Karnataka

Kolar

CC/25/2022

J.Srinivasa - Complainant(s)

Versus

Dr.Gangadhar - Opp.Party(s)

Sri.H.V.Subramani

29 Apr 2023

ORDER

Date of Filing: 14/06/2022

Date of Order: 29/04/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 29^thDAY OF APRIL 2023

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:25/2022

1. J. Srinivasa,

S/o Jaganappa,

Aged about 70 years,

 

2. Smt. M. Lakshmidevamma,

W/o Sri K. Srinivasa,

Aged about 67 years,

Both are R/at #1758,

Lakshmi Nilay,

K.H.B Quarters,

Vijayanagar,

Bangarpet Town.

 

3. C.S. Asha Devi

D/o J. Srinivasa,

W/o N. Srinivasaiah,

Aged about 46 years,

R/at Mavahalli Village & Post,

Kasaba Hobli,

Bangarpet Taluk.

 

4. C.S Kavitha Devi

D/o J. Srinivasa,

W/o G. Suresh Kumar,

Aged about 43 yearsm

R/at 1768, KHB quarters,

Shanthinagar,

Bangarpet.

(Rep. by Sri.H.V. Subramani, Advocate)            ….  Complainants.

 

 

- V/s –

 

 

1) Dr. Gangadhar,

Medical superintendent & Founder.

 

2) Dr. Rohith

Director,

 

3) Dr. Pradeep

Consultant intensivist,

 

4. Dr. Harsha

Consultant Radiologist,

 

5. Dr. Padmanna Negali

Patholigist,

 

6. Dr. Naveen

Consultant radiologist,

 

7. Dr. K. Niroop

Physician

 

Respondents No.1 to 7 are working

At Gurushree High Tech Multi

Speciality Hospital,

#1558, Opposite Chandra layout,

Vijayanagar,

Bengaluru – 560040.

(Rep. by Sri.J.R. Mohan, Advocate for OP No.1 to 7)        

 

8. Rajani

W/o Sanjay kiran,

D/o Siddaram. M. Uppare Major,

#1/2, 1^st cross,

1^st Main Road,

Kavika layout,

Bengaluru – 560026

(Rep. by Sri.Manu B.P, Advocate)                        …. Opposite Parties.

 

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1)     The complainants have filed this complaint petition Under Section 35 of the Consumer Protection Act, 2019 against the Ops alleging medical negligence and hence prays to award compensation of Rs.50,00,000/- and to pass such other reliefs as this commission deems fit to grant in the ends of justice and equity.

 

2)   The brief facts of the complaint is that, the complainants No.1 & 2 are the parents of the deceased one Sanjay Kiran C.S who was working in the private company as senior manager in the department of agency sales Bajaj Alliance Bengaluru and was drawing salary of Rs.41,646/- p.m.  It is stated that during the lifetime of the Sanjay Kiran C.S he was suffering from gastritis and hence he was taken to Gurushree Hi-Tech Multispecialty Hospital, Bengaluru and thereby consulted the casualty medical officer and narrated the facts about his ill-health.  The doctor of the OP hospital administered the medicine namely TEMABACT-1.5 without test dose as per the medical norms.  It is stated that after administrating of the above medicine within a fraction of second patient was fell down and become unconscious and thereafter he was shifted to ICU and kept him there for 4 days for further treatment without explaining as to why he was underwent unconscious.  Thereafter, on 08.12.2021 OPs hospital authorities have conducted the CT scan at Kanva Diagnostics Centre Nagarabhavi Bangalore and again on 09.12.2021 the hospital authorities send the patient for MRI hospital at Kanva Diagnostic center Nagarbhavi Bangalore and collected the reports from the above centers.  It is stated that the hospital authorities did not disclosed the CT scan and MRI Scan reports.    Further stated that on 10.12.2021 the doctor by name Rohit. R informed that condition of the patient was deteriorating and survival of the patient very less without giving any proper reasons.  It is stated that on the same day at about 2:35 p.m the doctors informed that the patient was dead and given improper reasons for occurrence of death.  Hence, the complainant alleged that due to medical negligence the said Sanjay Kiran was dead and hence this complaint. 

3)    On issuance of notice OP NO.1 to 7 appeared through their counsel and filed their version.  In the version it is contended that the complaint is false, baseless and there is no truth or substance in it and prays to dismiss the complaint in limine.  It is contended that the complaint is miss-joinder and non-joinder of necessary parties.  It is admitted as to that the said Sanjay Kiran informed to the complainant that he was suffering from gastritis accordingly said Sanjay Kiran approached to the OPs multispecialty hospital along with the complainants and the said doctor administered the TEMABACT-1.5 and thereafter the patient was fell down unconsciously and all these facts denied as false and contended that it is story created by the complainants for the purpose of making false claim against the OPs.  However, the OPs admitted the facts that patient was shifted to ICU and kept him for 4 days for further treatments.  It is contended that the OPs doctor informed the complainants about the medical treatment would be provided and   utmost care is taken for his recovery.  Further contended that and the day of admission i.e., on 07.12.2021 the relevant investigation was done and suitable medical treatment was provided.  It is contended that on 08.12.2021 MRI brain plain scanning was conducted at Kanva Diagnostic Centre and thereafter the patient was provided with necessary medical treatment by informing the complainant.  It is also admitted that on 10.12.2021 it is informed to the complainant that the condition of the patient is deteriorating and survival of the patient is very less.  Whereas the Ops denied the allegations that they have not disclosed the actual reason for unconscious of the patients and also contended the cause of the death has not been clearly mentioned the death certificate.  It is contended that on 10.12.2021 in the afternoon the relation of the patient was informed about the death of the patient and thereafter the dead body was handed over to the complainants along with the death summery.  It is denied as false that the complainants were requested for postmortem but the Ops never care but submitted that the complainants never asked for conducting postmortem and the complainants making all the false allegations.  It is also denied as false and incorrect that the ops doctor administrating the antibiotics and other medicines to Sanjay Kiran without following the protocol and medical norms.  It is contended that Ops have provided with all the necessary medical treatments to the patients by taking supportive and resuscitative and there has never been negligence on their part at any point of time.   However, it is contended that the complaint is filed with malafide intention for wrongful enrichment at the cost of the Ops and hence contended that the complaint is totally devoid of merits and suppressed the true material facts filed this complaint. 

4)     It is contended that on 07.12.2021 the patient by name Sanjay Kiran C.S came to the hospital along with his parents with the history of Nausea (vomiting sensation) vomiting, poor oral intake and generalized weakness since 3 days, a known case of chronic Type-II diabetes, mellitus and on examination found to be dehydrated.  The patient admitted to the ward with above symptoms on signs and thereon relevant investigations were done and treatment provided.  Further contended that abdomen and pelvis ultra-sonography (scanning) was conducted on the same day, the patient was diagnosed (I) Grade-I fatty lever (II) Gall-Bladder polyp (III) Chronic Calcific Pancreatitis (long-time inflammation of Pancreas) (IV) Umbilical Hernia and patient also had uncontrolled Type II diabetes.  It is submitted that the patient complained of sudden onset of heaviness in the head, itching followed by altered sensorium and immediately monitors connected resuscitative measures taken and the patient had one episode of convulsion and become unconscious. Resistive measures continued and immediately shifted to ICU with oxygen supplementation, I.V.Fluids (intra-venous fluids).  It is submitted that ICU ECG show decreased heart beat rate with HR: 36/min, injection Atropine 1cc given to treat the same and the patient was incubated and ventilated.  Further Inotropic (to increase the heart-beat) support started. Further submitted that the patient was provisionally diagnosed with severe shock, probably due to hypovolemia (liquid portion of the blood/plasma is too low) (causes of hypovolemia include vomiting, diarrhea, excessive internal bleeding which can lead to shock which is a life-threatening condition) or sepsis (infection), metabolic acidosis correction done.  Further submitted that CT scans abdomen and pelvis showed significant fatty infiltration of liver.  The features suggestive of chronic pancreatitis (inflammation of pancreas).  The patient was continued to be monitored in ICU with mechanical ventilation, inotropic support and cerebral (brain) protective measures.  GI bleeds (gastro-intestinal-bleed) and hematuria (blood in urine) was persistent.    Further submitted that during the course of treatment, the test dose of “TEMABACT” was given before administering the drug to the patient as he was suffering from severe infection.  It is relevant to note that the drug “TEMABACT 1.5 mg” is a brand-name and it is an anti-bacterial drug containing the substances called cefoperzone and sulbactam, which are used in the treatment of bacterial infections.  From the above, it is clear that all the protocol and medical norms were followed while treating the patient. 

 

5)     It is relevant to note at this juncture that the patient brought to the hospital on multiple occasions as well, and at that times, necessary medical treatments provided, however, on one such occasion, the patient got discharged against the medical advice.  It is submitted that on 20.01.2020 the patient came to the hospital with the history of nausea, vomiting after intake, abdominal discomfort since last night, and history of alcohol consumption, complained of giddiness and generalized weakness and type-II diabet4es.  He was admitted and the necessary treatment given and on the next day i.e., on 21.01.2020 the patient was discharged with medical advice.  It is further submitted that one month later, the patient again came to the hospital on 28.02.2020 with complaints of multiple episodes of vomiting with giddiness with generalized weakness, not tolerating orally, and history of excessive consumption of alcohol since one week. Accordingly, suitable treatments were given, however, on that very same day the patient got discharged against medical advice.  It is further submitted that the patient again came to the hospital on 26.08.2021 with the history of nausea and vomiting with blood stained associated with poor oral intake and generalized weakness since one day, and he also had chronic Type-II diabetes.  Accordingly, suitable treatment was given.  As the patient was suffering from severe infection, “TEMABACT” was given.  There was good improvement in his health condition however, on the next day i.e., on 27.08.2021 he was discharged against medical advice.  It is relevant to note that when two dose of the said drug “TEMABACT” was administered, the patient responded positively, and there was no adverse reaction.  It is submitted that the cause of the death has been clearly mentioned in the death summary, which reads as followed:

• Sepsis with shock
• Thrombocytopenia
• Gastro intestinal bleed
• Hypoxic ischemic encephalopathy
• Poorly controlled diabete3s mellitus

 

However, with a mala fide intention to cause loss, hardship and inconvenience to these Ops, the above complaint is filed making false and baseless averments  When this being so, it is utter false to state that the cause of death is due to administration of “TEMABACT”.  The complainants are put to strict proof of the same. 

 

6)      Further the Ops denied that the cause of death is due to administration of TEMABACT.  Further contended that Ops very good medical treatment and the necessary care was taken, however since the patient condition was very critical, the same cannot be blamed upon the hospital authorities alleging negligence and there is no negligence on the part of the Ops.  It is contended that the Ops has gained good name, fame and reputation, apart the hospital is a NABH Accredited hospital certified by National Accreditation Board for hospitals and health care providers, which shall give such certificates only when the hospitals provides standard treatment and equipped with the standard medical equipments and treatments.  On the above said grounds the ops contended that the complainants have filed the complaint by making false and baseless averments and there is no deficiency in service on the part of the OPs.  With these grounds ultimately Ops prays to dismiss the complaint with costs. 

7)    On the basis of the pleadings of the parties and the documents placed on record, the following points will do arise for our consideration:-

     1)  Whether the complainants proved there is negligence in treating the patient and it amounts to deficiency in service on the part of the OP?

     2)   Whether the complainants are entitled for the relief as prayed in the complaint?

     3)   What Order?

   

8)    Heard the arguments of both the parties and perused the affidavit placed on record.

9)     Our answers to the above points are as under:-

             POINT No. (1) & (2):-   Are in the negative.

             POINT No. (3):-           As per the final order

                                                For the following:-

 

             

                REASONS

 

POINT NO. (1) & (2):- These two points are interconnected to each other and hence taken up together for common discussion for the sake of convenience and to avoid repetition of discussion of facts.

 

10)     In order to prove the respect to case of the parties and both the parties filed their affidavit evidence along with supporting documents.   On perusal of the evidence placed on record it is an undisputed fact that one Sanjay Kiran C.S being a patient was approached to the Ops hospitals with the complaint of gastritis.   It is also not in dispute the Ops referred the patient for MRI scan and for CT scan.  Further it is not dispute after getting the reports the Complainant was also treated by the Ops hospital and also administered the injection TEMABACT 1.5.  It is also not in dispute the said Sanjay Kiran was shifted to ICU for 4 days for further management of the patient. 

The crux of the matter is to consider whether the death of the patient was due to administration of TEMABACT injection?

11)    In order to substantiate the case of the Complainants, the Complainant deposed in his affidavit evidence they have filed the complaint in order to seek the relief of award due to medical negligence caused by the doctors of the Ops hospital.   In the case of medical negligence the whole burden on the Complainants to establish and prove his case.  It is deposed that on 07.12.2021 his son suffering from sustained gastritis and hence they approached the Ops hospital and the doctor prescribed to administered the medicine namely TEMABACT 1.5 without test dose as per the medical norms and thereby patient was fell down and become unconscious and thereafter he was shifted to Ops hospital for further treatment without explaining as to why he has underwent unconscious.  

 

   Per-Contra Ops contended that averments made in the complaint and also in the evidence deposed that patient visited the OP hospital with the history of Nausea (Vomiting sensation), poor oral intake and generalized weakness since 3 days, a know case of chronic type-II diabetes mellitus and patient was admitted to ward with above symptoms and siecince thereafter relevant investigations were done and treatment provided.  Further deposed that the patient was diagnosed with the following (I) Great-I Fatty Lever; (II) Gall Bladder Polyp (small structural sac attached to the wall of the gall-bladder); (III) Chronic Calcific Pancreatitis (long –time inflammation of pancreas)and (IV) Umbilical Hernia.  The patient also had uncontrolled type-II diabetes.  Further deposed that the patient complained of sudden onset of heaviness in the head, itching followed by altered sensorium.  Immediately the monitors were connected and resuscitative measures taken.  The patient had one episode of convulsion and became unconscious.  The resuscitative measures continued and the patient was immediately shifted to ICU with oxygen supplementation, I.V. fluids.(intra-venous fluids).  Further deposed that the patient was provisionally diagnosed with severe shock, probably due to hypovolemia (liquid portion of the blood/plasma is too low) (causes of hypovolemia include vomiting, diarrhea, excessive internal bleeding which can lead to shock which is a life-threatening condition) or sepsis (infection), metabolic acidosis correction done. So also deposed that CT scan of abdomen and pelvis of the patient showed significant fatty infiltration of liver.  The features were suggestive of chronic pancreatitis (inflammation of pancreas).  The patient was continued to be monitored in ICU with mechanical ventilation, inotropic support and cerebral (brain) protective measures and all the above facts not denied by the complainants.  Further though the OPs admitted the fact about administrating the “TEMABACT” drug to the patient has he was suffering from severe infection and that drug is a brand name and it is an anti-bacterial drug containing the substances called cefoperzone and sulbactam, which are used in the treatment of bacterial infections and the said drug can never be a cause for the death of the patient, whereas complainant did not place any rebuttable evidence to falsify the contention of the OPs.  Ultimately to substantiate the case of the OPs provided the medical literature about the cefoperazone/ sulbactam, on perusal of the same in the literature the object is made clear that the clinical study was designed to evaluate the efficacy and safety of this therapy in the treatment of respiratory and urinary infections caused by ceftriaxone-resistant bacteria in comparison with the effect of cefoperzone/sulbactam on cefoperazone-resistant bacteria. In the above literature it is concluded that ceftriaxone/sulbactam is as effective and tolerated as cefoperazone/sulbactam for the treatment of intermediate and severe bacterial infections caused by resistant strains. However complainant did not produce any rebuttable evidence to the above medical literature and in absence of rebuttable evidence we agree with the literature produced by the OPs.  Further it made us to note that treatment of severe and serious bacterial infections such as respiratory tract infection, urinary tract infection, skin and soft tissue infection joint bone infection and bone infection, uterus bone infection, etc.  The TEMABACT 1.5gm injection used for the above said causes.

 

12)   It is noteworthy to mention that OP deposed in its evidence that the patient was visited the OPs hospitals on multiple occasions and he was provided with treatment.  Further on one such occasion he was discharged against medical advice.  Further deposed that patient came to the hospital on 20.01.2020 with the history of nausea, vomiting after intake, abdominal discomfort, history of alcohol consumption, complained of giddiness and generalized weakness and type-II diabetes, he was admitted and necessary treatment was given and on 21.01.2020 the patient was discharged with the medical advice as also seen from the documentary evidence that is R-12 & R-13.   Further one month later patient was again visited the hospital on 28.02.2020 with his wife Rajini.  As per Document No.1 & 2 dated 20.01.2020 and date of discharge is 21.01.2020 and dated 28.02.2020.  and as per the document No.3 patient was admitted on 26.08.2021 and discharged on 27.08.2021 and all these records discloses the history of the patients that the complainant was having multiple episodes of vomiting and giddiness with generalized weakness not tolerating orally, and history of excessive consumption of alcohol since one week and thereon suitable treatment were given. The above documents substantiate the contention of the OPs as per the medical history of the patient given by the OPs.  However the complainant did not denied the above facts specifically and also not stated anything in his complaint averments.  Further as per the evidence placed on record it made us to draw inference that the complainant was suffering from chronic type-II diabetes and with the history of nausea and vomiting with blood stained associated with poor oral intake and generalized weakness and as a result patient was suffering severe infection and as a duty towards patient OPs adopted to administering the TEMABACT injection and he was also observed in the ICU for 4 days that goes to establish that the death in question is not due to only after administrating the TEMABACT injection.  Whereas the complainant did not place any cogent evidence to establish that doctors are negligent in treating the patient.  On perusal of the entire complaint averments the only allegation of the complainants is that due to administration of TEMABACT injection patient was dead, and on the basis of the evidence placed by the OPs and in absence of the rebuttable evidence we cannot come to conclusion death in question due to TEMABACT injection.

13)    It is worth to mention that, that the complainant did not denied in their affidavit evidence that the patient was also treated on several occasion by the Op hospital and also not denied the fact that the patient was suffering from chronic type-II DIABETIC since long time.

 

14)     It is note worthy to mention that complainant did not examine any expert in the field to falsify the case of the OPs, in absence of the expert evidence we cannot rely on the mere saying of the complainant that the OPs are negligent.  The counsel for the OPs drawn our attention to the reported decision of  the Hon’ble supreme court (2009) 4 supreme court cases 705 in the case of INS Malhotra(MS) versus Dr. A. Kriplani it is held that statements made by the respondents doctors neither rebutted nor appellant leading evidence of any expert doctor.  In absence of the expert evidence the Hon’ble Apex court held that on facts, all the doctors who treated the patient were skilled and duly qualified specialist in their respective fields and tried their best to save the patient’s life and performed there provisional duties as a team and ultimately hold that no case of medical negligence or deficiency in service.  On studying the facts involved in the above decided case of the Hon’ble Apex court and the ratio of the above case   is aptly applicable to the facts involved in the present case on hand.  In this case also complainant did not examine medical expert in the field and failed to discharge his burden.  Further it is also made it clear in the famous case of Jacob Mathew case it is held that a doctor faced with an emergency “Ordinarily tries his best to redeem the patient out of his suffering.  He does not gain anything by acting with negligence or by omitting to do an act.  Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner of charged with or proceeded against criminally”.  Further observed that doctors in complicated cases have to take chance even if the rate of survival is low.  The professional should be held liable for his act or omission, if negligent is to make life safer and to eliminate the possibility of recurrence of negligence in future.  But, at the same time courts have to be extremely careful to ensure that unnecessarily professionals are no harassed or they will not be able to carry out their professional duties without fear.  And the decision and observation made in the above case it is a beacon to decide the present case on hand.

 

15)    In the light of above decisions of the Apex court the complainant failed to prove there is a negligence caused by the OPs doctor in treating the patient and further complainant did not examine any expert and also failed to discharge his burden to prove the case.  Accordingly we answer point 1 & 2 in the negative.

Point No. (3):- On the basis of the answering Point (1) & (2) and the orders thereon we proceed to pass the following:-

                                      ORDER

1. The complaint is hereby dismissed. No order as to cost.
2. Send a copy of this order to all the parties to the proceedings at free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 29^th DAY OF APRIL 2023)

 

 

 

   LADY MEMBER                   PRESIDENT