Tamil Nadu

Nagapattinam

CC/59/2011

Thennarasu - Complainant(s)

Versus

Dr.Chandara Sekaran - Opp.Party(s)

F.V.Jerad

13 Sep 2014

ORDER

    Date of Filing      :17.11.2011

                                                                                                          Date of Disposal:13.09.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                         NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

CC. No.59/2011

 

DECIDED ON THIS 13th DAY OF SEPTEMBER 2014.

 

 

            1. Thennarasi (Died)

                W/o Sagayaraj, Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.

            2. Sagayaraj,

               S/o Chinnayan, Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.

           3. Ramya,

                D/o Sagayaraj, , Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.

            4. Rejila

                D/o Sagayaraj, , Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.

            5. Raguna

                D/o Sagayaraj, , Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.

            6. Ragul Raja

                S/o Sagayaraj, , Sebasthiar Koil Street, Kadambadi,

                Nagapattinam Town & District, Tamil Nadu.                               ….. Complainants

                                                                                                                          

                                                                /versus/

                                   

              Dr.Chandrasekaran, General Surgeon,

              No.20A, Sivan Sannathi Street, Velippalayam,

              Nagapattinam Town & District, Tamil Nadu.                                  ….. Opposite party

 

This complaint having come up for final hearing before us on 09.09.2014, on perusal of the material records and on hearing the arguments of Thiru.F.V. Jerard, Counsel for the complainants and Thiru.T.Vairavanathan, counsel for the opposite party and having stood for consideration, till this day the Forum passed the following

      ORDER.

     By the President, Thiru. P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

                        2. This complaint is filed by the 1st complainant Tmt. Thennarasi who died during the pendency of the proceedings and the 2nd complainant, her husband and 3rd to 6th complainants her daughters and son are subsequently impleaded as 2nd to 6th complainants as they are the legal heirs of the deceased 1st complainant.

3. The gist of the complaint filed by the deceased the 1st complainant is that

she having pain and swelling on her upper neck, approached the opposite party on 17.03.2011 for treatment.  As she was a diabetic, the opposite party after thorough medical examination prescribed antibiotics and mild sedative to her and even after 5 days, there was no improvement and the ailment had become aggravated.  The opposite party advised her to undergo a surgery for opening the swelling and letting out the pus and unwanted substance and she reposing confidence in the opposite party’s medical expertise subjected herself to the surgery by the opposite party.  But the swelling did not yield or subside though 15 days elapsed and thereafter the opposite party advised her to undergo biopsy test at M/S Selva’s Diagnostics, as she suspected malignancy and the report dt. 28.04.2011 disclosed malignancy.  But the opposite party had not chosen to refer the 1st complainant immediately to an advanced medical institution for treatment and only on 23.05.2011, he had referred her to JIPMER at Puducherry. The 1st complainant subjected herself to treatment of lateral tarsorrhaphy and she incurred facial disfigurement and partial loss of eye sight as warned earlier by the authorities at the Regional Cancer Centre at JIPMER. The opposite party had negligently and knowing the dire consequences had performed a surgery and aggravated the condition to the worst level.  Had the opposite party diagnosed malignancy at the earliest point of time and arranged for immediate radiation treatment, she would not have attained that sort of worst condition causing her to be bedridden and to be attended by someone for all the time.  For the legal notice issued by the 1st complainant on 24.09.2011, the opposite party had issued a reply dated 29.09.2011 containing false and baseless averments with an attempt to wriggle out of his liability to compensate the complainant.  The 1st complainant died on 02.03.2012.  The 2nd to 6th complainants who are her legal representatives pray for an order to direct the opposite party to pay compensation of Rs.5,00,000/-  with interest and cost of the complaint and grant  such and other reliefs as this Forum may deem fit.

                        4. The gist of the written version filed by the opposite party is that the complaint is not maintainable either in law or on facts.   As the first complainant said that there was no improvement in pain and swelling on her left upper neck even after taking course of medicine for 5 days, the opposite party medically decided to incise the swelling expecting that the incision of the swelling would help resulting in the recovery of the complainant.  As the pain and swelling of the complainant had not reduced even after the surgery the opposite party suspecting some other pathological reason, suggested diagnostic test and on getting biopsy report on 26.04.2011 from Selvas Diagnostic Centre, the opposite party found that the complainant was affected by cancer on the left upper neck and urged the complainant to take treatment for cancer and on the same day, the complaint was referred to JIPMER, Pondicherry on her request. There is no deficiency of service on the part of the opposite party, either medically or otherwise; hence the complaint is liable to be dismissed.

                        5. The deceased 1st complainant’s husband, the 2nd complainant, has filed his proof affidavit reiterating all the averments made in the complaint and has filed 19 documents which are marked as Exhibits A1 to A19. The opposite party has filed his proof affidavit in support of his defence and no document is filed on his side.  Written arguments have been filed by both the sides.

 

6. Points for consideration:-

  1. Whether there is deficiency of service on the part of the opposite party?
  2. Whether the complainants 2nd to 6th are entitled to any relief? If so to what?

 

                        7. Point 1: The complainant’s approaching the opposite party for taking treatment for ailment in her upper neck where she had pain and swelling, the opposite party’s prescribing antibiotics to the complainant to be taken for 5 days, the incision of the swelling by the opposite party in order to let out the pus and unwanted substance as the swelling and pain of the 1st complainant was not reduced by the said antibiotics, the opposite party’s advice to the 1st complainant to undergo biopsy test at M/S Selva’s Diagnostics, and that the report of the said laboratory as early as on 28.4.2011, disclosed malignancy in the 1st complainant’s upper neck, are all admitted facts.

                        8. The main allegation of the 1st complainant in the complaint filed by her, as made in the 3rd paragraph of the complaint, is that “the opposite party had not chosen to refer the 1st complainant (deceased) immediately to advanced medical institution for treatment and only on 23.05.2011, the opposite party had referred the 1st complainant (deceased) to Puducherry.”  The another contention of the complaint is that the opposite party has not filed any documentary evidence to prove that there was no deficiency of service on his part. The opposite party has deposed during course of the cross examination that he was not having any documents to show the particulars of treatment given by him to the 1st complainant as she took treatment only as an outpatient and only for those patients who take treatment as in patient alone, case sheet would be maintained.

9. The Exhibit A1, the Xerox copy of the prescription dated 17.03.2011 is sufficient to prove that the complainant approached the opposite party on 17.03.2011 for her pain and swelling on the left upper neck and the latter prescribed antibiotics and sedative for 5 days. Exhibit A2, dated 04.04.2011 and A3, dated 10.04.2011 the investigation reports relating to the Blood Sugar level of the 1st complainant issued by the Krishna Clinical Laboratory, Nagapattinam are sufficient to show that the opposite party ascertained blood sugar level of the 1st complainant, who was a diabetic.  As the swelling and pain was not reduced in response to the said preliminary treatment given by him, the opposite party, a Surgeon, decided to incise the swelling, so that the pus and unwanted substance would came out from inside of the swelling.  As even after the surgery  there was no improvement the opposite party rightly suggested for a biopsy test and Exhibit A4, the biopsy  report issued on 28.04.2011 disclosed the malignancy on the complainant.  The main allegation made by the deceased, the 1st complainant both in the Exhibit A18 dated 24.09.2011 the legal notice issued by her, as well as in the complaint is that even though the laboratory had issued the report as early as on 28.04.2011 disclosing malignancy in her upper neck, the opposite party had not chosen to refer her immediately to advanced  medical institution for treatment and only on 23.05.2011, he had referred her to JIPMER at Puducherry.  Having known that malignancy needs immediate radiation treatment delay in getting radiation treatment would increase the risk of the patient, the opposite party had been negligent without referring her to radiation treatment immediately and the further allegation is that by performing surgery, the opposite party aggravated the complainant’s condition to the worst level.

                        10. For the said legal notice, the opposite party has given suitable reply under Exhibit A17 in which he has assertively stated that on the production of the biopsy report, as he suspected it could be case of cancer, he directed the 1st complainant to go to the JIPMER, Puducherry for further confirmation and requisite treatment and hence there is no delay on his part in referring the 1st complainant  for further treatment for malignancy.  The complainants have relied on Exhibit A19, letter dated 26.06.2011 given by the opposite party to the Medical Officer, Cancer Unit, JIPMER, Puducherry for the allegation that the 1st complainant was referred only on 26.06.2001 in spite of the issue of the laboratory test report as early as on 26.04.2011 itself.  The said allegation of the 1st complainant that the opposite party negligently committed delay in referring her to the JIPMER Hospital is totally false and it is falsified by her own document namely Exhibit A9, the case summary and discharge record issued by the JIPMER Hospital, Puducherry. The said document makes it clear that the 1st complainant had been admitted there on 03.05.2011 for treatment, surgery had been done on 21.05.2011 and she was discharged on 14.06.2011, Exhibit A5, the history, examination, treatment and progress record maintained and issued by the JIPMER Hospital also goes to show that the complainant had been examined on 04.05.2011, 09.05.2011, 23.05.2011 and 07.06.2011 and in that document, the 1st complainant herself signed in evidence of her consent for the tarsorrhaphy and her knowledge of the risk of undergoing facial disfigurement in that treatment. Exhibit A6 is the Blood Bank, blood donation slip dated 06.5.2011 issued by the JIPMER Hospital, Puducherry, Exhibit A7 is the Electro Cardiogram Requisition and Report dated 27.06.2011 issued by the JIPMER Hospital, Puducherry, Exhibit A8 is the another Electro Cardiogram Requisition and Report dated 28.06.2011, Exhibit A10 is the requisition for the laboratory investigation department of Pathology- Haematology of JIPMER Hospital, Puducherry, Exhibit A11 is the cross reference form sent to the Ophthalmology Dept. of the JIPMER Hospital, Exhibit A12 dated 28.05.2011, A13, dated 29.06.2011, and Exhibit A14 dated 30.06.2011 are all the laboratory reports of the JIPMER Hospital, Puducherry relating to the 1st complainant. 

                        11. Exhibit A15 is the outpatient record with patient record dated 03.05.2011 which was issued to the 1st complainant when he went to the JIPMER Hospital for the 1st time. The Exhibit A16, is the progress record which evidences that the 1st complainant had continuous treatment at the JIPMER Hospital, Puducherry for the 2nd time having herself admitted on 25.06.2011 and discharged on 11.07.2011.  The said Exhibits go to establish that the 1st complainant had been admitted in the JIPMER Hospital as early as 03.05.2011 itself and had continuous, proper and effective treatment there.  No doubt Exhibit A19 is the letter given by the opposite party to the Medical Officer, Cancer Unit, JIPMER.  But it cannot be taken as the concrete evidence on the side of the complainants to substantiate their version that the opposite party referred the 1st complainant only on 23.05.2011, even though biopsy test report was received by him on 28.04.2011, Exhibit A9, the case summary and discharge record issued by the JIPMER Hospital, Puducherry makes it clear that the Exhibit A19 is deliberately obtained  by the 1st complainant without disclosing her admission and treatment at JIPMER Hospital, Puducherry, even from 03.05.2011 onwards, Exhibit A16 is the progress Record to show that the 1st complainant had been again admitted on 25.06.2011 for the 2nd time and had continuous  treatment till 11.07.2011, when she was discharged from the hospital.  Therefore it is evident that the Exhibit A19 has been obtained on 26.06.2011 from the opposite party by one of the complainants misrepresenting as if the 1st complainant was to be taken to the JIPMER Hospital for the 1st time for treatment only thereafter.  The 2nd complainant Thiru. Sagayaraj during the course of the cross examination has deposed “எதிர் தரப்பினர்  அடையாருக்கு அனுப்பி வைத்தார்கள், அன்றே அடையாருக்கு சென்று பார்த்தோம்,  அங்கு பார்க்கமாட்டோம்  என்று கூறிவிட்டார்கள். அதனால் பின்னர் பாண்டிச்சேரி ஜிம்பர் மருத்துவமனையில் சிகிச்சைக்காக  சேர்த்தேன். எதிர் தரப்பினர்  அடையாறு மருத்துவமனைக்கு    சிகிச்சைக்காக   அனுப்பி வைத்தார் என்று  எனது புகார் மனுவில் சொல்லவில்லை என்றால் சரிதான்.”  that the opposite party sent the 1st complainant to Adaiyar for treatment and as they expressed their inability to give treatment at Adaiyar, he thereafter went to JIPMER Hospital, Puducherry, would also make it clear that the 2nd complainant is not coming forward with truth in this case; on the other hand he has attempted to give misleading and false evidence as against the opposite party within ulterior motive to achieve his end.

                        12. The another contention of the learned counsel of the complainant is that the incision of the swelling by the opposite party without having reference to biopsy test beforehand has aggravated and worsened the condition of the 1st complainant as the said surgery had expedited the proliferation of the cancerous cells all over the body of the deceased complainant, which was already in a metastatic level.  To disprove the said version the learned counsel of the opposite party has relied on the medical literature on Cancer Research under the caption The Effect of Manipulation and Incision on Experimental Carcinoma of Hamster Buccal Pouch, in which it is found “It has been demonstrated that neither manipulation nor incision of carcinoma of the hamster buccal pouch exerted any appreciable effect upon the course of development of these lesions.  The microscopic pattern of the tumors was unaltered and metastatic spread was not observed.  The neoplasms that received incisions or manipulations did not develop to large size nor did they appear to invade more widely and deeply.  These experimental results appear to suggest that palpation or incision of carcinoma, such as in biopsy procedures, do not present the dangers of spread or increased rate of growth that had been previously considered in a number of clinical reports.”

                        13. The learned counsel has also relied on another medical literature under the caption Incision and Drainage of Abscess,  in which it is noted that  “when an abscess tends enable you to elicit the signs of fluctuation. An abscess, which is fluctuating, will open by itself to chronic non-healing sinus.  So it is very important that all abscesses are opened with liberal in areas cruciate incisions is made and in certain other areas incision and counter incision are all of fluctuation gives a clue that the abscess is ready for incision and drainage it is advisable not to areas like breast, parotid and the perirectal area.”

                        14. The learned counsel for the opposite party has further relied on the decision Reported in 2008 (2) CPR, Page no.24, in which the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal has held:  “Where doctor adopted the procedure in a treatment as provided in medical literature and took necessary care expected of him in given circumstances, no case of medical negligence could be said to be made out.”  The learned counsel further pointed out that in the absence of any expert evidence on the side of the 1st complainant the treatment given by the opposite party to the 1st complainant cannot be said to be the negligent and deficient one in nature on his part. 

                        15. The learned counsel for the complainants in his written arguments has quoted the gists of certain decisions of the Hon’ble Supreme Court, the National Consumer Disputes Redressal Commission and the State Consumer Disputes Redressal Commission, Andhra Pradesh and some extracts from certain Text Books such as Halsbray’s Laws of England.  But the leaned counsel has failed to submit the said decisions and text books for the perusal of this Forum even despite a direction by this Forum on 04.09.2014 in that  regard.  Hence the said gists of decisions could not be considered by this Forum as it could not be analyzed under what circumstances and facts of a case those decisions were rendered and whether they are material and applicable to the facts of this case on hand.

                        16. Therefore taking into consideration the cumulative effect of the entire evidence and conduct of parties in this case it is evident that the opposite party has given the treatment to the deceased 1st complainant properly and in good faith and no deficiency of service or negligence could be attributed to him.

            15. Point 2: In the result the complaint is dismissed. There is no order as to cost.

 

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this 13th   day of  September 2014.

 

 

 

    MEMBER I                                    MEMER II                                   PRESIDENT

List of documents filed by the complainant

 

Ex.A1/Dt.17.03.2011: The Xerox copy of the medical prescription of the complainant given

    by the opposite party.

Ex.A2/Dt.04.04.2011: The Xerox copy of the blood sugar report of the complainant given by

               the Krishna Clinical Laboratory, Nagapattinam.

 

Ex.A3/Dt.10.04.2011: The Xerox copy of the another blood sugar Report of the complainant

    given by the Krishna Clinical Laboratory, Nagapattinam.

Ex.A4/Dt.26.04.2011:The Xerox copy of the biopsy report of the complainant given by the  

  M/S Selvas Diagnostics Centre.

Ex.A5/Dt.23.05.2011: The Xerox copy of the History, Examination, Treatment and Record

                                       Copy of the complainant given by the said JIPMER Hospital,

      Puducherry.

Ex.A6/Dt.18.05.2011: The Xerox copy of the blood bank blood donation slip given by the

                                        said JIPMER Hospital, Puducherry.

Ex.A7/Dt.27.06.2011:The Xerox copy of the Electro Cardiogram Requisition Report of the   
                                   complainant given by the said JIPMER Hospital, Puducherry.

 

Ex.A8/Dt.28.06.2011: The Xerox copy of the Electro Cardiogram Requisition Report of the  
                                   complainant given by the said JIPMER Hospital, Puducherry.

 

Ex.A9/Dt.14.06.2011: The Xerox copy of the Case Summary and Discharge Record of the

                                        Complainant given by the said JIPMER Hospital, Puducherry.

Ex.A10/Dt.09.07.2011: The Xerox copy of the Requisition for laboratory investigation report

                                         of the complainant  given by the said JIPMER Hospital, Puducherry.

Ex.A11/Dt.28.06.2011:The Xerox copy of the Cross Reference Form of the complainant

                                          given by the said JIPMER Hospital, Puducherry.

Ex.A12/Dt.28.05.2011: The Xerox copy of the Laboratory Report of the complainant given

                                           by the said JIPMER Hospital, Puducherry.

Ex.A13/Dt.27.06.2011: The Xerox copy of the Laboratory Report of the complainant given

      by the said JIPMER Hospital, Puducherry.   

Ex.A14/Dt.30.06.2011: The Xerox copy of the Laboratory Report of the complainant given

                                          by the said JIPMER Hospital, Puducherry.

Ex.A15/Dt.03.05.2011: The Xerox copy of the outpatient and patient Record of the

      complainant given by the said JIPMER Hospital, Puducherry.  

Ex.A16/Dt.25.06.2011:Xerox copy of the Progress Record of the complainant given by the

                                         said JIPMER Hospital, Puducherry.  

Ex.A17/Dt.29.09.2011: The Xerox copy of the reply notice given by the opposite party’s

     counsel to the complainant’s counsel.

Ex.A18/Dt.24.09.2011: Copy of the legal notice sent by the 1st complainant’s counsel to the

      opposite party

Ex.A19/Dt.26.06.2011: The Xerox copy of the Reference letter given by the opposite party

       to the Medical Officer, Cancer Unit, Jipmer  Hospital, Puducherry.

 

 

 

 

    MEMBER I                                    MEMBER II                                   PRESIDENT

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.