Dr.G.Ganesh, V/S Smt.Savita - Consumer Court Case

Karnataka

Kolar

CC/46/2015

Smt.Savita - Complainant(s)

Versus

Dr.G.Ganesh, - Opp.Party(s)

Sriyuth.V.Sridhar

30 Jul 2016

ORDER

Date of Filing: 28/09/2015

Date of Order: 30/07/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

Dated: 30^th DAY OF JULY 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.) ……. PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB …….. MEMBER

SMT. A.C. LALITHA, BAL., LLB …… LADY MEMBER

CONSUMER COMPLAINT NO :: 46 OF 2015

(1) Smt. Savitha,

W/o. Late. Venkatesh,

Aged About 28 Years,

(2) Master. Varun,

S/o. Late. Venkatesh,

Aged About 10 Years,

(3) Kum. Supriya,

D/o. Late. Venkatesh,

Aged About 8 Years,

Since the complainants are minor

Children of deceased Venkatesh

Repreented by their mother

Smt. Savitha as natural guardian

And next friend

All are residing at:

Kodiramasandra Village,

Kasabas Hobli, Kolar Tq. & Dist.

(Rep. by Sriyuth. N.Byrareddy, Advocate) …. Complainants.

- V/s -

Dr. G. Ganesh,

S/o. Gopalappa,

Aged About 68 Years,

Prop. Of M/s. Ganesh Health Care,

1^st Cross, Gowripet,

KOLAR-563 101.

(Rep. by Sriyuth.Dr.S.V.Joga Rao, Advocate) …. Opposite Party.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01. The complainants having submitted the complaint Under Sections 11 & 12 of the Consumer Protection Act, 1986 have sought relief of recovery of global compensation of Rs.10,00,000/- with interest at the rate of 12% per annum for being recovered from the OP on the contention of medical negligence.

02. Earlier it was only the complainant No.1 being wife of the deceased Venkatesh had preferred the complaint on hand, but at subsequent point of time the complainant Nos.2 and 3 being minors came to be brought on record being represented through the very complainant No.1 being their mother as a next friend. (Reliance placed on order dated: 23.07.2016 passed on I.A.No.5)

03. The facts in brief:-

(a) It is contention of the complainants that Venkatesh (since deceased) (being husband of the complainant No.1 and father of the minor complainant Nos.2 and 3) since was suffering from fever, on 23.07.2013 was brought to Ganesh Health Care, Gowripet, Kolar, which is run by the OP Dr. G.Ganesh. And that he was admitted as an inpatient on the advice of the OP for proper treatment. And that such being the case, on 25.07.2013 the OP had advised for the scan of the stomach. And that the sisters (nurses) of the said hospital had taken him to the scan room by walk though he was unable to walk-up to the scanning room. And that even the OP had forced him to walk instead of taking him in wheel-chair. And that while he was so made to walk with the help of the said staff he reeled and fell-down due to the negligent acts of the said sisters (nurses) which had the consequences of bleeding injuries through the head - ear and nose.

(b) Further it is contended that, immediately after the occurrence without giving proper treatment he was thrown-out of the hospital even without giving discharge summary. And that thus the OP committed deficiency in service. It is also contended that, she (the complainant No.1 being wife of the Venkatesh) along with his (her husband’s) friends by name Udaykumar and Manjunath shifted him to R.L. Jalappa Hospital, Kolar. And that the doctors therein after examining him advised that, her husband (husband of the complainant No1) should undergo surgery. And she has contended that, in spite of the surgery he could not be recovered and on 26.07.2013 around 06.30 AM he died at R.L. Jalappa Hospital, Kolar.

(c) Further it is contended that, for the untimely death of him as the OP and the sisters (nurses) of the said hospital were the cause on account of negligence; information came to be lodged with Town Police Station at Kolar on 26.07.2013 and accordingly Crime came to be registered vide No.192/2013 for offence made punishable Under Section 304A read with Section 34 of the IPC. Further it is contended that after the investigation charge-sheet came to be submitted against the OP vide C.C.No.50/2015 and the trial is pending before the learned Court of Principal C.J.M., Kolar for the offence punishable Under Section 304A of IPC.

(d) Further it is contended that, the deceased Venkatesh at that time was aged about 32 years and as a Mason by profession was earning Rs.500/- per day. Thus he was contributing for maintenance and welfare of the family.

(e) Further it is contended that legal notice came to be issued to the OP through the counsel on 20.06.2015 which came to be served on the OP on 24.06.2015. And that the OP replied on 21.07.2015 through his counsel.

(f) So contending, the complainants have come up with this complaint on hand to seek the above set out relief.

(g) Along with the complaint the complainants have submitted certain documents for which the reference shall be made hereafter at appropriate stage.

04. At this juncture it is worth to note that, certain interim developments that took place pertaining to this case on hand. This complaint on hand was submitted before this Forum on 28.09.2015. As there was delay IA No.1 Under Section 24A of the Consumer Protection Act, 1986 Read With Section 5 of the Limitation Act (to condone the delay of 02 months 03 days) came to be submitted along with the main complaint. And the OP has been served with notices on IA No.1 and on the main complaint. This Forum on 07.05.2016 has passed Common Order on this I.A. No.1 amongst IA Nos.3 & 4. And vide the said Order with regard to I.A. No.1 we held that, there was no delay in view of submission of the complaint on hand during pendency of this said criminal trial of this OP vide said C.C. No.50/2015. Further we have held assuming arguendo that though there could be delay of 02 months 03 days the same deserved condonation as the complainant was to be under the impression that on account of pendency of the said Criminal trial she felt that no time had run out, which was a bonafide intention.

05. The OP through the written version has resisted contentions in the complaint in toto:-

(a) Though it is conceded that, the said Venkatesh was so admitted in his said hospital there was no negligence of any kind either on his part or on the part of his staff in taking the said deceased Venkatesh to the scanning room. Further there is denial of contention of the said deceased Venkatesh being thrown-out after the occurrence and he being shifted by the complainant No.1 with contended friends of the said deceased by name Vijaykumar and Manjunath. However it is conceded that, on 26.07.2013 the said deceased Venkatesh had died after he had undergone surgery in the R.L. Jalappa Hospital.

(b) With regard to the said Criminal Case vide C.C. No.50/2015 it is contended that, he has been facing the trial, but the prosecution instituted is false.

(c) With regard to the age of the deceased it is contended that, he was not aged 32 years as contended, whereas, he was aged 33 years being the age given at the time of admission. Further there is denial with regard to the daily earning on the part of the said deceased including claim for global compensation of Rs.10,00,000/-.

(d) Further it is contended that, the complaint is not to disclose full facts. It is contended that at the time of examination the complainant No.1 and her husband had revealed that, he had already taken treatment in some other hospital as he was suffering from fever for more than 04 days. And that later, after examining him, he (the opponent) had advised him (the deceased Venkatesh) for scanning for his abdominal discomfort. And that accordingly the complainant (to mean the complainant No.1) took him to the scanning room and when he was sitting in the chair he had developed severe convulsions and due to the said impact of convulsions (fits) he had fallen down and that the said convulsions were very violent and intolerable. And that due to his fall on the door stopper, he (the OP) suspected cerebritis and Enchephelitis bleeding injuries through the and head on account of impact of the force of falling on the aluminum metal door stopper. And that under the circumstances the said suspected injuries might have been caused.

(e) Further it is contended that, immediately he came out of the chamber and rushed to the spot and took him (the deceased Venkatesh) to the emergency room with the support of other Doctors and gave all possible first-aid treatment. And that in view of the said injuries he had advised the complainant (to mean the complainant No.1) to shift the patient to major hospital for further treatment, investigation and management. And that while so discharged he gave referral letter suspecting head injury to the patient and had even arranged for ambulance.

(f) Further it is contended that, he has been practicing in medicine for more than 04 decades. And that his hospital is well equipped with all possible facility to run secondary health care. And that he was in no way responsible for the death of the said person. And that under the circumstances there could be no deficiency in service. And that to bring disrepute to the fame of his hospital the complainant (to mean the complainant No.1) through untruly elements tried to extract money from him for which he did not yield. And that thereafter the complainant (to mean the complainant No.1) stepped in to prosecuting him maliciously without any grounds including the complaint before this Forum.

(g) Further it is specifically contended that, the complaint is bad for non-joinder of Sri R.L. Jalappa Hospital, Kolar, being the necessary party (Reliance placed on Para-19 of the written version). Thus dismissal of the complaint with costs has been sought.

(h) Along with the written version certain documents have been submitted by the OP for which the reference shall be made hereafter at appropriate stage.

06. At this juncture we are also to make certain observation with regard to plea of necessary party and causing production of certain documents from the said R.L. Jalappa Hospital, Kolar.

07. On 01.03.2016 the OP preferred I.A. No.2 under Order 13 Rule (10) of C.P.C. and Section 13(4) of C.P. Act, 1986. The same came to be allowed vide order dated: 18.03.2016 on consent being given by the learned counsel appearing for the complainants. And thus directions came to be issued to the R.L. Jalappa Hospital, Kolar, to submit entire case-sheet bearing No.930998 in respect of the deceased Venkatesh along with FSL report and Histopathological report. On 29.03.2016 Sri.Pradeepkumar, Clerk, attached to the said R.L. Jalappa Hospital, Kolar, submitted case-sheet.

08. While so, on 22.04.2016 the learned counsel appearing for the OP has submitted I.A. No.3 Under Order 1, Rule 10 of CPC with a prayer to implead the said R.L. Jalappa Hospital, Tamaka, Kolar, as OP-2 being a necessary and proper party.

09. Further on 02.05.2016 the learned counsel appearing for the OP submitted I.A. No.4 Under Order 13 Rule (10) of CPC and Under Section 13(4) of the Consumer Protection Act, 1986 to summon the said R.L. Jalappa Hospital, Kolar, to submit FSL Report and Histopathology report, full post-mortem report and scan of skull and brain before and after surgery in respect of the said deceased Venkatesh.

10. As noted above we have considered all these IA Nos.1, 3 and 4 and proceeded to pass common orders on 07.05.2016 as noted above. We have rejected I.A. No.3 preferred Under Order 1, Rule 10 of CPC through which the OP had pressed in to service to array the said R.L. Jalappa Hospital as OP-2 being the necessary party.

11. Vide said common order we allowed I.A. No.4 and issued summons to the said R.L. Jalappa Hospital, Kolar, again with a direction to submit FSL Report, Histopathology report, full post-mortem report and scan of skull and brain before and after surgery of the said deceased Venkatesh bearing in-patient No.930998. On 08.06.2016 in compliance of the said order Dr. Kiran of R.L. Jalappa Hospital, Kolar, with written memo stated that, no histopathology was conducted in this case and viscera was not sent to FSL and C.T. Scan report came to be submitted. For the sake of ready reference we deem it fit to reproduce relevant portion of the said written Memo (this is received in evidence as Exhibit-D.5 and the said scan repost as Exhibit-D.6):-

(i) No histopathology examination of any tissue was done at out hospital in respect of patient Venkatesh (hospital No.930998).

(ii) Post-mortem examination of the deceased Venkatesh was done at our hospital. Viscera was not sent for FSL examination and hence cannot be submitted.

(iii) C.T. of Brain was done for Mr. Venkatesh on 25.07.2013 (CT No.6081). The certified copy of the said report is enclosed.

12. The complainant No.1 has submitted her affidavit evidence by way of examination-in-chief and got herself examined as PW-1 and Exhibits-P.1 to P.26 came to be received in evidence.

13. The very OP has submitted his affidavit evidence by way of examination-in-chief itself and got himself examined as DW-1 and Exhibits-D.1 to D.6 came to be marked and received in evidence. And at this juncture it is worth to note these documents vide Exhibits-D.4 to D.6 were got produced by the very OP from R.L. Jalappa Hospital.

14. Further on behalf of the OP Dr. Nataraj.B being a General Surgeon/expert came to be examined as DW-2. This DW-2 has submitted his examination-in-chief by way of affidavit and has faced the cross-examination.

15. At this juncture it is worth to note that, this Exhibit-P.26 is a part and parcel of Exhibit-D.4 that consists of 42 sheets being the case-sheet that came to be submitted by the said R.L. Jalappa Hospital, Kolar, on being summoned which pertains to the said deceased Venkatesh. And Exhibit-P.26 is the specific document being a death summary pertaining to medico legal case and it is at sheet No.3. And this Exhibit-P.26 came to be marked and received in evidence by way of confrontation to the OP/DW.1.

16. Both the parties have submitted their respective written arguments through their learned counsel.

17. The learned counsel appearing for the complainant has submitted copies of 03 citations regarding which reference shall be made hereafter at appropriate stage.

18. Likewise the learned counsel appearing for the OP has submitted written arguments and made reference to 16 citations, however in all, 21 citations came to be referred and submitted during the course of oral arguments by the learned counsel appearing for the OP. (Five citations with memo at the time of oral arguments and remaining 16 citations that were referred at the time of written arguments)

19. Heard prolix, yet pains taking and enlightening oral arguments as advanced by the learned counsel appearing for both sides.

20. Therefore the points that do arise for our consideration in this case are:-

1. Whether the OP is guilty of deficiency in service?

2. If so, whether the complainants are entitled to the relief of compensation?

3. What order?

21. Findings of this District Forum on the above stated points for the following reasons are:-

POINT 1:- In the Affirmative.

POINT 2:- In the Affirmative.

POINT 3:- As per the final order

for the following:-

REASONS

POINTS 1 & 2:-

22. To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time.

23. The learned counsel appearing for the complainants placing reliance on pleadings, documentary evidence, contentions raised in the written arguments and on the strength of the principles enunciated in the citations relied by him at the time of oral arguments pressed in to service that on account of utter negligence on the part of the OP on 25.07.2013 around 11.00 AM the deceased Venkatesh who was then alive fell-down while on the way to scanning room and did sustain bleeding head injury and because of the apathy on the part of the OP the complainant No.1 with the assistance of said two persons by name Udaykumar and Manjunath took him to R.L. Jalappa Hospital at Kolar and on the very said day surgery was conducted for the head injury sustained; even then, on 26.07.2013 around 06.30 AM the said husband of the complainant No.1 succumbed.

24. As against the said arguments the learned counsel appearing for the OP while submitting oral arguments briefing on the facts and evidence and legal principles enunciated in the citations he relied; maintained that, because of the fever the said Venkatesh was admitted in the Hospital run by the OP for necessary treatment on 23.07.2013 and as on 25.07.2013 the said deceased Venkatesh who was then alive had developed discomfort in abdomen, the OP in the very interest of the said ailing person recommended for the scanning and he was shifted from the wheel-chair to the chair near the entrance of the scanning room at a distance of a few feet. And that at that point of time because of unannounced convulsions the said person fell-down from the chair sustaining bleeding injuries in the left ear, right nostril and head above the left ear. And that suturing was attended and then for higher treatment with referral letter the OP by sending the said ailing person to the R.L. Jalappa Hospital, Kolar, conducted himself in a very responsible manner. And that in spite of uneventful surgery that was conducted on 25.07.2013 if the said ailing person were to die on 26.07.2013 around 6.30 AM no negligence or deficiency in service could be attributed to the OP.

25. Further he maintained that, the very version of the fall given by the complainant at a different times since self-contradictory no importance should be given either to the complaint or to the evidence given by the complainant No.1. Further he maintained that, as the media unnecessarily high-lightened the incident by making reckless allegations against the OP, the case on hand would justify dismissal of the complaint being frivolous or fictitious as contemplated Under Section 26 of the Consumer Protection Act, 1986 and hence the OP be given costs indicated in the said provision.

26. With the said background now we proceed to appreciate the pleadings, oral and documentary evidence adduced by both sides and then to analyze the evidence in the light of the principles enunciated in the citations as relied by the learned counsel appearing for both sides.

27. True, in Para-2 of the complaint the complainants have pleaded that, for the purpose of the scanning the said ailing person was taken to the scanning room by walk though her husband was not able to walk. And also there is further pleading that, the OP insisted of the ailing person to come by walk instead of taking him in a wheel-chair. Further there is a plea that while so walking with the help of the sisters (nurses) because of the reeling of the head the said ailing person fell-down and this was due to the negligent act of the sisters (nurses) of the hospital which resulted in said bleeding injuries. And in fact this is the version given by the complainant No.1 in her affidavit evidence by way of examination-in-chief.

28. During the course of cross-examination of this witness an attempt was made by bringing it to her notice FIR being part of the charge-sheet marked as Exhibit-P.1 and the recitals in the FIR of which the complainant No.1 is the author reads vide Exhibit-P.1(a) thus:-

“FVgÀÄªÁUÀ ¢£ÁAPÀ: 25.07.2013 gÀAzÀÄ ªÉÊzÀågÀÄ ¸ÀªÀÄAiÀÄ ¨É½UÉÎ 11.00 UÀAmÉUÉ £À£Àß ¥ÀwAiÀÄ ºÉÆÃmÉÖAiÀÄ ¸ÁÌöå¤AUï ªÀiÁqÀ¨ÉÃPÉAzÀÄ w½¹zÁUÀ, ªÁqïð¤AzÀ £À£Àß ¥ÀwAiÀÄªÀgÀÄ £ÀqÉzÀÄPÉÆAqÀÄ ¸ÁÌöå¤AUï gÀÆA«ÄUÉ §gÀÄvÉÛÃ£ÉAzÀÄ ºÉÃ½zÀgÀÆ ¸ÀºÀ ªÉÊzÀågÀÄ PÉÃ¼ÀzÉ «Ã¯ï ZÉÃgï£À°è §®ªÀAvÀªÁV PÀÄ¼Àîj¹PÉÆAqÀÄ ¸ÁÌöå¤AUï gÀÆAUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄªÀ ¸ÀAzÀ¨sÀðzÀ°è UÀuÉÃ±ï ºÉ¯ïÛ PÉÃgï£À ªÉÊzÀågÁzÀ qÁ: UÀuÉÃ±ï ªÀÄvÀÄÛ E§âgÀÄ zÁ¢AiÀÄgÀ (£À¸ÀÄðUÀ¼À) ¤®ðPÀëöåvÉ ªÀÄvÀÄÛ ¨ÉÃdªÁ¨ÁÝj¬ÄAzÀ £À£Àß ¥ÀwAiÀÄ£ÀÄß PÉ¼ÀUÉ ©Ã½¹gÀÄvÁÛgÉ.”

29. It is not such contradictory version that is to absolve the OP from his negligence. Right from 23.07.2013 till 25.07.2013 when the said occurrence took place at about 11.00 AM in the very hospital of the OP, the said ailing person by name Venkatesh was under the custody and care of the OP.

30. Though taking the said patient to the scanning purpose is not pleaded as one of the issue to accuse the OP as guilty of deficiency in service as the same was unwarranted, the glaring facts which are before us make us to doubt the conduct of the OP with regard to his decision in recommending the said ailing person to have a scan for the contended abdominal discomfort. Usually the scan should precede some clinical observations and expected features like omitting and or diarrhea or dysentery and other causes like constipation, etc.,. We are purposely making this observation, for, right from 23.07.2013 till 25.07.2013 around 11.00 AM; the said patient had not complained anything with regard to abdominal discomfort. It should be remembered that as the said patient was under medication for the intermittent fever he was having, we are of the firm opinion that, the OP ought to have conducted some clinical tests and then certainly he ought to have opted for the scanning. So picking-up this patient to have a scan itself is shrouded with doubts.

31. At this juncture we feel quite necessary to reproduce the entire examination-in-chief of the OP/DW.1 which is by way of affidavit evidence. This affidavit evidence is submitted on 14.06.2016 necessarily after the submission of written version and recording of the evidence of the complainant/PW.1. This affidavit reads thus:-

“I, Dr. G. Ganesh, S/o. Gopalappa, aged 71 years and residing at Door No.1064, New Extention, Kolar, being the opposite party above named do hereby solemnly affirm and state on oath as under:

I submit that I am opposite party in this case and hence I am fully conversant with the facts and circumstances of the case and therefore deposing to the following facts herein below stated.

At the outset, I submit that all contentions on maintainability and merits stated in my version may be read as part and parcel of this Affidavit.

Without prejudice to the above contentions, I submit the Para-wise of my complaint by way of Affidavit as under:

I submit that the contents of Para 1 is a matter of information and the same have been taken note of.
I submit that the complainant brought her husband Venkatesh to the Hospital of Gowripet, Kolar on 23.07.2013 at about 10.30 a.m. for treatment since he was suffering from fever and after examining him, I advised her to admit him as in-patient. Accordingly, the complainant admitted him for treatment. I also advised for abdominal scan to the patient. The cause for convulsions in this patient is unknown and is not related to the fever. The other allegations contained in para 2 of the complaint with regard to the death of her husband due to negligence of myself and hospital sister is totally false, frivolous, concocted and baseless.
I further submit that as stated in Para 3 of the complaint, the complainant had lodged complaint, against me and sister of my hospital before Town Police, Kolar on 26.07.2013. They registered a criminal case against me in Cr. No. 192/2013 for the offence punishable under Secs. 304-A read with Sec.34 of I.P.C., it is also submitted that a charge sheet was filed against me before Hon’ble Prl. C.J.M. Court, Kolar in C.C.No. 50/2015 which is pending as matters stand. In fact the complainant has filed a false complaint against me. However, the Kolar Town Police without proper investigation had filed a charge sheet against me for the alleged offence even though I have not committed the said offence.
I submit that the averments of Para 4 may be partly true to the effect that the complainant’s husband was a mason by profession and with regard to the rest of the contents as alleged by the complainant that due to negligence acts and deficiency in service of OP, the complainant’s husband died, is totally baseless and incorrect.
It is submitted that the contents of Para 5 of the complainant are true to the effect that the complainant had issued a legal notice through her counsel on 20.06.2015 for which I had arranged to issue reply legal notice suitably through my advocate on 21.07.2015. However, remaining contents of the Para 5 are totally incorrect.

I further submit that whatever treatment rendered to the Complainant’s husband at our hospital is strictly as per the standard medical practice and there is no negligence of whatsoever nature either on my part or on the part of sister working in our hospital.

I further submit that the Compensation amount of Rs.10,00,000 as claimed by the complainant, is not only legally untenable but also reflects the greed and avarice of the complainant. It is further submitted that the complainant had filed this complaint with an ulterior motive to tarnish the reputation of the doctor as well as the hospital.

Under the above stated facts and circumstances, the opposite party pray this Hon’ble Forum be pleased to dismiss this complaint in the interest of justice and equity.

This is my name and signature and all that are stated above are true to the best of my knowledge, information and belief.”

The cursory glance of this affidavit mainly taking in to consideration Para-2 would disclose that, the said patient by name Venkatesh was brought to him by his wife (complainant No.1) on 23.07.2013 and at about 10.30 AM and the treatment he had commenced for the fever, after examining him and he had even advised for admission of him as an in-patient. Accordingly the said patient was admitted for the treatment and suddenly this OP being responsible Doctor asseverates that, he had also advised for abdominal scan to the patient. Here he is not even whispering about abdominal discomfort the said patient had contentedly experienced to have. Therefore we reaffirm our view that, choice of the OP to take for abdominal scan was without any pre-warranting history. This OP had every time at his disposal before swearing to this affidavit. And he had every opportunity to recite through this affidavit evidence as to what all led him on that day to recommend for scan so as to bring him to the scan room.

32. Again there is a hurried observation that cause for convulsions in this patient was unknown and it was not related to the fever. How come this opinion the OP could arrive at without explaining himself as to what were the factors that made him in a very self convincing manner that the onset of convulsions could not be ascertained with regard to the cause. Further he is sure that fever was not the cause.

33. Again we fail to understand why this OP remained tight lipped with regard to the conducting of the said ailing person till the scanning room and the fall that took place which in-disputedly resulted in bleeding head injury as well from the left ear and the nostril. Was it not his primary responsibility to explain these details as he had ample time and opportunity to do so?

34. In the beginning we have already noticed with regard to the contentions raised by the OP in resising claim of the complainant on the said accounts including the episode of fall. Indisputably the fall of the said patient had taken place on 25.07.2013 around 11.00 AM in the very hospital of the OP. Indisputably the OP was the custodian. Indisputably it was the OP who was treating the said patient. Even then why he did not choose to avail this opportunity in explaining the events and his efforts through this affidavit evidence is quite enigmatic.

35. At Para-10 of the written version he has contended that, after 03 days of such admission on 25.07.2013 as the said Venkatesh was to be scanned for his abdominal discomfort accordingly the complainant took him to the scanning room. Here we pause for a while and we deem it appropriate and advisable to reproduce the relevant portion of Para-10 of the written version which reads thus:-

10. The complainant is guilty of suppressing material facts. The true facts of the case are, on 23.07.2013, at about 10.30 AM, the husband of the complainant with an history of fever. After examining him, the opponent has advised the complainant to admit her husband as an inpatient. At the time of his examination, the complainant and her husband have revealed that the patient had already taken treatment in some other Hospital as he was suffering from fever for more than 4 days later on after examining him, the opponent has advised him for scanning for his abdominal discomfort, accordingly the complainant took him to the Scanning Room and when he was sitting on the chair, he has developed severe convulsions and due to the said impact of convulsions (Fits) he fell down. The said convulsions are very violent and intolerable due to his fall on the door stopper and the opponent suspected cerebritis and Enchephelitis bleeding injuries on his nose and head due to the impact of force of falling on the aluminum metal door stopper, the above said suspected injuries might have been caused. Immediately, the same was noticed by the opponent when he was in his chamber, he rushed to the spot and took him to emergency room with the support of other Doctors and given all possible first aid treatment. While giving treatment, the husband of the complainant, the opponent has noticed that he had sustained injuries as stated above, thereafter immediately he has advised the complainant to shift the patient to major Hospital for further treatment, investigation, management whole discharging him from opponents hospital, the opponent gave referring letter suspecting head injury of the patient to the opponent and arranged for Ambulance. In pursuance of the above said reference letter, the opponents has taken the patient in a Ambulance.

So, the OP has advised him for scanning for his abdominal discomfort.

36. When the OP could recite such version we find it conundrum as to what for the OP remained reticent with regard to his own such pleadings when it came to the stage of submitting examination-in-chief by way of affidavit?

37. Therefore without hesitation we draw an inference that, the said pleadings were imaginary and hence the OP did not opt to swear to such contention in his affidavit evidence.

38. Therefore we do not propose to attach much importance to the version of the complainant with regard to the narration of the incident that led to fall and sustaining of he said bleeding head injuries, as pleaded and deposed to by the complainant No.1 before us.

39. At this juncture with all responsibility and without fear of being gainsaid we observe that since the OP got the said Venkatesh admitted in his hospital on 23.07.2013 who remained so as in-patient till 25.07.2013 till the said occurrence took place, it was up to the OP to come up with truthful versions before us as to what transpired on that day that led to fall of the said patient.

40. Going by the said recitals in the written version it is evident that, due to convulsions the said patient fell with force and because of the impact of the force on falling on the aluminum metal door stopper the above said suspected injuries might have been caused. It is pertinent to note at this juncture that the complainant No.1 by herself had taken her husband to scanning room and the fall took place when he was sitting in the chair. The OP is the author of this written version. Nowhere he has stated with regard to the nursing staff taking the said patient in the wheel chair and in the process falling of the said patient on account of contended convulsions. What more is required to come to the conclusion that, the OP was grossly negligent in his medical service? Let it be. Let us peruse the account given by this witness with regard to the incident of fall. In Para-8 he concedes that whatever that is noticed in the in-patient record maintained in his hospital was true and he has stated that, “patient developed convulsions while sitting on the chair in the open corridor had fall from chair and sustained head injury”. So the recitals to be found on page-4 of this in-patient record being part of Exhibit-P.1 copy of the charge-sheet gains significance. (At this juncture it is worth to note that, this particular Page-4 being part of Exhibit-P.1 was totally ill-eligible and when DW.2 expert came to give evidence who had the advantage of having the in-patient record referred to this Page-4 which was legible and we got the better, copy of this particular page and annexed it in the records). This document discloses that, on 25.07.2013 around 11.55 AM the patient developed convulsions while sitting (the word is mis-spelt as site but we never mind we overlook the mistake and read it as sitting) in chair in open corridor and had a fall from the chair and sustained head injury and bleeding from scalp injury (2 cm length) and bleeding from left ear, etc,. Soon after the incident we believe these recitals were so made.

41. Now we look back to the recitals in Para-10 of the written version. As noticed earlier the history given in this written version is because of the convulsions there was a forceful fall on the door stopper which was aluminum metal stopper. Surprisingly such recitals are not to be found in recitals made in page-4 of this in-patient record being part of Exhibit-P.1 the charge-sheet. When the responsible person the OP being a Doctor is careless and reckless while accounting to the incident in the written version, in the affidavit evidence and by way of answer given in the cross-examination does it not speak of utter negligence while treating the said patient? The answer is emphatic yes.

42. Now we are compelled to go through the recitals made in reply dated: 21.07.2015. The OP having instructed his learned counsel gave such a reply to the then learned counsel appearing for the complainants. We reproduce the entire para-5 of this reply which reads thus:-

“5. My client instructs me to inform you that your client has suppressed true facts of the case. The real facts are that on 23.07.2013, at about 10.30 AM, your client’ husband Venkaesh came to my clients Hospital along with your client with an history of fever, after examining him, my client, he has advised her husband to be as a inpatient as he had already taken treatment in some other hospital as the fever was persisting for more than one week. Later on after examining him, my client has advised him for scanning accordingly your client took him to scanning room and when he was sitting on the chair, he had developed convulsions and due to the impact of the said convulsions, he fell down. The said convulsion has very violent and intolerable due to his fell on the door stopper he sustained bleeding injuries on nose, head, etc., Due to the force, he fell down the aluminum metal door caused damage. Immediately the same was noticed by my client when he was his chamber, rushed to the spot and took him to Emergency Room and given all possible first aid treatment, while giving treatment, my client has noticed that he had sustained severe injuries, thereafter immediately he has advised your client to shift the patient to the major Hospital for further treatment, at that time, my client has given discharge summary to your client. In pursuance of my clients advise, your client and other attendants have taken the injured person in a Ambulance which was arranged by my client. My client further instructs me to inform you on the next day i.e., on 26.07.2013, in the morning your client came along with some unruly elements and tried to create unhealthy atmosphere by shouting etc., by that time, the Police came and intervened and thereafter they went away. Subsequent you client has lodged a false complaint against my client on the basis of false allegations, due to pressure and influence put by your client and her supporters, the Police have registered false case and filed charge sheet alleging false allegations against my client, though he has not committed any alleged negligent acts as suggested in your notice.”

43. Now it is quite clear that on advice by the OP the complainant No.1 took her husband to the scanning room. Therefore reaching of the said patient to the scanning room was totally unaided. If the complainant No.1 being wife was to accompany her husband it does not absolve legal duty on the part of the OP by himself and his nursing staff. The history as per this document is because of the convulsions the said patient fell down while sitting in the chair. Peculiarly this document does not suggest wheel chair.

44. Again we get back to the evidence of OP in Para-4 of the cross-examination. He states from 23.07.2013 till 25.07.2013 in the medical records no mention was made with regard to abdominal discomfort and he states that, on 25.07.2013 the said patient so complained while he was taking rounds. Therefore simply because the said patient so complained immediately the OP forms an opinion to send the said patient for to have scan? No doubt it is the discretion of the OP Doctor to advice certain tests including the test for scan. But before doing so, as observed by us earlier a sort of prehistory and clinical symptoms were required for the OP to come to such conclusion for referring to the scan. At any rate bringing of the said patient till the scanning room is not properly and convincingly explained by the OP doctor who was legally duty bound to do so.

45. In Para-9 of the cross-examination he states that, he was to agree that in the FIR there was a mention that, the said patient had a fall from the wheel chair. How these anomalies do occur? Only to create doubts and then see that the OP is screened from making him accountable for the lapses on his part. We repeat, that neither the complainant No.1 being the wife of the deceased nor for that matter anybody else were accountable to state before us as to how the said patient was conducted to the scanning room and as to how he fell. But it was the OP and the OP only and none else to come-up with the truthful version. Here is the OP who changes his version unmindfully come what may. In the result we unhesitatingly hold that the OP was grossly negligent in recommending the said ailing patient for scanning and equally grossly negligent in making the said patient to reach the scanning room. We are aware that we cannot expect the OP to hold the hands of the ailing person to bring him to the scanning room as he was/is a Doctor to treat the patients. But according to us he was legally duty bound to see that experienced and qualified nursing staff ought to have attended carefully the said ailing Venkatesh for being brought to the scanning room, as he was in-patient because of delicute health condition. That has not been done. Therefore we again hold that, the OP was grossly negligent.

46. The plea, that the said ailing Venkatesh all of a sudden at the time of fall experienced unannounced convulsions is unbelievable. The very Exhibit-P.1 being in-patient record issued by the Ganesh Health Care the history recorded by the OP is to disclose as revealed in sheet No.1 that, there was no previous illness of convulsions. And on that particular day being 25.07.2013 till he was made to reach the scanning room right from the day one of admitting of the said ailing Venkatesh on 23.07.2013 there were no symptoms of convulsions. Therefore unhesitatingly we come to the conclusion that, because of the fall and sustaining of the head injury as well as bleeding through left ear and the nostril as a subsequent event the said Venkatesh lost his consciousness. To support our such observation we rely on the records which were made available by the very OP through the said R.L. Jalappa Hospital.

47. But before doing so, we want to place on record yet another irresponsible evidence, given by this OP doctor as DW-1 in answer to cross-examination. In Para-10 of the cross-examination he states that soon after the fall when he noticed the patient there was scalp injury on the right side over the ear, and he had nasal bleeding as well the bleeding from the right ear. We are mindfully observing about this, for, in his own document being the said in-patient records as to be found on Page-4 as noticed earlier by us such a bleeding was from left ear. So how to believe that, this OP conducted himself in a very responsible manner with regard to the said ailing Venkatesh who was in his custody as in-patient right from 23.07.2013 till 11.50 AM on 25.07.2013 at which point of time there was a fateful fall of the patient? Our answer is that we cannot believe the OP as responsible doctor.

48. Now we concentrate on evidence of Dw-2 Dr. Nataraja.B who has given evidence as an expert on behalf of the OP in Para-2 of the cross-examination he has stated that, on going through the records he came to know that bleeding through was his left ear. Therefore the evidence of the OP doctor/DW-1 suffers with self contradictions. And the contradictions by way of commission and omission as noted above by us have crept-in, for, the OP being negligent right from the beginning since tried to avoid the clutches of law.

49. Now we reproduce paragraphs 14 to 16 of the cross-examination version of DW-2 the same are:-

“14. If a patient with head injury followed by coma is brought to the hospital necessarily the line of treatment shall be for convulsions. Even in a case where severity of head injury is confirmed then also we give treatment for convulsions as a precautionary measure. Even when treatment for convulsions is on there shall be chances of getting in to convulsions, but rarely. To sustain fracture of temporal bone the force of fall should be major. With patients of severe head injuries 20% of them are expected to get convulsions (seizures).

15. Severe head injury might lead to drowsiness and coma within few hours which could cause even death. I do not agree to the suggestion that, in such situation recording of BP and pulse rate is impossible. I agree that, with patients under such conditions there shall be constant variation in BP and pulse rate. I do not agree to the suggestion that, after the said patient Venkatesh had a fall leading to head injury his BP and pulse rates were not checked.

16. I agree that in Exh.P.26 with regard to RPT CT Brain there is mention of SDH and EDH. I agree that the said patient had undergone de-compression surgery under anesthesia in the R.L. Jalappa Hospital. I agree that this patient had no history of EDH and SDH when he was brought to the hospital of the OP-Dr.Ganesh. I agree that as per the records maintained by the OP-Dr.Ganesh on 25.07.2013 at 11.30 AM the said patient had no fever. On going through this record I agree that during the period of those three days from 23.07.2013 to 25.07.2013 the said patient had not complained of any stomach ache.”

50. In Exhibit-D.4 the case-sheet as submitted by the R.L. Jalappa Hospital on page-13 it would disclose with regard to history of present ailments as convulsions being only one episode. With regard to presenting of the complaint it would be noted in this sheet that, there was a self-fall while getting up from the chair due to giddiness. Therefore we will have to concentrate to ascertain as to when the said convulsion did appear?

51. We have ample documentary evidence before us. At sheet No.22 of this case-sheet being Exhibit-D.4 there is a mention that on 26.07.2013 around 06.20 AM the said patient expired due to cardiac arrest. Placing reliance on such recital the learned counsel appearing for the OP maintained that the cause of death shown in the post mortem report that death was due to head injury sustained cannot be believed. The said line of approach is incorrect, for, soon after the death the death report so made cannot be accepted as a whole truth. It was only a death intimation, whereas, information given in the post-mortem report is after conducting post mortem examination and hence the same is bound to be believed.

52. Besides, we have Exhibit-P.26 which came to be confronted to DW-1 and this document being a death summary is part and parcel of the Exhibit-D.4 the case-sheet. (cause of death has been shown as severe head injury besides investigation done disclosed SDH and EDH). Therefore because of the head injury the said patient had lost his consciousness and as he was shifted to R.L. Jalappa Hospital though the surgery was conducted the said patient could not survive.

53. Therefore in the light of the expert opinion evidence as noted above given by DW-2 we safely come to the conclusion that, without any pre-history of convulsion the said Venkatesh had a fall in the hospital of the OP on 26.07.2013 around 11.00 AM and it was on account of utter negligence on the part of the OP and his staff. But for such fall and head injury sustained there could have been no reference of him to R.L. Jalappa Hospital to conduct surgery. Therefore the surgery was made necessary because of the said fall resulting in head injury and as such a fall was on account of utter negligence of the OP and his staff the square liability would lie on him only.

54. Further we are to observe that there is still more in the very evidence of the OP/DW-1 coupled with other documentary evidence, which would indicate inexcusable gross negligence resorted to by the very OP. We find it worth to reproduce the entire text of death summary as issued by R.L. Jalappa Hospital and Research Center, Tamaka, Kolar. That commences from diagnosis till end. It reads thus:-

“DIAGNOSIS: SEVERE HEAD INJURY

SURGERY: EMERGENCY RIGHT FTP DECOMPRESSIVE CRANIOTOMY LEFT TP CRANIOTOMY AND EDH EVACUATION UNDER GA ON 25.07.2013.

HISTORY OF PRESENTING ILLNESS: This gentleman was brought to us following alleged self-fall from chair on 25.07.2013. He lost his consciousness following the fall and had one episode of convulsion and left ear, nose and mouth bleed. He was admitted to Ganesh Health Care, Kolar for the management of febrile illness.

PAST HISTORY: Not a known DM, HTN, TB, BA.

ON EXAMINATION:

Patient was unconscious with GCS-E1 VI M3 (05/15), Pupils right 5mm and left 2mm sluggishly reactive to light.

PULSE:-100 b/min BP:- 150/100 mmHg

CVS: S1 S2 heard RS:- B/L Air entry equally good

P/A- Soft, non-tender

Chest compression and pelvic compression was negative

INVESTIGATIONS:-

C.T. Brain (25/07/2013), Right FTP acute SDH with burst right temporal lobe left TP acute EDH with fracture left temporal bone.

RPT CT BRAIN (25/07/2013): complete evacuation of SDH/EDH, adequate decompression noted, left frontal small bleed noted, no midline shift.

COURSE IN THE HOSPITAL:- This gentleman was admitted and evaluated. He was diagnosed to have sustained severe traumatic brain injury for which he underwent emergency right FTP decompressive craniotomy, left TP craniotomy and EDH evacuation under GA on 25.07.2013. Post-op he received adequate prophylactic antibiotics, analgesic, anti-edema measures and supportive care. Post-op CT brain was found satisfactory decompression. On 26.07.2013 he developed cardiac arrest. All attempts of resuscitation failed. He died on 26.07.2013 at 06.25 am.

CAUSE OF DEATH: Severe head injury.”

55. Therefore it is worth to note that, the said patient had developed cardiac arrest which was consequential effect and not the main cause and main cause of death has been affirmed as severe head injury, which stood reflected in the post-mortem report also. Hence much importance cannot be given as noted in the sheet No.22 about reporting of the death wherein it has been mentioned as due to cardiac arrest. It should be remembered that both are truthful versions. Both would mean the said patient developing cardiac arrest and the head injury he had already suffered being the causes for death.

56. Certain objections were raised during the course of oral arguments by the learned counsel appearing for the Op that making mention of MLC while issuing the death summary as something unusual and unacceptable. There is nothing unusual and unacceptable, for, it should be remembered that crime came to be registered at above stated number for offence made punishable Under Section 304A of IPC that ultimately resulted in submission of the charge-sheet against the OP for the said offence, that too after investigation. There is a post-mortem report. Certainly the case should be termed as medico-legal case.

57. Now in the light of the said observations made in Exhibit-P.26 we are bound to hold that, there was Extra Dural Hemorrhage which in abbreviation described as EDH meaning thereby bleeding being the common term. Likewise SDH meaning thereby Sub Dural Hemorrhage, which the patient had suffered on account of fall. In Para-6 of the cross-examination the OP/DW-1 has denied the suggestion that if a person were to fall and sustain head injuries consequently he would suffer from said EDH and SDH. His such denial to the suggestion is insignificant. For, in Para-7 of the cross-examination he has answered after going through said Exhibit-P.26 and he has agreed that there is mention of EDH and SDH. Further he has agreed that in the said document there is mention of self-fall from chair on 25.07.2013 while giving history of presenting illness in the said document. Therefore his such denial for the suggestion would lose significance in the presence of his own admission that in Exhibit-P.26 there is a reference with regard to EDH and SDH including while making mention of history of presenting illness is fall from the chair. Therefore every importance is bound to be attached to the post-mortem report which affirms severe head injury as cause of the death.

58. Now let us take in to consideration Exhibit D.6. For the sake of ready reference we reproduce the entire text of the findings. The same reads thus:-

CT BRAIN (PLAIN STUDY)

Clinical history – Fall.

FINDINGS:-

Evolving extra dural hemorrhage approximately measuring 5 x 4 cms with a maximum width of 1 cms is noted involving left temporo-parietal convexity.

Another sub dural hemorrhage involving right fronto-temporo-parieto-occipital convexity with a maximum thickness of 0.9 cms is noted causing mass effect and a midline shift of 0.6 cms to left with tentorial and right sylvian fissure extension.
Minimal sub arachnoid hemorrhage component is also noted in right temporo-parietal regions.
Rest of the brain parenchyma is normal in its attenuation.
Basal Ganglia and Thalami are normal in its attenuation.
Cortical sulci, Sylvian fissures and Basal Cisterns are effaced-cerebral edema.
There is evidence of fracture of squamous part of left temporal bone extending into mastoid and tympanic part (probably involving the ottic capsule) with collection in few of the left mastoid air cells.
Collection noted in bilateral sphenoid sinuses.
Soft tissue scalp swelling over left parietal region.

There is mention of EDH and SDH in greater detail. And hence the said surgery was resorted to by the R.L. Jalappa Hospital, Kolar. We again observe that fall was when the said patient was still conscious and consequence of fall resulted in said injuries and as a necessary further consequence the said patient entered in to, which can be termed as convulsions. And we have noted in greater detail while appreciating the evidence of the DW-2, who has conceded that the fall resulted in to further consequences in the form of injuries that would lead to comma. Thus even as per the evidence of OP/DW-1 as could be noted in Para-7 of the cross-examination which is again reflected in Para-16 of cross-examination of DW-2 the expert; the said patient had no history of EDH and SDH when he was brought to the hospital of OP as such it was not the convulsions that became the cause for fall and contended injuries.

59. Therefore by going through the said oral and documentary evidence of OP/DW-1, DW-2 and said postmortem report and Exhibit.P.26 and D.6, we are to observe that, the fall did cause the bleeding head, left ear and nostril injuries that further led to convulsions. As such, the convulsions succeeded the fall and said injuries and not preceded as tried to be imagined by the OP.

60. That Dr. Balaji, son of the OP being a surgeon sutured the bleeding injuries of the head (reliance placed on Para-12 of the cross-examination of DW-2 the expert), perse, it is not to exonerate the OP of his grave negligent conduct. For, such suturing was occasioned and necessitated because of the fall which could have been avoided had the nursing staff and the OP were mindful and cautious in bringing the said patient to the scanning room.

61. For the reasons we have assigned with regard to the bald examination-in-chief of the OP/DW-1 which is perfunctory as it is deadly silent, we repeat, with regard to the mode adopted by which the said patient was brought to the scanning room and the abdominal discomfort he had complained, we are bound to observe that the said injuries noted in the in-patient card at sheet No.4 that the patient had developed convulsions while sitting in chair in open corridor and had a fall from chair are self-serving and self-saving notes and as they are far from truth we have no hesitation to hold that the said recitals were made with ulterior purpose.

62. Following are the citations submitted with Memo on 25.06.2016 by the learned counsel for the complainant the same with relevant principles are:-

Copy of the common judgment in Appeal No. 2867/2012 clubbed with Civil Appeal Nos.692/2012, 2866/2012, 731/2012 and 858/2012. (These citations is nothing but a reported case in AIR 2010 SC 1162 as also relied by the learned counsel appearing for the OP at serial Nos.21, hence the principles enunciated in this case shall be the same as to be noted while considering this citation for the OP).
The Judgment of the Hon’ble Supreme Court in the case of M/s.Spring Meadows Hospital & Another –V/s- Harjol Ahluwalia, with Civil Appeal No.7858 OF 1997, dated: 25.03.1998. The principles enunciated in this citation is,

“in recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that, it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.”

(Emphasis supplied)

Judgment dated: 08.03.2010 from the Hon’ble Supreme Court of India, in the case of V.Kishan Rao –V/s- Nikhil Super Specialty Hospital. The principles enunciated in this case reads:

“Consumer Forum can also, in its discretion, permit expert evidence but it is not bound by views expressed by expert because medical negligence is a mixed question of law and fact, to be resolved finally by Forum – In complicated civil cases requiring expert evidence, parties are also free to approach civil court instead of Consumer Forum – Consumer Protection Act, 1986 – Ss. 1(o), 3, 13 and 14 – Civil Procedure Code, 1908-S.9-Evidence Act, 1872 – S.45 – Penal code, 1860 – S. 304-A.”

“Said test laying down that a doctor “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”

“In England, Bolam test is now considered merely a rule of practice or of evidence and not a rule of law – The test needs to be reconsidered in India also in view of Art. 21 which guarantees right to medical treatment and care.”

63. Likewise following are the 21 citations with principles which came to be submitted by the learned counsel appearing for the Ops with Memo dated: 26.07.2016 and the same reads:-

The first 05 in the serial Nos are mentioned in the Memo whereas, remaining citations are as covered by the written arguments.

01. II (2014) CPJ 368 (NC) passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.3527 of 2012 between Madaan Surical and Maternity Hospital through its proprietor, Dr.T.R. Madaan and Another V/s. Smt. Santosh and Madhumita Diagnostic Centre. The principles enunciated in Para-10 are:-

“10. There are four basic elements to constitute a medical negligence/malpractice case. The four legal elements (4 D’s) must be proven by complainant to claim in a medical negligence case:-

(a) Duty-a professional duty owned to the patient;

(b) Deficiency/Breach of such Duty;

(c) Direct Causation-injury caused by the breach (causa Causans)

(d) Resulting Damages.

Further it is held that, “the liability of a Doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care”.

02. Revision Petition No.3084 of 2015 order dated: 04.01.2016 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, between Sunder Lal & Others V/s. Sanjeev Arora & Others. The principles enunciated in this citation are restriction of the principles enunciated in 1(2009) CPJ 32 (SC) – Martin F. D’Souza V/s. Mohammed Ishfac. And the same read – “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 professionals, sometimes have failures. A lawyer cannot win every case in his professional carrier, but surely he cannot be penalized for losing a case provided he appeared in it and made his submission”.

03. Consumer Case No.42 of 2003 decided on 05.01.2016 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Manika Roy & Others V/s. B.L. Chitlangra & Others. The principles enunciated in this case are adoption of the principles reported in AIR 1969 SC 128, which reads:-

“(a) a duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give; and

(c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.”

04. Consumer Case No.308 Of 2001 decided on 25.01.2016 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Master Vatsal Aniket Verma & Others V/s- Gupta Nursing Home & Others. In this case principles enunciated in Achutrao Haribhau Khodwa & Others V/s. State of Maharashtra & Others reported in (1996) 2 SCC 634 have been adopted and the same reads:-

“in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession.”

(Emphasis supplied)

05. (2010) 5 Supreme Court Cases 513 in V.Kishan Rao V/s. Nikhil Super Speciality Hospital & Another. The principles enunciated in this case reads:

Citations furnished and relied by the OP.

06. I (2003) CPJ 305 in Jai Prakash Saini V/s. Director, Rajiv Gandhi Cancer Institute and Research Centre & Others- decision of the Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi. The principles enunciated in this citation reads thus:-

“Doctor not negligent only because something went wrong-prescribed procedure in diagnosing ailment and following line of treatment followed- No negligence/deficiency in service proved - complaint dismissed.”

07. I (2004) CPJ 123 in Smt. Vimlesh Dixit V/s. Dr.R.K.Singhal, passed by the Hon’ble Uttaranchal State Consumer Disputes Redressal Commission, Dehradun. The facts and principles are:-

“Consumer Protection Act, 1986 – Section 15 – Medical Negligence – Shoft humourous right bone broken – Operation conducted – Portion below wrist of right hand paralysed – Alleged, nerve of hand cut at time of shoft humourous plaster due to negligence of doctor conducting operation – Allegation not proved in absence of reliable evidence supported by expert evidence – Failure of operation not amount to negligence – Complaint rightly dismissed by Forum.”

08. I (2004) CPJ 79 (NC) – Mam Chand V/s. Dr.G.S.Mangat Of Mangat Hospital. The principles of this citation are:-

“Compensation awarded by State Commission-Hence appeal – Allegation not proved by material on record – Absence of evidence in support – Insertion of drainage tube led to complications and increase risk factor – Non-insertion not amounts to medical negligence (injured in accident whose leg was ultimately amputated) – Complaint dismissed.”

09. III (2004)CPJ 20 (NC) – Inderjeet Singh V/s. Dr. Jagdeep Singh. It was a case of implanting the lens and plea is:-

“Both the lower Fora have held that there is no evidence brought on record by the complainant that there was any negligence shown by the respondent while implanting the lens in the eyes of the complainant resulting in persisting problem in the left eye.”

10. 2002 INDLAW SCDRC 16140 equivalent to III (2002) CPJ 242 – Dr. Manjit Singh Sandhu V/s. Uday Kant Thakur & Others (decision of the Hon’ble State Consumer Disputes Redressal Commission. In this case the principles enunciated in Achutrao Haribhau Khodwa V/s. State Of Maharashtra & Others have readopted and the same has been noted above.

11. III (2000) CPJ 558 decision of the Hon’ble State Consumer Disputes Redressal Commission, New Delhi – Rajinder Singh V/s. Batra Hospital & Medical Research Centre & Another – The principles enunciated in this citation as noted on Page-8 reads thus:-

“Negligence: duties owned to patient. A person who hold himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

12. 2000 INDLAW SCDRC 461 (State Consumer Disputes Redressal Commission) PUNJAB in Ashok Kumar V/s. Dr. Suresh Sharma. The principles enunciated in this citation is to the effect that, “it cannot be said with exactitude that treatment of the complainant by the OP was against the norms prescribed under the medical jurisprudence or that the OP in any way was negligent or deficient in performance of his duties”.

13. AIR 1969 Supreme Court 128. The principles are akin to as noted supra citations at Serial No.3 and 11 in Dr.Laxman Balkrishna Joshi Appellant V/s. Dr. Trimbak Bapu Godbole & Another.

14. AIR 2010 Supreme Court 1162 in Malay Kumar Ganguly V/s. Sukumar Mukherjee & Others- The principles enunciated vide head note (j) are:-

(J) Consumer Protection Act (68 of 1986) Ss.2(g), 21 – Medical negligence or deficiency in service – Determination.

For establishing medical negligence or deficiency in service, the Courts would determine the following:-

No guarantee is given by any doctor or surgeon that the patient would be cured.
The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
In a complicated case, the Court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability”.

15. II (2000) CPJ 345 (passed by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh,) in N.S. Sahota V/s. New Ruby Hospital & Others. The principles enunciated in this citation is:-

“Consumer Protection Act, 1986 – Section 15 – Appeal – Section 2(1)(g) – Medical Negligence – Expert Evidence – Burden of Proof – Complaint filed alleging medical negligence – Burden of proving negligence is upon complainant – No expert evidence produced – Complaint – Dismissed – Appeal.”

16. III (2000) CPJ 79 – Nirmalendu Paul V/s. Dr. P.K. Bakshi & Another – decision of the Hon’ble SCDRC, West Bengal. The facts and principles are:-

“Being dissatisfied with the result of operation, the complainant consulted some renowned Surgeons of the Town for regaining vision of his left eye. But there was no improvement, and he lost vision of his left eye. The complainant makes OP-1 responsible for losing the vision of his left eye. He states that one thread Cord was not removed after the initial operation. But it was removed after a lapse of 2 years when he complained of losing regular shape of left eye. According to the complainant this non-removal of the Cord was an act of negligence on the part of OP-1 and this resulted in the loss of vision. As noticed earlier, the complainant consulted various renowned Physicians of his town but none of them has observed that the loss of vision was attributable to the wrong surgery done by OP-1. The complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the complainant should establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complaint. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the Ops. So he is not entitled to get any relief in this case. In view of the aforesaid, we think that the case should fail. Ordered that the case be and the same is hereby dismissed on contest but without cost.”

17. II (2004) CPJ 504 (BIHAR) in Dr. Akhil Kumar Jain V/s. Lallan Prasad. The facts and the principles are:-

“On the perusal of the impugned order of the District Forum it is crystal clear that District Forum has based his finding against the appellant on the fact that after the operation and transplantation of lens the eye sight was not resorted to the complainant and at IGIMS, Patna it was found that in spite of operation and grafting of the lens he has very little eye sight and that proves that his operation was performed negligently by the appellant this is not a correct finding based on assumption and hypothesis. The District Forum has not referred to in his order what was the expert evidence to come to the finding that operation conducted by the appellant was negligent which resulted in to the loss of the eye sight of the complainant. Simply because his eye sight was not restored and it deteriorated after the operation and transplantation of the lens is not a valid reason to come to this finding that appellant was negligent. Therefore the impugned order is not in accordance with the settled law and it is fit to be set aside.”

18. II (2004) CPJ 102 (MP) – Marble City Hospital & Research Centre & Others V/s. V.R. Soni. In this case it is held that,

“The respondent/complainant has not produced any expert medical opinion that, there has been any negligence on the part of the appellant Doctor in performing the said operation. The burden of proving negligence rests upon the person who asserts it. In medical negligence cases, it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill. See, the decision of Madhya Pradesh High Court in case of Smt. Sudha Gupta & Others V/s. State of M.P. & Others, 1999 (2) MPLJ 259.”

19. I (2012) CPJ 502 (NC) – Ram Avatar Sharma V/s. Dr. Nabin K. Pattanaik. The principles are:-

“(ii) The settled law on the subject of medical negligence requires that to hold a medical practitioner guilty of professional negligence, the standards of an ordinary practitioner of that discipline will have to be applied, not those of the highest order of skills and expertise nor of the lowest. Moreover, the allegation(s) will have to be established on the basis of medical record and, as far as feasible, expert opinion or medical literature on standard practices and procedures. It is clear from the impugned order and the records brought before us that the finding of the State Commission against the respondent falls woefully short these requirements, particularly the latter.”

20. I (2001) CPJ 8 in Amarsingh V/s. Frances Newton Hospital & Another. The principle enunciated in this citation is:-

‘The diagnosis and treatment given by the OP-1 has been challenged by the complainant leveling allegations against him but at the same time he has not produced any evidence to prove these allegations leveled in the complaint against the OP-2. No expert opinion has been produced by the complainant to contradict the report of the Board of Doctors. All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the Court that his version of the facts is the correct one.

In the case in hand, there is nothing on record to prove the negligence of the OP-2 whereas the case of the doctor gets more strengthened by the report of the Board of the Doctors and cancellation of the FIR lodged by the complainant.”

21. I (2003) CPJ 153 (NC) in Dr. Harkanwaljit Singh Saini V/s. Gurbax Singh & Another. In this case it is held that:

“The Commission cannot constitute itself in to an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based. In the present case Dr. Saini said that the X-ray report indicated a smalt opacity and that such like opaque shadow become visible for many other causes the calculus. It could net be assumed that still stone existed in the right kidney when had not been operated upon by Dr. Saini.”

64. By following the principles enunciated in second citation as relied by the learned counsel appearing for the OP we are to conclude that, the mistake committed by the OP is not even bonafide and hence the negligence committed by him cannot be pardoned.

65. Coming to the principles enunciated in 3^rd citation as relied by the learned counsel appearing for the complainant we are to observe that, though the discretion could be expertised to permit to lead expert evidence the Forum need not be bound by vies expressed by experts because medical negligence is a mixed question of law and facts which to be resolved finally by the Forum. We have to observe that in the very interest of the OP we have gone through the said expert evidence of DW-2 and we have come to the said conclusion.

66. With regard to the principles enunciated in the said citations as relied by the learned counsel appearing for the OP we have fallowed the guidelines as enunciated in citations vide serial Nos. 1 to 13 with care and caution to see that the OP who was entrusted with duty of care in undertaking the said case failed in exercising duty of care and also failed in the duty of care in the administration of the treatment.

67. We have also followed the principles enunciated in citation vide serial No.14 and we have come to the conclusion that, the OP failed to act in accordance with the standard, reasonably, competent medical means and hence is guilty of gross negligence.

68. The citations at serial Nos.15 to 21 speak with regard to burden of proof on the part of the complainant to lead expert evidence to fastan the liability of negligence on the doctor. The said medical records gone through by us convincingly pinpointed that it was the utter negligence on the part of the OP that led to ultimate death of the said unlucky Venkatesh and the need of expert evidence since has been overcome by the very OP by leading evidence of said DW-2, no infirmity crept in to come to the said conclusion of negligence on the part of the OP.

69. Furthermore, we are to observe that even the medical records available vide said Exhibit-P.26, D.4, D.6 and the post mortem report do indicate that gross medical negligence in handling the said patient in bringing him to the scanning room was the cause for fall that led to said complicated injuries which could have been avoided in case due caution was exercised while discharging the duties on the part of the OP and the staff.

70. Again we are compelled to take in to consideration the version given by OP/DW-1 in Para-9 and according to him fall from the chair was the correct version because from the wheel chair the patient was shifted to ordinary chair. In such event as a prudent man forget being a prudent doctor this OP/DW-1 ought to have explained who brought him in the wheel chair and that too from what particular place and also he ought to have explained who shifted him from the wheel chair to the ordinary chair and how there could be fall in spite of the fact that he was being brought under the care of his staff.

71. Thus in the light of the said documentary evidence, we are bound to condemn irresponsible version given by this OP Doctor DW-1/OP in the cross-examination at Para-9.

72. Summing up we are to specifically hold that this OP/DW-1 was grossly negligent all along and the death was a direct cause of such negligence, for, in between intervention vide the said surgery was sincere attempt to save the life of this unlucky Venkatesh. Though surgery was uneventful as it did not result in any complications, we are to hold that, in spite of effort through the said surgery the said patient could not survive because severity of the injuries overpowered and we repeatedly observe that as the very OP got secured the said records vide Exhibits-D.4, P.26 and D.6 the same have binding effect on him. As such the OP/DW-1 is responsible and hence accountable to pay the compensation to these complainants who have been deprived-of the dependency. For, the deceased Venkatesh was the bread winner for the family.

73. In Para-4 of the affidavit evidence by way of examination-in-chief as noted above, this OP has stated that averments in Para-4 of the complaint might be partly true to the effect that the complainant’s husband was a mason by profession. Once it becomes an admitted fact without any hesitation we accept the plea of the complainants that, the deceased was earning Rs.500/- per day in as much as, as a Mason he was skilled labourer, and his such earning of Rs.500/- per day claimed by the complainants is not at all on higher side. In the in-patient card as issued by the OP the age of the deceased at the relevant time has been mentioned as 33 years. Furthermore in the very written version in Para-5 the very OP has contended that, the deceased was at the relevant time 33 years. We will take this 33 years to select the appropriate multiplier.

74. Both the parties have placed reliance on principles enunciated in AIR 2010 SC 1162 which we have noted quite above. In this citation there is one more citation referred and relied and the same is (2009) 6 SCC 121 Sarala Verma and others daily Delhi Transport Corporation and Another. And resultant effect of following the said principles would be that this forum is to determine the compensation by the very methodology as provided vide provisions of the Motor Vehicles Act, 1988. Therefore claim of the complainant for global compensation of Rs.10,00,000/- would become totally insignificant, for, the said method is bound to be adopted in awarding compensation. In the result the complainants are entitled to compensation on the following heads:-

For medical expenses of the deceased till his death.
For loss of dependency.
For loss of estate.
For loss of consortium.
And for funeral expenses.

Compensation vide count Nos.(iii) to (v) are on conventional basis.

(i) COMPENSATION FOR MEDICAL EXPENSES INCURRED:-

By going through the documentary evidence vide Exhibit-P.9 to P.25 the medical expenses would come to Rs.72,786.82 and we taken the same to the next round figure of Rs.72,800/-.

(ii) FOR LOSS OF DEPENDENCY:-

For the reasons noted above we have selected age of the deceased as 33 years at the relevant time. By following the principles enunciated in ILR 2002 KAR 2501 (2507) we reckon on the multiplier 15. Therefore compensation under this head of loss of dependency is worked out vide following equations:-

Rs.500/- X 30 = Rs.15,000/-

This would be the monthly income the deceased was earning. In this we will have to deduct 1/3^rd towards personal expenses of the deceased and hence loss of dependency per month would be Rs.10,000/-. So the total loss of dependency shall be,

Rs.10,000/- X 12 X 15 = Rs.18,00,000/-

This shall be the compensation we are bound to award to the complainants under this head.

(iii) COMPENSATION UNDER THE CONVENTIONAL COUNTS FOR LOSS OF ESTATE FOR LOSS OF CONSORTIUM & FUNERAL EXPENSES :-

With regard to loss of Estate and loss of Consortium we award compensation of Rs.5,000/- each and hence the same would come to Rs.10,000/-.

We award compensation of Rs.20,000/- on the count of Funeral Expenses. Thus compensation under these conventional heads would come to Rs.30,000/-

Therefore the grand total of compensation would come to Rs.19,02,800/-. We proceed to pass the following:-

:: ORDER ::

POINT 3:-

(01) For foregoing reasons the complaint stands allowed with costs of Rs.2,500/- against the OP as hereunder:-

(a) The OP shall pay compensation of Rs.19,02,800/- by way of depositing the same before this Forum to the complainants who shall share the same equally. And we grant time of 03 months to the OP to comply. Failing which, the said amount shall fetch interest at the rate of 6% per annum from 28.09.2015 being the date of the complaint till realization.

(b) By following the principles enunciated in ILR 1994 KAR 964, AIR 1993 (SC) 1256 and ILR 2000 KAR 2312 we are to direct that on receipt of the said deposit the complainant No.1 shall receive her 1/3^rd share in cash, whereas, the remaining 1/3^rd share of each of the said minor complainant Nos.2 and 3 shall stand deposited in any one of the Nationalized or Scheduled Banks to be opted by the complainant No.1, but necessarily to be within the jurisdiction of this forum. And such deposits shall be by way of FD up to three years even after attainment of majority on the part of minor complainant Nos.2 and 3”.

(c) The permission is granted to the complainant No.1 to receive admissible periodical interest during minority of the said minor complainant Nos.2 and 3 and thereafter the very said complainant Nos.2 and 3 shall receive such admissible interest by themselves.

(02) Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 30^th DAY OF JULY 2016)

MEMBER MEMBER PRESIDENT

ANNEXURES

1) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF COMPLAINANT:-

PW.1 :: Smt. Savitha.

2) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-

Exh.P.1:: Xerox copy of charge-sheet in C.C.No.50/2015 in Kolar Town P.S. Crime No.192/2013 submitted before PCJM, Kolar, consisting of 31 sheets.

Exh.P.2:: Office copy of legal notice dated: 20.06.2015.

Exh.P.3:: Postal acknowledgement.

Exh. P.4:: Reply dated: 21.07.2015 consisting of three sheets.

Exhs.P.5 to 7:: Three prescriptions dated: 25.07.2013, dated: nil,

dated: 25.07.2013 issued by R.L. Jalappa Hospital,

Kolar.

Exh.P.8:: Requisition Form issued by R.L. Jalappa Hospital, Kolar.

Exhs.P.9 to P.24:: Receipts issued on various dates by R.L. Jalappa

Hospital, Kolar, being 16 in number.

Exh.P.25:: Hospital Bill No.138467, dated: 26.07.2013 issued

by R.L. Jalappa Hospital, Kolar, consisting of two

sheets.

Exh.P.26:: Death summary MLC issued by R.J. Jalappa

Hospital, pertaining to deceased Venkatesh marked

during confrontation of DW.1.

3) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF OP:-

DW.1 :: Dr. G.Ganesh.

DW.2 :: Dr. Nataraj.B.

4) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF OP:-

Exh.D.1:: Certified copy of the deposition sheet of Smt. Savitha (complainant No.1 / PW-1 in the present case on hand) pertaining to C.C.No.50/2015 pending before the Principal Chief Judicial Magistrate, Kolar.

Exh.D.2:: The Kolar Pathrika dated: 26.07.2013 Kannada daily newspaper.

Exh.D.2(a):: The relevant news item published in this

document(Exh.D.2).

Exh.D.3:: The Sanchike dated: 12.12.2013 Kannada

daily newspaper.

Exh.D.3(a):: The relevant news item published in this

document(Exh.D.3).

Exh.D.4:: Case-sheet called for by DW.1 and received in this Forum dated: 29.03.2016 as produced by The R.L. Jalappa Hospital, Kolar, consisting of 42 sheets.

Exhs.D.5:: Statement in writing dated: 08.06.2016 submitted on behalf of R.L. Jalappa Hospital, Kolar, by Dr. Kiran J who was authorized.

Exhs.D.6:: Certified copy of C.T. of brain dated: 25.07.2013.

MEMBER MEMBER PRESIDENT

Karnataka

Kolar

CC/46/2015

Smt.Savita - Complainant(s)

Versus

Dr.G.Ganesh, - Opp.Party(s)

Sriyuth.V.Sridhar

30 Jul 2016

ORDER

PRESENT

CONSUMER COMPLAINT NO :: 46 OF 2015

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