BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 28^th November 2014

PRESENT

         SMT. ASHA SHETTY           :   HON’BLE PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER                                        

COMPLAINT NO.07/2010

Mrs.Jyothi,

Do. Sundara Saralaya,

Aged about 38 years,

Sriram Nilaya, Srirampet,

Sullia Taluk,

Dakshina Kannada.                                                 …….. COMPLAINANT

(Advocate for Complainant: Sri. Chandrashekhara N.G.)

          VERSUS

1. Dr.G.K. Hebbar,

Consultant ENT Surgeon,

ENT Solution Centre,

Sanjeevini, West Gate Pride,

Opp: Bharath Petrol Pump,

Falnir Road, Mangalore.

2. The Medical Officer,

Vinaya Hospital & Research Centre,

(A Unit of Karnataka Institute of Medical Sciences),

Post Box No.717, Karangalpady,

Mangalore.

3. Dr.Vishnu Kaniyur,

Professor Emrtitus A.J.I.M.S.,

Somayaaji House,

Bunts Hostel Road,

Mangalore, Dakshina Kannada.

4. Audiologist,

Guild of Service Speach and Hearing Centre,

Near Mahalingeshwara Temple,

Pandeshwara, Mangalore,

Dakshina Kannada.

5. The Oriental Insurance Company Limited,

Beauty Plaza, Balmatta Road,

Mangalore – 575 001.                                           ……OPPOSITE PARTIES

(Advocate for Opposite Party No.1 & 2: Sri Deenanath Shetty)

(Advocate for Opposite Party No.3 & 4: Sri K.S.Udayanarayana)

(Advocate for Opposite Party No.5: Sri Shrikanta Shetty K)

 ***********

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. This complaint is filed under Section 12 of the Consumer Protection Act alleging medical negligence against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

          The Complainant stated that, she is a house wife with good healthy person.  In the month of October 2008, when she was suffering from loss of hearing problem in her right ear consulted ENT specialist in Puttur on 16.10.2008.  As per his advice undergone the audiological test and speech language pathology in K.M.C. Hospital, Mangalore.  The test result showed the indication of middle ear pathology in the right ear.  That test interpreted and recommended severe conductive hearing loss with BC notch at 2 KHz.  The doctor advised to undergo stepadectomy surgery and referred her to 1^st Opposite Party in Mangalore.  On 07.04.2009, the Complainant consulted 1^st Opposite Party and undergone audiogram test in 4^th Opposite Party in Mangalore.  The test result showed the right ear moderate conductive hearing loss and 1^st Opposite Party advised her to undergo Tympanoplasty surgery under local Anaesthesia. Thereafter, the Complainant admitted in 2^nd Opposite Party hospital in Mangalore on 22.04.2009 and the 1^st Opposite Party treated the Complainant through the surgery of Type 1 Tympanoplasty right ear on 23.04.2009 and the Complainant discharged on 24.04.2009.  As per the advice of the 1^st Opposite Party, the Complainant consulted 1^st Opposite Party after 15 days from the date of surgery but she has not found any hearing improvements, again consulted him three times likewise six months lapsed, the hearing loss will continued and hence the Complainant consulted 3^rd Opposite Party in Mangalore on 17.10.2009 and undergone audiogram test in 4^th Opposite Party and the test result showed the right ear severe to profound mixed hearing loss and hence the 3^rd Opposite Party advised to undergo Tymponamastoidely surgery and for that referred again to 1^st Opposite Party.  It is stated that, 3^rd Opposite Party knowing the fact that the earlier surgery conducted by the 1^st Opposite Party, once again referred the Complainant to undergo similar surgery.  It is stated that, the surgery conducted by the 1^st Opposite Party, nothing hearing improvements effected in any range and all the audiogram test reports shows the similar position of hearing loss.  It is stated that, the 1^st and 2^nd Opposite Party conducted surgery in order to improve the hearing but instead of improve it decreased in high range and the Complainant totally lost her hearing capacity due to negligence surgery conducted by the Opposite Parties and contended that the Opposite Parties committed deficiency in service while treating the Complainant, as a result, the Complainant suffering from hearing loss and also suffered financial loss.  Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to repay the total expenses incurred towards surgery with 12% interest, Rs.4,305/- towards hospitalization bill, Rs.10,000/- towards operation charges, Rs.3,292/- towards clinical examinations, medical bills, Rs.10,000/- towards other expenses, Rs.3,00,000/- as compensation and Rs.5,000/- as cost of the proceedings.

II.    Version notice served to the Opposite Parties by R.P.A.D.  Opposite Parties appeared through their counsel, Opposite Party No.1 and 2 filed common version, Opposite Party No.3, 4 and 5 filed separate version. 

Opposite Party No.1 and 2 stated that, there is no negligence on the part of the Opposite Parties and denied the allegations alleged in the complaint and stated that, they have performed the surgery with utmost care and diligence, competence and skill as is reasonably expected of a surgeon.  The Opposite Party No.1 made a confirmed diagnosis and accordingly advised the Complainant to undergo Tympanoplasty i.e., the surgical procedure to repair the hearing mechanism of the middle ear it consists of repair of the ear drum and or repositioning of the tiny bones of the middle ear to treat hearing loss.  The Complainant was admitted to Opposite Party No.2 hospital, the relevant investigation made and consent was obtained and the risks were explained to the Complainant before surgery and the Complainant was consented for the surgery and after the surgery, discharged from the hospital and the Opposite Party No.1 prescribed the medicine and after elapse of two months from the surgery, the examination of her right ear found a tiny residual defect at the site of graft and told her to wait some more time and asked the Complainant to take due diligence to prevent the infection and after that, the Complainant did not approach the Opposite Party No.1 i.e. 24.06.2009.  It is stated that, the perforation if small will sometimes heals spontaneously.  If large it can persist and then is known as a permanent perforation.  Such perforation will not generally heal spontaneously and the infecting organism is very virulent or if the disease is long standing, it can damage the middle ear bones.  It is stated that, once the patients have reached the permanent perforation stage medical measures are not enough to give a permanent relief.  Hence the patients are advised to undergo tympanoplasty microear surgery.  It is stated that, once the graft is placed it requires not less than six to eight weeks for the graft to get properly vascularized and hence the Complainant was called subsequent to the elapse of eight weeks for the purpose of cleaning the residuary gel foam in the right ear.  The causes of graft failure could be due to various factors.  In order for the graft to heal it must remain in contact with organic matrix or stroma be free from infection and not experience shearing forces or excessive tension and stated that the Opposite Parties have taken due care but the Complainant did not approached the Opposite Parties despite being exhorted or strongly advised by him to approach him subsequent to the elapse of four months but the Complainant not approached.  There is no negligence or deficiency of service while treating the Complainant in this case and sought for dismissal of the complaint. 

Opposite Party No.3 stated that, this Opposite Party has examined on 17.10.2009 and after examination, she was advised to undergo Tympano mastoidectomy operation to make the ear safer from repeated infection.  The Complainant was informed that improvement of hearing was unlikely and this Opposite Party has referred the Complainant to the 1^st Opposite Party because who did the operation to the Complainant and will be knowing the patient better and there is no negligence whatsoever on behalf of the Opposite Party No.3 and prayed for dismissal of the complaint.

Opposite Party No.4 is only an audiologist and not a doctor and given the report and there is no negligence whatsoever and hence sought for dismissal of the complaint.

As far as Opposite Party No.5 is concerned, stated that this Opposite Party is the insurer of Dr.N.Gopalkrishna Hebbar under the policy No.422200/48/2010/ 3122 and the policy was governed by terms and conditions and the Opposite Party No.1 is not negligent and sought for dismissal of the complaint.

III.     In support of the complaint, Mrs.Jyothi (CW1) - Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served by the Opposite Parties.  The Complainant has produced 20 documents as listed in the annexure.  One Dr.G.K.Hebbar (RW1) - Opposite Party No.1, Dr.Vishnu Kaniyur (RW2) - Opposite Party No.3 filed counter affidavits and answered the interrogatories served by the Complainant.  One Dr.Sathish Bhandary (RW3) and Dr.Dattatreya (RW4) – summoned witnesses of the Opposite Party No.1 and 2 were examined and cross-examined by the learned counsel for the parties.  Opposite Party No.5 has produced two documents as listed in the annexure.    The Complainant as well as Opposite Parties produced notes of arguments along with citations. 

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Parties are guilty of medical negligence which amounts to deficiency in service and consequently liable to pay damages to the Complainant? 

2. What order?

                We have considered the oral/written arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                          Point No.(i): Negative.

                         Point No.(ii): As per the final order.

Reasons

IV.  Point No.(i) and (ii):

In the instant case, the facts which are admitted is that, the Complainant in the month of October 2008 consulted ENT specialist in Puttur of Dakshina Kannada District on 16.10.2008.  As per his advice, the audiology test in K.M.C. Hospital, Mangalore was done and the test report revealed conductive hearing loss with BC notch at 2KHz and the doctor advised to undergo stepadectomy surgery and thereafter the Complainant consulted 1^st Opposite Party in Mangalore and as per his advice undergone audiogram test and advised her to undergo Tympanoplasty surgery and thereby admitted to 2^nd Opposite Party hospital on 22.04.2009 and undergone surgery of Type 1 Tympanoplasty right ear on 23.04.2009 and discharged on 24.04.2009 (as per document No.5 produced by the Complainant). 

Now the points are in dispute between the parties before this Fora is that, according to the Complainant even after Tympanoplasty surgery done by the 1^st Opposite Party the hearing loss not improved and the hearing capacity is highly decreased than the position of prior to the aforesaid surgeries.  It is further alleged that, the 1^st and 2^nd Opposite Party conducted surgery in order to improve the hearing but instead of improve it decreased in high range and which cannot be improved in future and the Complainant totally lost her hearing capacity and alleged that due to reckless and negligence surgery conducted by the Opposite Parties, she had lost her hearing.  Hence came up with this complaint.

The Opposite Parties on the other hand contended that, there is no negligence whatsoever, they have conducted the surgery with due diligence and care and there is no negligence whatsoever.

On perusal of the oral as well as documentary evidence available on record, in a case of medical negligence, the primary onus lies or shifts upon the Complainant to prove it.  The basic principles relating to medical negligence is known as the Bolam Rule.  This was laid down in the judgement of Justice McNair in Bolam versus Friern Hospital Management Committee, which reads as follows:-

“…………… where you get a situation which involves the use of

 some special skill or competence, then the test as to whether there

has been negligence or not is not the test of the man on the top of

a Clapham omnibus because he has not got this special skill.  The                   

test is the standard of the ordinary skilled man exercising and       

professing to have that special skill”. 

A man need not possess the highest expert skill; it is well established law that, it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.  The Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case.  From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession.  He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field.  The doctor should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill.  The doctor should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert.  The standard is that of the reasonable average.  The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.

          In the instant case, we must consider the relma of diagnosis and the treatment given to the Complainant is that, is there any lack of standard of care?  Simply because the Complainant has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of res-ipsa-loquitar.  No sensible professional would intentionally commit an act or omission which would result in harass or injury to the patient since the professional reputation of the profession would be at stake.  A single failure must cause him value in his lapse. Even in the present case, the Complainant of course undergone Type 1 Tympanoplasty surgery for right ear by the 1^st Opposite Party in 2^nd Opposite Party hospital.  But in the instant case, before the surgery, the Opposite Party No.1 subjected the Complainant for diagnosis and the diagnosis confirmed tympanic membrane is bulging, reddish and sometime pulsatiliet may resolve or lead to perforation.  Since the Complainant had a chronic, presence with continuous discharge of pus and there is a whole in the tympanic membrane, the Opposite Party No.1 advised the Complainant to undergo Tympanoplasty that means, surgical procedure to repair the hearing mechanism of the middle ear it consists of repair of the ear drum and repositioning of the timely bones of the middle ear to treat hearing loss.  In the instant case, on 22.04.2009 the Complainant admitted to Opposite Party No.2 hospital, relevant investigation was made by Opposite Party No.1 and on 23.04.2009 the Complainant was undergone Tympanoplasty i.e., microscopic surgery.  The Opposite Party No.1 performed surgery and also prescribed drugs and administered injection which could be seen from the chronologically maintained hospital records and the Opposite Party No.2 also checked the vitals of the Complainant on regular basis and many tests were conducted and after the surgery, she was discharged from the hospital on 24.04.2009 with an advice to approach Opposite Party No.1.  Further 01.05.2009 the sutures were removed and the merocel pack was also removed and Opposite Party No.1 prescribed certain medications.  However, the above disease is porn to infections while taking bath or some other cause that could cause the entry of micro-organism to her ear canal resulting in infection. 

          Even in the instant case, an audiogram test was conducted and both conductive and sensorineural components are measured and floated on a graph and each ear is measured separately and documented.  After going through the medical records as well as the medical authority, reveals that the perforation if small will sometimes heal spontaneously, if large it can persist then is known as permanent perforation.  But in the instant case, the Complainant was suffering from permanent perforation and in order to treat the disease, the Opposite Party suggested Tympanoplasty surgery.  There is no material evidence to prove that the Opposite Parties are below the standard of professional skill or otherwise.  There is no expert opinion to substantiate the allegations alleged in the complaint.  Just because the Complainant has not responded to a treatment given by a doctor, the Opposite Parties cannot be held straight away liable for medical negligence by applying the doctrine of res-ipsa-loquitar.  Here, there is no such piece of evidence available on record to prove the negligence on the part of the Opposite Parties.  Since there is no expert opinion to determine the medical negligence, we are declined to hold that the Opposite Parties are committed negligence or the service rendered by all the Opposite Parties are deficient.  In the absence of any cogent / material evidence, we hold that the complaint has no merits, deserves to be dismissed.  No order as to costs.                                                  

6.       In the result, we pass the following:  

ORDER

The complaint is dismissed.  No order as to costs.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 11 dictated to the Sheristedar typed by her, revised and pronounced in the open court on this the 28^th day of November 2014)

    PRESIDENT                                                            MEMBER                       

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mrs.Jyothi – Complainant.

Documents produced on behalf of the Complainant:

Doc.No.1 – 16.10.2008: Letter of Dr.Rammohan.

Doc.No.2 – 28.10.2008: Audiological findings.

Doc.No.3 -  07.04.2009: Letter of Dr.G.K.Hebbar.

Doc.No.4 – 07.04.2009: Audiogram report.

Doc.No.5 – 22.04.2009: Discharge summary.

Doc.No.6 – 17.10.2009: Letter of Dr.Vishnu Kaniyur.

Doc. No.7 – 17.10.2009: Audiogram report.

Doc. No.8 – 22.04.2009: Hospital bill.

Doc. No.9 – 24.04.2009: Operation charges bill.

Doc. No.10 to 19 – Medicine bills.

Doc. No.20 – Admission record, treatment chart, doctor’s record, nurses

                    record, graphic chart, lab charges, consent form, etc.

                                  Witnesses examined on behalf of the Opposite Parties:

              RW-1 - Dr.G.K.Hebbar - Opposite Party No.1.

 RW-2 - Dr.Vishnu Kaniyur - Opposite Party No.3.

 RW-3 - Dr.Sathish Bhandary - summoned witness of the Opposite Party No.1 & 2.

 RW-4 - Dr.Dattatreya - summoned witness of the Opposite Party No.1 & 2.

              Documents produced on behalf of the Opposite Parties:

 Doc. No.1 – Professional Indemnity-doctors policy schedule No.422200/48/

                   2010/3122.

 Doc. No.2 – Professional Indemnity-doctors policy schedule No.422200/48/

                   2009/2974.

                  Dated:28-11-2014                                                  PRESIDENT