12.2007	Copy of Discharge Summary of International Centre for Cardio Thoracic and Vascular Diseases (Before Bypass-surgery)
Ex.A8	02.01.2008 to 12.01.2008	Copy of Discharge Summary of International Centre for Cardio Thoracic and Vascular Diseases (After Bypass-surgery) along with Medical Certificate
Ex.A9		Copy of loan particulars borrowed by the complainant for repayment of the hospital expenses
Ex.A10	27.01.2008	Copy of photograph publishing the treatment given to the complainant in the website Ex.A11		Copy of the particulars about the Chelation Therapy (Downloaded from the website
Ex.A12	18.07.2008	Copy of legal notice with postal acknowledgment

 

OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1		Copy of write up on EECP
Ex.B2	10.02.2005	Copy of letter from Addl. Director Govt. of India
Ex.B3	21.07.2007	Copy of letter from Chennai Port Trust
Ex.B4		Copy of Claim Form of Indian Oil
Ex.B5	25.11.2008	Copy of TTK-Mediclaim Form
Ex.B6	19.02.2009	Copy of letter from Star Health Allied Insurance Co.
Ex.B7		Copy of letter from the Govt. of Pondicherry
Ex.B8		Copy of authorisation letter from the complainant

 

 

MEMBER –I                                                                            PRESIDENT