BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, RAMANAGARA
PRESENT:- Hon’ble Sri.H.Channegowda, B.Sc., LL.B., District & Sessions Judge (Retd.) and President Hon’ble Smt.Suma Anil Kumar., B.A., LL.B., Member Hon’ble Smt.Jyothi N., B.A., LL.B., LL.M., Member |
C.C.2/2019 Order dated this the 29th day of June 2022 |
COMPLAINANT/S | Sri P.Lokesh S/o B.N.Puttalingaiah, Aged about 36 years, R/at Hanumanahalli Village, Kootagala Hobli, Ramanagara Taluk & District. (Sri H.R.Suresh., Advocate) |
- V/S - |
OPPOSITE PARTY/S | - Dr.B.A.Chandrashekar, Urinery Surgeon,
- Dr.Padmavathi, Medical Management,
Both are Doctors at Punya Hospital, No.2226, 2nd Cross, Kuvempunagara, Channapatna Town, Ramanagara District. (Dr.S.V.Joga Rao., Advocate for OP.1 & 2) |
Date of filing | 29.12.2016 | |
Date of service of notice to OP | 21.01.2017 | |
Date of order | 29.06.2022 | |
Total period of proceedings | 5 Years 5 Months 8 days | |
Total period taken | 5 Years 6 Months | |
| | | |
ORDER
BY SRI H.CHANNEGOWDA, HON’BLE PRESIDENT
- The Complainant has filed this Consumer complaint under Section 12 of the Consumer Protection Act, 1986 against the Opposite parties praying to grant compensation of Rs.8,55,000/- along with interest and also cost of the complaint and other appropriate reliefs as this court deem fit to grant under the circumstances of the case.
- In a nutshell the case of the Complainant are as under:-
As the Complainant had stomach pain, on 09.11.2015 he contacted Opposite party No.1 - Doctor Sri.B.A.Chandrashekar at Punya Hospital, Channapatna Town, (OP.2) for treatment. On examination and as per the advice of Opposite party No.1 – Doctor, he underwent necessary medical tests at Prerana Scanning Centre and produced the reports including scanning report to Opposite party No.1 – Doctor. On examination of the said report it is confirmed that the Complainant had Kidney stone.
- Further it is alleged that as per the advice of the Doctor (OP-1) he admitted as an inpatient at Punya Hospital, Channapatna (OP-2) to undergo surgery for removal of Kidney stone.
- Further it is alleged that on 13.11.2015 Opposite party No.1 – Doctor performed the surgery. At the time of surgery instead of shootout Kidney stone Opposite party No.1 – Doctor has negligently shootout the ureter connected to right Kidney. Thereby the Complainant had to face severe bleeding and pain. After knowing the fault committed, both the Opposite parties referred and got shifted the Complainant to Victoria Hospital, Bengaluru for further management.
- Further it is alleged that after knowing the negligent act of Opposite party No.1 – Doctor in conducting surgery which results in severe bleeding, on the same day i.e., on 13.11.2015 Dr.M.Shivalingaiah, Dr.J.Srinivas and Dr.R.P.Sanjay, Nephro Neurologists have conducted surgery i.e., Exploration and right ileal (around 16 - 20 cm pf ileum) ureter replacement done under GA. One stone around 1 cm in size retrieved and right PCN done. After necessary treatment given to the Complainant, he was discharged from the said Hospital with advice to come to the Hospital for follow up treatment.
- Further it is alleged that because of carelessness and wrong surgery made by Opposite party No.1 & 2, the Complainant has suffered mental and physical pain and incurred heavy expenditure of Rs.3,00,000/-.
- Further it is alleged that due to the carelessness and wrong surgery made by Opposite party No.1 – Doctor he had to undergo one more surgery at Victoria Hospital and as a result of which he suffered physical and mental retardation and it is difficult for him to discharge his duty as Lecturer.
- Further it is alleged that even though Opposite party No.1 & 2 know that necessary infrastructure were not available in their hospital for the said surgery and know that they are not experts in the field of such surgery, still Opposite party No.1 – Doctor had performed surgery and due to his carelessness the Complainant had to face severe bleeding injury and thereby there is deficiency in service on the part of Opposite party No.1 & 2.
- Further it is alleged that as the Opposite party No.1 has failed to provide best medical treatment to the Complainant when he admitted to the hospital for surgery, the Opposite parties are liable to pay compensation to him for mental and physical agony caused to him.
- Further it is alleged that in this regard he got issued a legal notice Dated 24.03.2016 to the Opposite party No.1 & 2, but they issued untenable reply notice dated 02.05.2016 through their counsel by denying the averments of legal notice.
- According to the Complainant, in view of the aforesaid reasons and due to carelessness and deficiency in service, the Opposite parties are liable to pay compensation as under;
(1) | Medical expenses (till now) | Rs.3,00,000/- |
(2) | Future medical expenses | Rs.1,00,000/- |
(3) | Physical and mental agony | Rs.4,50,000/- |
(4) | Notices charges & other expenses | Rs.5,000/- |
| Total | Rs.8,55,000/- |
and to grant such other reliefs as the Hon’ble Commission deem fit to grant under the circumstances of the case.
- After the service of notice, the Opposite parties entered appearance before this Commission through their counsel and filed their written version jointly.
- In the written version the main case of the Opposite parties are as under;
The Complainant – Patient had consulted Dr.B.V.Chandrashekar, Urologist, Opposite party No.1 with complaints of pain in right loin since 6 months associated with nausea and omitting. On examination and based on the reports of other lab tests including Ultrasound and CT scan, it was diagnosed as right upper ureteric calculus with hydro uretero nephrosis and Dr.B.A.Chandrashekar, being the visiting surgeon at M/s Punya Hospital, has advised the Complainant for admission in the hospital – Opposite party No.2.
- On 09.11.2015 the Complainant got admitted to Punya Hospital. After obtaining written informed consent duly signed by the Complainant and after obtaining the required fitness for surgery from the concerned physician and Anesthetist, the Complainant was taken for the required surgery on 13.11.2015. During ureteroscopy which was attempted, there was tight lower ureter which also very thin and during the procedure, sudden give-away was felt suspecting avulsion of ureter. Immediately, the procedure was abandoned. Since the patient’s condition called for exploration and further management at higher centre, Dr.B.V.Chandrashekar immediately contacted Dr.Srinivas J., Professor of Urology at the institute of Nephro Urology, Victoria Hospital, discussed the condition in detailed and referred the Complainant for further management. Opposite parties clearly explained to the patient attendants and his family members regarding the condition of the patient and immediate need for referring to the higher centre and after obtaining their concurrence, the Complainant was shifted to the institute of Nephro Urology in their own ambulance under stable condition and that Dr.B.V.Chandrashekar (OP-1) also accompanied the Complainant. At no point of time, did they inform the patient or his relatives that the surgery is a simple one and no assurance was given as stated in the complaint.
- Further it is stated that the avulsion of ureter is a known complication and 2 – 5% of the cases ureteroscopy may have ureteric avulsion. This very clearly shows that as a lay person, the Complainant is not able to appreciate and understand the procedure and its complication.
- Further it is stated that immediately the patient was referred to Dr.Srinivas J., Professor of Urology, Institute of Nephrology, Victoria Hospital for further management. From the date of referring the patient to Victoria Hospital i.e., on 13.11.2015 till the date of his discharge i.e., 24.11.2015, the Opposite parties were constantly in touch with the concerned treating Doctor and obtaining information about the condition of the Complainant. In fact the Opposite party No.1 also visited the Complainant and ascertain his condition and improvement. As advised by the treating Doctor at Victoria Hospital, the Complainant underwent exploratory laparotomy and right ureteric replacement with ileal conduit. On discharge, the Complainant was referred back to Opposite party No.2 Hospital for supportive care. The Complainant had been managed by the Opposite parties and appropriately treated and discharged on 30.11.2015. On discharge, the Complainant’s condition was satisfactory and he was advised for follow up at Institute of Nephro Urology after 7 days.
- In the written version, the Opposite parties have denied the averments of the complaint that because of wrong surgery made by the Opposite parties and due to their negligence, he had to undergo one more surgery at Victoria Hospital and as a result of which he suffered mental and physical pain. The Opposite parties have strongly denied the allegations of negligence on their part as alleged by the Complainant.
- Further it is stated that as far as the expenditure incurred by the Complainant towards admission at Victoria Hospital and the treatment undergone therein is concerned, the entire expenditure amounting to Rs.66,775/- has been borne by the Opposite parties. Thereafter, even for the second admission at Opposite party Hospital between 24.11.2015 and 30.11.2015, the Complainant has not been charged and has been treated free of cost. According to the Opposite parties, there is no iota of negligence on their part. They also denied the complaint averments that they have committed dereliction of duty and lack of service experience.
- Further it is stated that in the interest of the Complainant and based on his condition, the Complainant has been referred for further management to a higher centre and the reasons have been clearly explained to the Complainant’s family and his attendants and only after their concurrence he was shifted to Victoria Hospital for further management. There is no iota of deficiency of service or negligence and lack of service experience as alleged by the Complainant. According to the Opposite parties, they are not liable to pay compensation of Rs.8,55,000/- as claimed by the Complainant on different heads. According to them, whatever treatment rendered to the Complainant is as per the established medical practice and timely action in shifting the Complainant for further management to the higher centre.
Mainly among these grounds it is prayed to dismiss the complaint.
- At the time of evidence, the Complainant has filed his examination in chief affidavit evidence and closed his side evidence. On the other hand, the Opposite party No.1 & 2 have filed their examination in chief affidavit evidence and closed their side evidence. At the instance of Complainant medical records relating to the Complainant from the Victoria Hospital, Bengaluru were summoned and the concerned Medical Superintendent of the said Hospital has produced the copies of relevant documents before this Commission on 25.10.2017. It is seen from the records that the Complainant has filed list of documents dated 29.12.2016 and so also the Opposite parties have filed list of documents dated 16.02.2018. After the closure of evidence of both the parties the case was posted for arguments.
- The learned counsel for the Opposite parties has filed written arguments (though in the written arguments the learned counsel for the Opposite parties has mentioned certain citations, but he has not produced the copies of citations for perusal of this Commission). The Complainant has not filed his written arguments.
- Now the points that would arises for our consideration are:-
- Whether the Complainant prove that there is deficiency in service on the part of the Opposite parties?
- Whether the Complainant is entitled for the relief as claimed?
- What order?
- Our findings on the above points are as under.
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per the final order
for the following;
REASONS
- POINT NO.1:- If we peruse the averments of the complaint and written version filed by the Opposite parties, there is no controversy between the parties with respect to the following admitted facts.
The Complainant had stomach pain and in that regard on 09.11.2015 he contacted Opposite party No.1 Doctor B.A.Chandrashekar at Punya Hospital, Channapatna Town (Opposite party No.2) for treatment. On examination, based on reports, other lab tests including ultrasound and CT scan, it was diagnosed as right upper ureteric calculus with hydro uretero nephrosis. As per the advise of Opposite party No.1 the Complainant was admitted to Punya Hospital (OP-2) to undergo surgery. On 13.11.2015 Opposite party No.1 – Doctor performed surgery.
- According to the Opposite parties during ureteroscopy which was attempted, there was tight lower ureter which was also very thin and during the procedure, sudden give-away was felt suspecting avulsion of ureter. Immediately, the procedure was abandoned. Since the patient’s condition called for exploration and further management at higher centre, the patient was referred to Victoria Hospital for further management. There the treating Doctors have conducted surgery i.e., exploration and right ileal (around 16 - 20 cm pf ileum) ureter replacement done under GA on 13.11.2015 (only around 4 CM ureter stump available below PUJ, one stone around 1 cm in size retrieved and right PCN done) and he was discharged on 24.11.2015.
- The main allegation of the Complainant against the Opposite parties is that on 13.11.2015 while performing surgery by the Opposite party No.1 at Punya Hospital (OP.2), instead of shootout Kidney stone Opposite party No.1 Doctor has negligently shootout the ureter connected to right Kidney. Thereby the Complainant had to face severe bleeding and pain. After knowing the fault committed by both the Opposite parties, he was referred and got shifted to Victoria Hospital, Bengaluru for further management. Because of the carelessness and wrong surgery made by the Opposite parties, the Complainant has suffered mental and physical pain and incurred heavy expenditure of Rs.3,00,000/-.
- But in the written version and also in the oral evidence, the Opposite parties have denied the allegations that due to their carelessness and wrong surgery the Complainant has suffered mental and physical pain and incurred expenditure of Rs.3,00,000/- and he had to undergo one more surgery at Victoria Hospital. The Opposite parties have also denied the complaint averments that due to carelessness of Opposite party no.1 the Complainant had to face severe bleeding injury and thereby there is deficiency in service on the part of Opposite parties. According to the Opposite parties, there is no iota of negligence on their part and there is no deficiency in service and lack of service experience as alleged by the Complainant. According to them, whatever the treatment rendered to the Complainant is as per the established medical practice and timely action in shifting the Complainant for further management at higher centre.
Therefore, in view of the above rival contention of the parties, now the Complainant has to prove the fact that there is deficiency in service on the part of the Opposite parties while conducting surgery on 13.11.2015, as he contended in the complaint.
- The contents of Operation Record of Punya Hospital, Channapatna available in the file reads as under:-
“SA, Cystourethroscopy done revealed normal urethra and prostate. Urinary bladder C/o Cystitist.
RUO-Guide wire passed up could not negotiate beyond the level of calculous obstruction. (Rt) URS attempted with 6-7.5 Fr wolf URS. Ureter was tight. Could not negotiate beyond 2 cm. Sudden give way felt? Avulsion of ureter.
URS retrieved. Bleeding+ - 16 Fr Foley’s put.
Patient and pt’s attenders were explained about exploration and repair Pt. was shifted to Institute of Nephro Urology for further management. Patient was shifted to Institute of Nephro Urology Bangalore with consent from the patient and attenders”.
- The copy of reference letter dated 13.11.2015 sent by Opposite party No.1 to Dr.Srinivas J., Urologist, Institute of Nephro Urology, Victoria Hospital Complex, Bengaluru, shows that on 13.11.2015 Opposite party No.1 has been referring the patient – Complainant with the history of right upper ureteric calculus underwent right attempted URS with SA on 13.11.2015. The ureter was tight and URS could not be passed beyond 2 cm from VUJ. Sudden give-way felt? Avulsion of right ureter. Patient needs exploration and further management.
- The contents of the above copy of Operation Record of Punya Hospital, Channapatna and the copy of reference letter dated 13.11.2015 sent by the Opposite party No.1 collectively shows that on 13.11.2015 while the Opposite party No.1 performing surgery i.e., ureteroscopy (URS), at that time the ureter was tight and URS could not be passed beyond 2 cm from VUJ. Sudden give-way felt? Avulsion of right ureter.
Therefore, under these circumstances the Opposite party No.1 referred the patient to the Victoria Hospital, Bengaluru (Institute of Nephro Urology) for exploration and further management.
- The copy of discharge summary issued by Institute of Nephro Urology, Victoria Hospital Campus, Bengaluru relating to the patient – Complainant shows that the Complainant was admitted to the said hospital on 13.11.2015 and surgery was performed on the same day and he was discharged on 24.11.2015. This document read as under: Final diagnosis : RT SIDED URETERIC AVULSION:-
“Presenting Complaints: C/o RT sided abdominal pain since morning, h/o RT sided URS-L outside today morning following which patient developed severe pain abdomen and was referred to INU for? RT ureteric avulsion
On Examination: BP: 130/80 mm hg. P/R: 86/min, R/R: 16/min, afebrile., No pallor, Tongue:moist
Systemic Examination: CVS/RS – NAD.
Per Abdomen-
Soft, tenderness in RT flank. No renal angle tenderness. NO other mass/free fluid in abdomen. IPS: +, No signs of peritnoism
Investigations done:
Hb(g/d) | 12.9 | PLT | 4.35 lakhs | Urine R/M | NAD |
TC(cells /cmm) | 5,700 | | | | |
| | CXR | Normal | | |
RBSmg/dl | 84mg% | HIV, HCV HBsAg | Negative Negative | CT KUB (9/11/2015) | RT side mild HUN with mid ureteric calculus (8*6mm) |
B.Urea mg/dl, | 30 | ECG | WNL | USG KUB (13/11/2015) | Pelvic calculus with minimal HDN |
S.Creat mg/dl, | 0.4 | Na,K,CI | 132 /4.0/105 | | |
Course in hospital: Patient referred from outside for suspected RT ureteric avulsion, presented with RT abdominal pain, Hemodynamically stable on admission, Immediate USG KUB was done which showed a pelvic calculus with minimally dilated system, discussed with DR Srinivas.J (Unit In Charge of the day) and decided to explore an and plan for Boari flap/ileal ureter. Post op period was uneventful, Check usg was done on 7th Post op day which showed no collection. Nephrostogram was done on 10th post op day which showed free flow of dy without leak. Patient discharged with RT PCN and PUC in situ
Treatment given: Exploration and Rt Ileal (around 16-20 cm pf Ileum) ureter replacement done under GA on 13.11.2015 (Only around 4 cm ureter stump available below PUJ, one stone around 1 cm in size retrieved and RT PCN done)
At Discharge: Hemodynamically stable, PUC in situ, RT PCN in situ”
The contents of discharge summary shows that the patient – Complainant was referred from Punya Hospital, Channapatna for suspected right uretory avulsion, presented with right abdominal pain, hemo dynamically stable on admission. In the above said Victoria Hospital, Bengaluru on operation was done i.e., Exploration and right ileal (around 16 – 20 cm pf ileum) ureter replacement done under GA on 13.11.2015 (only around 4 cm ureter stump available below PUJ, one stone around 1 cm in size retrieved and RT PCN done). At the time of discharge the patient was hemodynamically stable, PUC in situ, RTPCN in situ. As per this discharge summary the patient was advised for bed rest and review after one week in URO-2 OPD. This shows that the patient – Complainant had undergone surgery for the second time at Victoria Hospital, Bengaluru and at the time of discharge he was hemodynamically stable.
- At this juncture, it is just and reasonable to take note of the legal principles which would apply in the case of medical negligence.
In the case of Jacob Mathew – Vs – State of Punjab and another, reported in (2005) 6 SCC 1 the Hon’ble Supreme Court has held that:-
“It is known that in a critical and emergent situation, the medical practitioner is always left between the devil and the deep sea where the decision to be taken then and there. The medical practitioner faced with such an emergency always tries his best to redeem the patient out of his suffering. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient.”
In the case of Martin F. D’Souza – Vs – Mohd. Ishfaq, (2009) 3 SCC 1, the Hon’ble Supreme Court has observed that
“the doctor cannot be held liable for medical negligence by applying the doctrine of resipsaloquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic.
“40.Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of resipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
xxx xxx xxx
42.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professional, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”
In the case of S.K.Jhunjhunwala – Vs – Dhanwanti Kaur and another, (2019) 2 SCC 282, the Hon’ble Supreme Court has observed that
“In every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception”
In the case of Kusum Sharma & others – Vs – Batra Hospital and Medical Research Centre, (2010) 3 SCC 480: 2010 1 CPR (SC) 167; 2010 1 Supreme Court 519, in which the Hon’ble Supreme Court has observed as follows:-
“the normal human tendency is to pick fault whenever there is a death in the family for which the doctor cannot be made a scapegoat. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. Filing such complaints under the Consumer Protection Act against doctors on the rise and in many cases these being frivolous, Courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and (or else) they will not be able to carry out their professional duties without fear”.
In the case of Achutrao Haribhau Khodwa and others – Vs – State of Maharashtra and others (1996) 2 SCC 634, the Hon’ble Supreme Court has observed as follows:-
“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”
- Medical literature on ureteroscopy for stone written by Dr.Reeja Tharu, M.Phil., Ph.D., shows that in respect of risks and complications of ureteroscopy is concerned uretoroscopy is relatively a complication free procedure. However if complications do occur they may be related to the Anesthesia or the procedure itself.
There may be some difficulties experienced by the Urologist in performing the procedure –
- Difficulty in entering the ureter – occasionally, due to swelling or the course of the ureter, it may be difficult to enter the ureter. In such a case usually a stent is left and the procedure is tried after a week or two.
- Stone migration into the kidney – A small stone may run up into the kidney. In such an event ESWL is required to break the stone.
- Stone fragments not fully removed – sometimes the vision may be poor and the fragments may not be fully removed and this may require a second procedure or these may be removed at the time of stent removal.
Avulsion of the ureter – this is a major complication and requires a replacement of the ureter with part of intestine. On open operation is required. This complication may occur during and after the ureteroscopy procedure.
Ureteroscopy (URS) is a preferred method for the treatment of small – to medium – sized kidney stones located in any part of the urinary tract. During this procedure, a ureteroscope is inserted through the urethra and bladder into the ureter (a tube that carries urine from the kidneys to the bladder) or kidney.
- In the operation record and also in the reference letter dated 13.11.2015 the treating Doctor – Opposite party No.1 has mentioned the complications occurred while performing the surgery on 13.11.2015 and for what reason he abandoned the procedure and referred the patient to Victoria Hospital for further management. In the above records it has been mentioned that RUO – guide wire passed up could not negotiate beyond the level of calculus obstructs. Right URS attempted with 6 – 7.5 FR wolf URS. Ureter was tight. could not negotiate beyond 2 cm. sudden give-way felt? Avulsion of ureter. URS retrieved. Bleeding + 16 FR Foley’s put. It is also mentioned that patient’s attenders were explained about exploration and repair. patient was shifted to Institute of Nephro Neurology for further management with consent from patient and attenders. Apart from this, in the written version it is stated that from the date of referring to Victoria Hospital i.e., on 13.11.2015 till the date of discharge of the Complainant i.e., 24.11.2015 the Opposite parties constantly in touch with the concerned treating Doctor and obtaining information about the condition of the Complainant. In fact Dr.B.V.Chandrashekar (OP-1) also visited the Complainant for ascertaining his condition and improvement. Further it is stated that the entire expenditure amounting to Rs.66,775/- towards treatment of Complainant at Victoria Hospital, Bengaluru, the same has been borne by the Opposite parties. Thereafter even for the second admission at Opposite party Hospital between 24.11.2015 and 30.11.2015, the Complainant has not been charged and has been treated free of cost.
So far as with respect to the above contention of the Opposite parties as stated in the written version, the same is not specifically denied by the Complainant at the time of evidence. That apart, the Complainant has not produced the final bill of Victoria Hospital in order to show that he himself has actually paid the entire expenditure of Victoria Hospital, Bengaluru at the time of discharge.
- Considering the principles of medical negligence as laid down by the Hon’ble Supreme Court in the above referred cases, in our view Opposite party No.1 – Doctor who being a qualified, adopted the reasonable skill and treated the patient as per the standard accepted practice. He has not deviated from the standard of practice. We do not find any deficiency in service or ill intention of Opposite party No.1, it was a timely and proper medical reference for institutional care.
- It is a settled law that the onus to prove medical negligence lies largely on the Complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be set 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 cogent evidence to prove the case of medical negligence against the Doctors / Hospitals.
But in the case on hand there is nothing on record to prove that Opposite party No.1 has committed medical negligence while performing surgery. The Complainant has failed to produce any expert evidence, except the affidavit of Complainant. Merely because a patient has not favourably respond or surgery has failed, the Doctor cannot be held straight away liable for medical negligence. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In our view, the present consumer complaint completely failed to provide any cogent evidence to prove the medical negligence on the part of the Respondents / Opposite parties.
On considering the principles laid down by the Hon’ble Supreme Court in the above referred decisions on the principles of medical negligence and based on the foregoing discussion in the given facts and the entire material on record before us, it is not feasible to attribute negligence on the Opposite party No.1 – Doctor and Opposite party No.2 - Hospital.
Hence in view of all these reasons we answer the above point accordingly.
- POINT NO.2:- In view of our reasons as stated in Point No.1 and the conclusion arrived at, we proceed to pass the following;
ORDER
The complaint filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 is dismissed.
No order as to costs.
Furnish free copy of this order to both the parties.
(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29th June 2022)
ANNEXURS
Witness examined on behalf of the Complainant/s by way of affidavit:
P.Lokesh – Complainant.
LIST OF DOCUMENTS PRODUCED BY THE COMPLAINANT |
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| Out patient record at Punya Hospital Channapatna |
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| Prerana Diagnostic Centre Report |
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| Nephro Urology out patient record and discharge summary |
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| Medical Bills (35 bills) |
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| Medical prescriptions |
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| Legal notice |
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| Postal acknowledgement and receipts |
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| Reply notice |
Witness examined on behalf of the Opposite party/s by way of affidavit:
- Dr.B.V.Chandrashekar – (OP.1)
- Dr.Padmavathy – (OP.2)
LIST OF DOCUMENTS PRODUCED BY THE OPPOSITE PARTY |
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| Xerox copy of the Admission case sheet |
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| Xerox copy of the Investigations reports |
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| Xerox copy of the Laboratory report |
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| Xerox copy of the Consent form |
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| Xerox copy of the Follow up sheet |
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| Xerox copy of the Record of Anesthesia |
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| Xerox copy of the Operation record |
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| Xerox copy of the Treatment order sheet |
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| Xerox copy of the Nurses Notes |
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| Xerox copy of the Follow up sheet |
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| Xerox copy of the Reference letter |
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| Xerox copy of the Payer response letter |
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| Xerox copy of the Admission case sheet |
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| Xerox copy of the Treatment order sheet |
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| Xerox copy of the Nurses Notes |
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| Xerox copy of the Follow up sheet |
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| Xerox copy of the Discharge summary |
LIST OF DOCUMENTS PRODUCED BY THE MEDICAL SUPERINTENDENT INSTITUTE OF NEPHRO-UROLOGY, BANGALORE |
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| Attested copies of In-Patient records relating to the patient Mr.Lokesh P. |
| | |
(H.CHANNEGOWDA) (SUMA ANILKUMAR) (JYOTHI N.) PRESIDENT MEMBER MEMBER |
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