SMT. RAVI SUSHA  : PRESIDENT

         Complainant  has filed this complaint  U/S 12 of Consumer Protection Act 1986 seeking to get an order directing  opposite parties  to pay an amount of Rs.7,50,000/-  to the complainant   towards compensation together  with cost of the proceedings,  alleging  deficiency in service and negligence  on the part of  opposite parties.

   The case of the complainant is that   on 12/11/2014 at around mid night due to severe stomach ache, complainant’s father taken him to the casualty of  3^rd OP hospital, the doctor on night duty examined him and gave some injections on both of the hands and right buttock and advised him to consult urologist on next day as it is a suspected case of kidney stone and send him  back to his house.  Complainant  submits that on next day morning  on 13/11/2014 he felt his stomach  pain  reduced but started having pain on his right buttock and as per the doctor’s advise the complainant was brought to 1^st OP and after examining the complainant  asked to have his blood and urine tested.  After getting  test report 1^st OP prescribed some medicine and advised him to go  home and review after a week.  Complainant  submits that even though there was a variation of WBC in the test report ,1^st OP neglected  it and have not done anything to being it normal. On 14//11/2014 by evening the pain on the  right buttock increased and also had fever with shivering. So the next day the complainant was again brought to 1^st OP   and as he was not examining outpatients on that day, he examined the complainant at the room next to operation  theatre and gave some antibiotics medicines for the pain and send him back  home. Even after having the medicines prescribed by 1^st OP the pain and fever persisted  and the health  condition  became very weak. On 18/11/2014  the complainant was brought  to the hospital and they referred the case to department of medicine.  There the complainant  was examined by 2^nd OP and he asked to admit the complainant  in the hospital for further treatment.  Under the treatment of 2^nd OP, the complainant  got slight relief from fever, but the  pain on his buttock persisted and unbearable. Even though the complainant informed several times to 2^nd OP about the pain, he did not examined it properly and after one week of treatment 2^nd OP suggested  a born marrow test saying that  it can be  done only after two days and will take another week to get its result.  Since the pain on his right buttock was unbearable and fever persisted, the complainant thought that he could not bear it anymore and requested 2^nd OP to discharge him  and  decided to go to a higher center and thus he got discharged from 3^rd OP hospital.  Then he contacted the  doctor at KMC hospital Mangalore and the doctors at KMC hospital examined  thoroughly and diagnosed that there was right gluteal abscess(E. Coli Inf) and he was advised to get admitted there for further treatment.  It was  revealed  in the examination of the doctors at KMC hospital that the injection given to his right buttock at OP hospital caused  infection and collection of  white cell in blood(Leucocytes)  developed in that region and it radiated to the leg,  and the complainant further submits that  he was treated as inpatient  in KMC hospital for 10 days and got relief from fever completely, incision and drainage was performed at  the gluteous region and after  this procedure the while cell count in his blood started reducing and was adv iced to continue antibiotics and regular dressing and discharged  from the hospital on 5/12/2014,  the complainant  submits that since the wound on his right buttock was so deep that the complainant continued  medication, regular dressing and review examination at KMC hospital till April 29015 and though he has been healed completely, he still gets pain in  that area occasionally.  It is stated that  he had to suffer huge mental agony and physical pain due to  negligence and careless treatment by OPs 1&2, complainant is entitled to compensation.  The complainant had sent registered lawyer notice to the OPs, OPs 1&2  sent  reply contending false and  incorrect statements and  3^rd OP has not sent  any reply.  Hence the complaint.

      After receiving notices  opposite parties  entered appearance and filed  their versions.  OPs 1&2 filed joint version stating that the complainant was brought to the casualty  in the  3^rd OP hospital with complaints of acute abdominal pain on 12/11/2014 after taking first aid.  He was  attended  by the  casualty  Medical officer and  given symptomatic treatment and advised urology consultation.  On 13/11/2014 1^st OP  examined the complainant  in the urology OPD and prescribed appropriate oral medicines.  On 14/11/2014 complainant again consulted 1^st OP with investigation reports and after examination he was asked to continue the  prescribed medicines and he was  symptomatically better. The  1^st OP advised for a review after one week or earlier in case of recurrence of symptoms  but the complainant did not turn up to consult him and lost follow up with the first  OP.  OPs further submitted that on 18/11/2014, the complainant came to  the  medicine  out patient department of  3^rd OP hospital with a complaints of high grade fever  with  rigor and chills, vomiting  and generalised body ache.  Clinical  examination did not reveal any significant findings apart from fever.  The complainant also brought an ultra sonogram report  done on 14/11/2014 which showed renal calculi.  The investigations advised on 18/11/2014  showed polymorphoneclear  leucocytosis and ESR of 37 and in view of investigation findings and USG report, the cause of fever with rigor and chills was provisionally diagnosed as due to  upper urinary tract infection with sepsis and he was admitted to the hospital.  As routinely done in the management of short febrile illness, the complainant was also advised standard baseline investigations including liver function test, renal function test, renal function, peripheral smear, blood widal and malarial parasite card test etc.  Based on investigation and clinical examination  findings the complainant was started  on broad spectrum antibiotics(cefoparazone+ sulbactum) which is sensitive to uro-pathogens including E-coli. In response to treatment fever subsided and later he had  developed smaller  spikes of fever.  In view of continuing  spikes of low grade fever  the complainant and  bystanders were informed about the  need for  advanced investigations and blood culture and sensitivity,  Dengue 1gm elisa, Lepto 1gm elisa  tst were conducted.  The  complainant complained  about  pain in the gluteal region only on 21/11/2014 for the first time and after  examination the possibility of occult  abscess was considered and informed the complainant and bystanders. Since the patient was  already on antibiotics, possibility of regression of an occult abscess was also explained to them.  On 22/112014 complainant and his relatives requested for discharge and accordingly got discharged against  medical advice.  The complainant was treated in the 3^rd OP hospital in strict  regard to accepted  medical practice and protocol on the basis of proper diagnosis.  The complainant  developed pain in gluteal region only on  21/11/2014 due to formation abscess secondary to local infection which is not attributable to injection  taken for some other disease.  From the complaint  averments it is learned that after getting  discharge from the  3^rd OP hospital at  request, the complainant remained medically unattended for two days despite having occult abscess and discontinuation of antibiotics might have contributed to progression of inflammation leading to abscess formation.  The occurrence of cellulites or abscess or abscess in human body is secondary to local infection and hardly attributed to the mode of injection taken for  some other disease.  In any case right gluteal abscess caused to the complainant was not due to any act or omission  on the part of  these  OPs.   Ops 1&2 sent reply to the  complainant’s lawyer notice refuting his contentions and explaining the actual facts pertaining to his contentions and explaining the actual facts of treatment at the 3^rd OP hospital.  Ops submitted that  the 1^st OP is having qualification of   MS,DNB Urology with experience of four years as a consultant Urologist.  The 2^nd OP is having qualification  of MD General Medicine with experience of  19 years as a consultant  physician.   The OPs 1&2 attended and treated the complainant with due  diligence and care as per protocol and there was no negligence or deficiency in service  on their part and hence  they are not liable to compensate  the complainant.  Hence prayed for the dismissal of the complaint.

   OP.NO.3 filed separate version.  The contention of 3^rd OP is more or less same as that of OPs 1&2.  OPs  1to 3 contended that the OPs 1&*2 attended and treated the complainant with due diligence and care as per medical protocol and there was no negligence or deficiency in service on  their part and hence they are not liable to  pay compensation to the complainant.

    At the evidence stage, complainant has filed his proof affidavit and documents.  He has been examined as PW1 and marked the documents as Exts.A1 to A9.  On the side of OPs, 1^st OP has filed his chief affidavit and has been examined  as DW1.  3^rd OP filed affidavit and was examined as DW2 and marked Ext.B1.

   After that both learned counsels of the parties, filed their written argument notes.  The learned counsel of OP also made oral argument and submitted decisions of Apex court.

  The allegations raised by the complainant are that when he came  to the casualty of  3^rd OP hospital on 12/11/2014 at around mid night due to severe stomach ache, the doctor on night duty examined him and gave some injections on both of the hands and right buttock and advised him to consult urologist on next day.  Complainant further submits that on next day morning  on 13/11/2014 he felt his stomach  pain  reduced but started having pain on his right buttock.  It is alleged that though he complaint about the said pain to 1^st OP, after examining the complainant  asked to have his blood and urine tested.  After getting  test report 1^st OP prescribed some medicine and advised him to go  home and review after a week. It is further alleged that even though there is variation of WBC in the test report ,1^st OP neglected  it and have not done anything to being it in normal.  Further submitted that though 2^nd OP had treated the complainant from 18/11/2014, the pain on his buttock persisted.  Complainant alleged that though he informed several times to 2^nd OP about the pain, he did not examined it properly and after one week of treatment 2^nd OP suggested  a born marrow test.  Complainant pleaded that the injection given to his right buttock at OP hospital caused  infection and collection of  white cell in blood developed in that region and it radiated to the leg, which   was caused due to the negligence and careless treatment by OPs 1&2.

      On the other hand OPs contended that the complainant was brought to the casualty  in the  3^rd OP hospital with complaints of acute abdominal pain on 12/11/2014 after taking first aid and injections from a local hospital.  Further submitted that he was attended by the  casualty  Medical officer and  given symptomatic treatment and advised urology consultation.  On 13/11/2014 1^st OP  examined the complainant and prescribed appropriate oral medicines.  On 14/11/2014 complainant again consulted 1^st OP with investigation reports and after examination he was asked to continue the  prescribed medicines and he was  symptomatically better.  OPs  contended that  1^st OP advised for a review after one week  but the complainant did not turn up to consult him and lost follow up with the first  OP.  OPs further submitted that after 14/11/2014, the patient came to  the  medicine  out patient department of  3^rd OP hospital on 18/11/2014 with complaints of high grade fever  with  rigor and chills, vomiting  and generalised body ache.  Clinical  examination did not reveal any significant findings apart from fever.  The complainant also brought an ultra sonogram report  done on 14/11/2014 which showed renal calculi.  The investigations advised showed polymorphoneclear  leucocytosis and ESR of 37 and in view of investigation findings and USG report, the cause of fever with rigor and chills was provisionally diagnosed as due to  upper urinary tract infection with sepsis and he was admitted to the hospital.  As routinely done in the management of short febrile illness, the complainant was also advised standard baseline investigations including liver function test, renal function test, renal function, peripheral smear, blood widal and malarial parasite card test etc.  Based on investigation and clinical examination  findings the complainant was started  on broad spectrum antibiotics.  The  complainant complained  about  pain in the gluteal region only on 21/11/2014 for the first time and after  examination the possibility of occult  abscess was considered and informed the complainant and bystanders. Since the patient was  already on antibiotics, possibility of regression of an occult abscess was also explained to them.  On 22/112014 complainant and his relatives requested for discharge and accordingly got discharged against  medical advice.  The complainant was treated in the 3^rd OP hospital in strict  regard to accepted  medical practice and protocol on the basis of proper diagnosis.  The OPs 1&2 attended and treated the complainant with due  diligence and care as per protocol and there was no negligence or deficiency in service  on their part .

   The question to be decided in this case (1) whether there is  suppression of facts from the side of complainant?(2) whether complainant succeeded in proving medical negligence of OPs.

Point No.1:- The learned counsel of OPs submitted that the complainant is supposed to come  before the commission with clean hands.  He is bound to submit true facts.  It is  argued by the  learned counsel that  in Ext.A5 discharge summary issued from KMC Hospital, under “present complaint” “ Patient gives history of visiting a local hospital for abdominal pain  for which certain injections were given in  arm& buttock, subsequently, he developed fever for which he was admitted elsewhere and treated with IV antibiotics, but fever persisted and hence patient came here”.

   It is submitted that during the cross-examination complainant deposed that “ OP.3 സ്ഥാപനത്തിൽ 12/11/2014 ആണ് ആദ്യമായി ഞാൻ ചികിത്സയ്ക്ക് പോയത്.  അന്നാണ് എനിക്ക്  injection എടുത്തത്. Learned counsel  of OP submitted that from the discharge summary it is clear that  he had approached and obtained first aid treatment  and injection from other local hospital prior to the admission to the 3^rd OP hospital.

   With regard to this point, it is a normal thing that history of treatment will be given by the patient himself/herself.  Here in Ext.A5, it is stated that “ the patient gives history of visiting a local hospital for abdominal pain  for which certain injections were given in  arm& buttock”.  Hence from the said fact it is evident that complainant had taken first aid and injections from a local hospital than 3^rd OP hospital.

  Next, complainant alleged that he has  felt pain on his right buttock from 13/11/2014 itself  and informed to 1^st OP.  On the other hand 1^st OP contended that complainant reported  pain in his buttock only on 21/11/2014.  The learned counsel of OPs submitted that if complainant had complaint of  buttock pain on 13/11/2014 or 14/11/2014, it would have been included in the prescription  Exts.A1&A2 issued  on that day.  On perusal of Ext.A1 dtd 13/11/2014 it is seen in the portion of c/o pain in (Lt) iliac region since today evening h/o vomiting -1episode.  Past history+ h/o renal calculi 1 year back.  On perusal of advise given in Ext.A1, one IM startup injection was advised along with IV.at 1 a.m on 13/11/2014.  That does not mean that the IM start injection was given at  the right buttock of  the complainant ,IM start injection  can be  given either  at  angle region or gluteal region .  The  complainant alleged that the said injection was given by the doctor on night  duty on that date.  Here the complainant has not tried to prove the said point by examining the night duty doctor on the particular day.  Moreover OPs  contended that it is improbable that  an  intra muscular injection develops injection  abscess  within  a few hours due to the same on a person.  1^st OP(DW1) deposed that for developing  infection due to injection will normally take 7-10 days.  DW1 categorically deposed that the WBC count will not raise just after taking injection and also stated that raise in WBC count can be happened either due to infection or due to other disease in the body.

   These points are to be  proved through medical evidence.  Onus to prove lies upon the complainant.  But there is no expert evidence available before us.

   On perusal of Ext.A2 dtd.13/11/2014 also we cannot see that the complainant had not complaint about pain at the buttock region to 1^st OP Complaint noted is(L) flank pain and advised review with USG with KUB.

  Here neither the complainant nor 1^st OP has a case that 1^st OP had treated the patient after 14/11/2014 and also the injection at the gluental region  of complainant was  taken by  1^st OP.  From the medical records it is evident that 1^st OP had given treatment  for kidney stone by giving oral medicine on 13/11/2014.  There is no medical records to show that complainant was brought to 1^st OP with complaint of pain at the buttock and also had fever with shivering.  From Exts.A1&A2, it is  revealed that giving  by the history of complaints, clinical examinations, advise given, prescription of  medicines by 1^st OP was  correct or justified.  In discarding  the said fact, there is no medical record or expert opinion available before us. 

   Next point whether 2^nd OP was  right in  clinical examination, diagnosing  and  providing  treatment to the complainant.

   It is an admitted fact that after 14/11/2014 complainant was brought to the 3^rd OP hospital on 18/11/2014 and referred to department of medicine.  Further the complainant was examined by 2^nd OP and asked  to admit in the  hospital.  Further admitted that the  complainant was  under the  treatment of 2^nd OP as inpatient  from 18/11/2014 to 22/112014.

   Complainant alleged that under the treatment of 2^nd OP, he felt slight relief from fever, but the pain on his buttock persisted and became  unbearable.  It is further alleged that even though complainant asked 2^nd OP several times about the pain on his buttock, he neglected it and did not  examined it  properly and suggested a born marrow test.

     Here 2^nd OP totally denied the said allegations of the complainant. It is stated  by 2^nd OP that “ on 18/11/2014 the complainant  was brought to the department of medicine with only complaints  of high grade fever with rigor and chills, vomiting and generalized body ache and he did not have complaint of pain on buttock. Further the statement that the complainant  complained  about  pain on buttock to the  2^nd OP several times and he neglected  the same and informed the complainant that pain will be reduced after settling body temperature is false and denied by 2^ndOP. The averment that the 2^nd OP suggested bone marrow test is falsely stated.  The complainant was advised advanced investigations in view of continuing  spikes of low grade fever which included blood C&S, Dengue 1gm elisa, Lepto 1gm elisa.”.  2^nd OP pleaded that complainant complained  about  pain in the gluteal region only on 21/11/2014 for the first time and after  examination the possibility of occult  abscess was considered and informed the complainant and bystanders.  Further stated that since the patient was  already on antibiotics, possibility of regression of an occult abscess was also explained to them.  But on the next day 22/112014 complainant and his relatives requested for discharge and accordingly got discharged against  medical advice.  2^nd OP pleaded that the complainant was treated in the 3^rd OP hospital in strict  regard to accepted  medical practice and protocol on the basis of proper diagnosis.  Further submitted that  the complainant  developed pain in gluteal region only on  21/11/2014 due to formation abscess secondary to local infection which is not attributable to injection  taken for some other disease.  From the complaint  averments it is learned that after getting  discharge from the  3^rd OP hospital at  request, the complainant remained medically unattended for two days despite having occult abscess and discontinuation of antibiotics might have contributed to progression of inflammation leading to abscess formation.  The occurrence of cellulites or abscess or abscess in human body is secondary to local infection and hardly attributed to the mode of injection taken for  some other disease.  In any case right gluteal abscess caused to the complainant was not due to any act or omission  on the part of  these  OPs.  

     The available evidence before us is Ext.B1 case record of 3^rd OP hospital produced by 3^rd OP and Ext.A5 discharge summary of KMC hospital.  On perusal of Ext.B1, on the admission date 18/11/2014, the  complaint noted as per USG on 14/11/2014 as(L) Renal calculi” The clinical examination are fever, h/o vomiting.  On examining Ext.B1, on 21/11/2014, c/o pain- glueteal  region is noted.  Further on 22/11/2014 , the patient was discharged at request.  On perusal of Ext.A5 the Discharge summary, it is stated that the complainant had visited a local hospital for abdominal pain and dyspepsia for which he was treated with injections.  Patient developed fever and pain in gluteal region which was radiating to the leg.  He was admitted and treated elsewhere with  IV Cephaloasporins as per records.

   But from the records available before us shows that the patient had informed about pain at gluteal region only on  21/11/2014 to 2^nd OP.  If he had  complaint of pain on gluteal region before 21/11/2014, it would have been included either in the prescription of 1^st OP or in the Ext.B1 prepared by 2^nd OP.  Even  in the admission date at 3^rd OP hospital on 18/11/2014, there is no entry of pain  at gluteal region.  So without any medical record, we cannot come to a  finding that even after several times  complainant complained about pain on his buttock,  2^nd OP neglected it and did not examined it properly.  We cannot find such a remark in Ext.A5 discharge summary of KMC hospital also.

        It is further revealed that though the complainant was discharged from 3^rd OP hospital on request on 22/11/2014, he sought  treatment on  24/11/2014.  During cross examination PW1, has given statement that ഡോക്ടർ തീയ്യതി അന്നാണ് കിട്ടിയത്. 22/11/2014  നു discharge ആയി 24/11/2014 നു മംഗലാപുരത്ത് പോയി. The learned  counsel of OPs submitted that if the complainant was discharged from OP’s hospital due to severe pain and fever, he should have sought treatment at a higher centre  on the same date at the casualty division to KMC hospital.  Complainant has given an explanation that he had taken the antibiotics prescribed from OP hospital at the discharge time.  Since the said explanation was denied by OPs, complainant ought to have submitted the cash bill for the purchase of the same.  The OPs learned counsel submits that if the abscess on the complainant’s buttock worsened, it may have been due to  a lack of treatment or discontinuation of antibiotics for two days.

   From the available evidence since it is evident that the complainant disclosed his pain on the buttock only on 21/11/2011 and  discontinuation of antibiotics or treatment for two days, is the reason for developing  Right gluteal Abscess(E.coli Inf).

  The learned  counsel of OPs submitted  a number of citations of Supreme court that  the allegation of medical negligent should be proved with the evidence of expert.  The Hon’ble Supreme court in  Post graduate Institute case(2009(7)SCC 330) , Dr.SK Jhunjjhunwala2019(2)SCC 282 held that “ in the medical negligence actions, the burden  is on the claimant  to prove breach of duty, injury and causation.  In  every case where  the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.  To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. (Harish Kumar Khurana 2021 10 SCC 291 followed in Chanda Rani vs. Methusethupathi 2022 ) Sup(SC) 335.  As already observed in Jacob Mathew case(2005 6SCC 1, 2005SCC(Cri) 1369, the onus to prove medical negligence lies largely on the on the  claimant and that this onus can be discharged  by leading cogent evidence.  A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case  of the complainant can be said to be proved.  It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.  C.P.Sreekumar(Dr.) MS (Ortho) vs. S.Ramanujam(2009)7 SCC130).  Further the commission cannot presume that the allegations in the complaint are inviolable  truth even though they remained unsupported by any evidence(R.Singh vs. Shabana 2022 3 CPR 82 Del)  A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be  evidence by which  the case of the complainant can be said to be proved.  It is the obligation of the complainant to provide the facia probanda as wll as the facta probantia C.P.Sreekumar vs. S.Ramanujam(2009)) Supreme(UK) 218,2009 2UAD 232 SC, 2010 1UC 303SC. Further submit that Direct causation (causa causand) is one of the factors to be considered. (2014(20 CPR(NC) 351.  In negligence cases, one must prove that there was a duty, that duty was breached, and the breach of  that duty caused damages.  Vishnu Priya Giri(deceased) vs. G.K.Modi Hospital Reassearch Centre for Medical science 2022 3 CPR(NC) 198.  To succeed Iin any medical negligence claim the complainant must demonstrate that four essential ingredients of medical negligence are 4D namely Duty of care, Dereliction(breach) of duty, Direct causation and Damage proximate to the breach.  Manjulata Garg vs. R.C Mishra,2022 4 CPR (NC) 169.  

   With regard to 3^rd OP hospital , since the complainant failed to establish that the injection  of his right buttock  was taken at OP.3’s hospital , we cannot  find liability against  3^rd OP hospital.

  To conclude,  considering  the pleadings and evidence , we are of the view that the complainant  has failed to establish the claim of medical negligence against OPs.  The complainant is not entitled to get relief.

   In the result, complaint fails and hence the same is dismissed.  There is no order as to costs.

Exts:

A1&A2-OP record

A3- Lab report

A4-Discharge card from OP Hospital

A5-Discharge summary from KMC Hospital Mangalore

A6-Lawyer notice

A7&A80Reply notice of OPs 1&2

A9-Acknowledgment card of OP.3.

B1- Case sheet

PW1-Sreerag.P.P- complainant

DW1-Dr.Goutham Gopinath-1^st OP

DW2-Dr.K.Sudeep-2^nd OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR