Karnataka

Chitradurga

CC/115/2017

Smt.R.Manjula W/o D.Devaraj - Complainant(s)

Versus

Dr.H.Ushakiran - Opp.Party(s)

Sri.G.K.Mallikarajunaswamy

03 Dec 2019

ORDER

COMPLAINT FILED ON:13/11/2017

DISPOSED      ON:10/12/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:115/2017

DATED: 10^th December 2019

PRESENT :-     Smt. C.M.Chanchala.                             . President

                                B.A.L.,,LL.B.,            

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	Smt. R. Manjula W/o D. Devaraj, R/o Dyavaranahally Village, Devaramikunte post, Challakere Taluk, Chitradurga (Rep., by Sri. G.K. Mallikarjunaswamy. Advocate)
V/S
…..OPPOSITE PARTY	1. Dr. H. Ushakiran, Obstertrician and Gynecholigist, Suneetha Nursing Home, C.K. Pura Badavane, Opp to Akashavani, Center, Chitradurga-577 501. 2. Dr. Sowmya, Obsteratrician and Gynecholigist, Suneetha Nursing Home, C.K. Pura, Badavane, Opp., To Akashavani Center, Chitradurga-577 501. 3. Dr. G.N. Sandeep, Obstertrician and Gynechologist, Suneetha Nursing Home, C.K. Pura Badavane, Opp To Akashavani Center, Chitradurga-577 501. 4. Dr. Amarish, Nephrologist, Speciality  Center, Near Raju Medicals, Ram and Co., Circle, P.J. Extension, Davanagere.   (Rep., by Sri.CM. Veeranna , Advocate  for  OPs

 

Pronounced on 10^th December  2019.

Written by C.M.Chanchala, President.

//ORDER//

1.       The medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern the professional practice and is aimed at upholding its dignity. The medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing a tendency to forget that the self- regulation which is at the heart of their profession is a privilege and not a right and the profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that a Doctor is a noble profession and the aim must be to serve the humanity, otherwise, the dignified profession will lose its true worth.

        Having regard to the facts of this case which I shall narrate hereinafter, I am tempted to preface my judgment with the above referred observations of the Supreme Court made in the State of Punjab vs. Shiv Ram & Ors., IV (2005) CPJ 14 (SC).

This is a complaint of alleged medical negligence filed under section 12 of the Consumer Protection Act,1986 by Smt.R.Manjula the Complainant ( for short ‘Patient’) against the Opposite party/parties (for short ‘OP’ ) Dr.Ushakiran (OP-1), Dr.Sowmya (OP-2) Dr.G.N.Sandeep (OP-3) and Dr.Ambarish, ( OP 4) prayed compensation towards  the medical expenses, mental agony, loss of income, loss of salary, loss of marital life etc,. of Rs.19,50,000/- .

The Complaint:

2.      During the month of January 2017  the Complainant approached the OP-1 for her stomach pain by paying prescribed fee. After the relevant laboratory investigations as it was diagnosed as Cervical fibroid polyp-AUB, the OP-1 advised the patient for small operation. Accordingly, believing the words of OP-1 the complainant got admitted to their hospital on 14-01-2017, after proper X-rays on 15-01-2017, OP-1 had performed operation and complainant was inpatient in ICU unit in their hospital.  After conducting the operation, when the urine leakage started, the OP-1 informed to the complainant that while removing the fibroids of uterus, some damage was caused to urinary bladder and the OP-1 to 3 colluding with each other suggested the complainant to approach OP-4 nephrologists for treatment. On the same day, at about 4-30 pm the OP-4 on the request of OP 1 to 3 came to the hospital of OP-1 to 3 and again conducted another operation and after undergone operation urine leakage was stopped. On the next day morning as the complainant has suffered irritation, vomiting sensation, the same was informed to OP- 1 to 3 and intern the OP-1 to 3 informed the OP-4 through phone, as per the advise of OP-4 stitches were  removed and send the complainant to Sri. Basaveshwara Medical College, Chitradurga for lab-test. On verifying the report, the complainant came to know that her kidneys were damaged while conducting operation by OP-1 to 4.

3. Further on 16-01-2017 after verbal conversation between the complainant and OP-1 to 3, the OP-1 referred the patient to Dr.Dayananda Max Super Specialty Hospital, Shimoga for higher treatment through their hospital ambulance with their own expenditure. On 17-01-2017  Dr.Dayananda has shifted the patient to emergency ward and conducted one more operation by inserting DJ stunt and 2 pipes besides of both kidneys for the purpose of dry up urine bolder and at the time of discharge, the doctor said that assurance of 100 % cannot be given for life of the patient and advise to take K-CIT syrup for 1 week. The complainant was in patient in the said hospital from 21-01-2017 to 01-02-2017.

4.   The complainant alleged that due to the negligent act of the OPs  the urine bladder were damaged. It caused the   complainant severe   physical and mental harassment and incurred additional operations and hospitalization, medical expenses. Thus it was gross negligence and deficiency in service from all the OPs.  The complainant further contended that proper consent for the operation was not obtained.

5.   The complainant further contended that while she was inpatient in the Max hospital Shimoga from 16-01-2017 to 01-02-2017 her husband and relative were attended her by staying in the hospital and sometimes they were also travelled from Dyavaranahally to Shimoga , for food and travelling and other expenses she has spent Rs. 1,50,000/-.  Apart from this she also spent more money for post operative treatment. Being aggrieved the complainant filed a complaint before this forum for proper compensation to the tune of Rs.19,50,000/-.

6.      After hearing on admission the complaint was admitted and  notices were ordered to be issued to all the opponents to file their written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OPs 1 to 4  entered appearance through their advocate and denied the allegations of negligence  and deficiency in service.

Defense:

7.      Opponent No.1 to 4 in the version filed admitted that they discharged their duty as doctors in the respective nursing homes. The opponents have contended that the complainant was visited the 1^st OP hospital on 21-11-2016 with the complaint of generalized weakness and irregular menstrual and was under treatment, on 14-01-2017 she again visited the hospital with the complaint of watery discharge per vagina from three days, on ultrasound examination, they came to know that a Cervical Fibroid of 38 mm in size, so she was advised for surgery to remove the same. Accordingly, the complainant admitted to the hospital of OP-1 to 3 on 15-01-2017 and after taking consent and after thorough examination the surgery was done, while removing polyp there was abnormal bleeding which could not be controlled and hence vaginal hysterectomy was done to restore.  During surgery there was a bladder rent which is a medically acceptable and known complication. It was recognized immediately and tried to repair the rent, as the leakage of urine did not stop, OP-1 to 3 secured the OP-4 who did the cystoscopy. On 16-01-1017 the patient developed distension of abdomen with mile respiratory distress, same was informed to OP-4, on advise of OP-4 stitches were removed in the vaginal vault. The scan was done by OP-1 and as there was a fluid collection in the abdominal cavity which was drained by removing the stitch in the vault of vagina. The OPs further contended that the serum creative of the complainant was 2 mg/dl which was a bit above the normal level which could be a suggestion of pre renal acute renal failure which is totally reversible. The husband of the complainant and other relative wanted to shift the complainant to major hospital. So, Dr.Dayananda, Nephrologists at Max Hospital Shimoga was contacted and decided to shift the complainant  to the said hospital. Due to financial problem of the complainant, the OPs stood guarantee to pay hospital bill for further treatment in  Max Hospital Shimoga on humanitarian concern.

8.   It is the further case of the opponents that there was no negligence on their part, the OPs further contended that the outcome of the treatment greatly depend on the variety of factors such as the severity of the condition treated, co-existence of other diseases, immunological status of the individual, limitation of the treatment involved, sensitivity of the individual to the drugs, resistance of the organism tod the drugs administered patient compliance etc., many of which are not under the control of the treating doctors or the hospitals. In many cases bladder injuries not detected on the operative table, but only subsequently when signs of the complications occur, but in the present complainants OPs  have done exceptionally well in detecting the problem. Hence, OPs prayed for dismissal of the complaint.

Evidence:

9.   Respective parties have filed their affidavits of evidence and examined themselves. The complainant got herself examined as AW-1 by filing her affidavit as a part of examination in chief and also got Ex. -1 to A 48 marked and closed the evidence.

10.    On behalf of the OP-1 Dr.H.UshaKiran Rao has been examined as RW-1 by filing her affidavit as a part of examination in chief and no documents have been marked. Closed their side evidence

Arguments:

11.    We have heard the learned advocates for both the sides. They have filed their respective  written arguments.

12.    The points that arise for our determination are ;

1.  whether the complainant is consumer of O.Ps?

2. Whether the complainant proves that there was medical negligence on the part of opponents?

3. Whether the complainant proves that she is entitled for the relief sought?

4. What order?

13.    Our finding on the above points are as under;

          Point No.1: In the Affirmative.

          Point No. 2 to 4: As per final order,

For the following ;

Discussion and Reasoning:

Point No.1:-.

14.  The OPs alleged that they have provided their service to the complainant on free of cost and hence the complainant is not a consumer and service rendered by them will not fall with in the preview as defined in the Consumer Protection Act 1986.

15. The Hon’ble Supreme court in its judgment reported in AIR 1996 SC 550 held that ‘ Consumer protection Act 1986, Sec 2 ( 1) ( o)-service- Doctors/ Hospitals-Rendered free of charges to some patient and services on payment to others- Both types of services rendered fall within ambit of service under section 2 ( 1) (o) of the C.P.Act’.

16. Admittedly the OPs are running a nursing home. In view of the observation made by the Hon’ble Supreme court in the above judgment the complainant is a consumer and service rendered by OPs falls within ambit of ‘ service’ as defined under the C.P.Act. 1986. Accordingly, we answered this point in the Affirmative.

Point No.2 to 4:-

17.  In Dr. Laxman Balkrishna Joshi v. Dr. Trimnsk Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed that "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose, such a person when consulted by a patient owes him certain duties, viz.. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires".

18.  In the present complaint it is not in dispute that the complainant consulted to OP No.1 on 14-01-2017 with the complaint of improper menstrual cycles, a clinical diagnosis of Fibroid uterus was made, the patient was given the option to removal of Uterus, as per the advise of OP No.1 to 3 the complainant got admitted in the OP No.1 to 3 nursing home for removal of the uterus, thereafter on 15-01-2017 the OP No.1 to 3 conducted the operation on the complainant and removed the uterus and while conducting operation there was damage to the urinary bladders which result in leakage of urine, hence again they conducted hysterectomy to restore the same, as the leakage of urine did not stop, they secured the OP-4 who did cstoscopy. Further it is also admitted fact that after on 16-01-2017 the patient developed distension of abdomen with mild respiratory distress, on the advise of OP-4, the OP-1 to 3 removed the stitches in the vault vagina, on scan report the OP-1 to 3 came to know that the serum creative of the complainant was a bit above of normal level, the OPs shifted the patient to MAX hospital Shimoga for further treatment and treatment charges also paid by them.  

19.  The complainant alleged that due to improper operation done by the OPs, uncontrolled passing of urine occurred from the vagina due to damage to the uterus she suffered infection in the kidney and also she was made to suffer both physical, mental and also under gone 3 operations for no fault of her and she further alleged that due to the negligent act of the opponents she was made to suffer physically and mentally and was made to incur medical expenses at several hospitals and the opponents have committed medical negligence. She also denied regarding proper consent obtained by the opponents from her.

20.  The complainant got examined herself as AW-1 and reiterated the facts narrated in her complaint and alleged medical negligence on the part of the opponents. We have perused the documents produced by her also marked as EX-A1 and  A 2 where doctor made impression that ‘ slight bulky uterus’. In EX- A 3 the doctor made impression that ‘ Bulky uterus with cervical fibroid’ Both the parties have not produced hospital case sheet of OP-1 to 3, however, the OP-1 to 3 admitted in their version that they made operation to the complainant on 15-01-2017 in their Hospital. EX-A6 is the letter written by the OP-1 to 3 nursing home which shows that at the time of operation by OP-1 to 3 urine bladders were damaged, to repair the same hysterectomy was done, there after cystoscope also done by OP-4, when further complicated aroused, they referred the patient to  Max Hospital, Shivmoga on 16-01-2017.

21.  Further EX- A 9 clinical discharge summary issued by Max Hospital Shimoga Dtd: 16-01-2017 shows that the complainant admitted to the Max hospital on 16-01-2017 and discharged on 01-02-2017. Clinical history of the patient shows that ‘ presented with h/o acute onset breathlessness since today after noon. She underwent vaginal hysterectomy on 15-01-2017 for fibroid polyp of uterus with vaginal prolapsed. Following surgery she was noted to have bladder injury and urologist opinion was sought and bladder was sutured. As there was nil urine output and distension of abdomen vault sutures were removed following which patient is having urine per vaginum. H/o.hypotension and multiple blood transfusion during surgery present.No h/o nephrotoxix drugs/NSAID use.

Referred from Sunitha nursing home for further management.” 

Further in the same document, under the head of course of hospital it is mentioned that “  Mrs.Manjula, 39 years old lady, cervical fibroid polyp with AUB/ s/p vaginal hysterectomy on 15-01-2017 presented with h/o acute onset breathlessness since today afternoon. On evolution, she was found to have vescico-vaginal fistula, acute peritonitis with sepsis and AKI secondary to sepsis/hypovolemia. She was also treated conservatively with IV antibiotics, IV fluids, PPI, bronchodilators and other supportive measures. Urologist opinion was sought and she underwent emergency laparotomy on 17-01-2017. VVF was repaired and cystoscopy + bilateral DJ stunting was done on 17-01-2017, General surgeon opinion was sought and conservative management continued. In view of severe anemia with sepsis, she received 2 unit of PRBC. Her urine output was adequate and renal functions started getting better (from a peak serum creatinine of 2.2.mg/dl to 0.06 mg/dl at the time of discharge) she was symptomatically better and is being discharged in hemodynamically stable state with following advise”.

22.  From the bare perusal of the Hospital records issued by Max Hospital, Shimoga it appears that, operation was performed by the OP No.1 to 3 on 15-01-2017, and due to operation, urinary bladders  of the complainant was injured and damaged and  during removal of uterus and thereafter Hysterectomy was performed, when the urine leakage was not stopped Cystoscopy was performed by OP-4. Later when all the OPs failed to repair the damage, they have sent the complainant to Max Hospital, Shimoga, in where again VVF was repaired by doing cystoscopy + bilateral DJ stunting done.

23.The OPs have chosen to cross examine the complainant, during the course of cross examination the complainant denied that there was no negligence on the part of the opponents No.1 to 4. 

24. Rw-1 in her affidavit evidence admitted that she has treated the complainant and operated Hysterectomy, but she denied that there was negligence on the part of OP-1 to 4. She stated that she exercised reasonable and due care while operating the patient. She further stated the outcome of the treatment greatly depend on the variety of factors such as the severity of the condition treated, co-existence of other diseases, immunological status of the individual, limitation of the treatment involved, sensitivity of the individual to the drugs, resistance of the organism tod the drugs administered patient compliance etc., many of which are not under the control of the treating doctors or the hospitals. In many cases bladder injuries not detected on the operative table, but only subsequently when signs of the complications occur, but in the present complainant OPs  have done exceptionally well in detecting the problem. She further added that the OPs have discharged their duty and given reasonable care, hence she prayed for dismiss the complaint. 

25. After completion of  chief evidence of RW-1, as per the request of OPs the Hon’ble forum permitted the OPs to serve interrogatory to the complainant, but in spite of taking sufficient time, the OPs failed to do so.

26.  While arguing the matter the counsel appearing for the opposite parties submitted that the complainant has not produced any expert opinion to prove medical negligence on the opposite parties, hence medical negligence cannot be attributed against the opposite parties without expert opinion.

27. The Hon’ble Supreme court in V.Krishan Rao Vs Nikhil Super Specialty Hospital and others ( III (2010) CPJ I (SC)  held that ‘ opinion of expert is not necessary in all cases of medical negligence’. The Hon’ble State commission of Kerala while passing the order in  CC No. 10/ 2005 has held that “ in case the evidence tendered by the opposite party itself prove medical negligence then there is no need for expert evidence” . Moreover, in the present case PW-2 is an urologist and himself is an expert in the field. Hence no further expert evidence needed to prove the medical negligence. In view of above decisions the submission of opposite parties counsel overruled.

28. In the present complaint it is admitted fact that bladders injury to the complainant at the time of gynecological operation. In judgment Savitha Garg Vs Director, National Heart Institute, reported IV (2004) CPJ 40 ( SC) =VI (2004) SLT385=2004(8)SCC 569 where in it was held that “ once the complainant has discharged the initial burden that the hospital / doctor was negligence , then in that case the burden lies on the hospital/doctor to show that there was no negligence involved in the treatment”. EX-A 8 clearly proves that the damage to the bladders  caused during opening made by OP-1 to 4. In view of the same, we came to the conclusion that there was medical negligence on the part of the opposite parties while conducting operation to the complainant.

29.   In the decision Swami Vs Mathews 1968 91) MALLJ 138 it is held that “ every person who enters into the learned profession undertakes to bring to the exercise of its reasonable degree of the care and skill”. The doctors holding out ready to give treatment does undertakes that he is possessed of skill and knowledge and must also exercise reasonable degree of care.

 30.  Failure of duty of care:

Catena of judgments of Hon’ble Supreme Court , National Commission and state Commissions have discussed about the medical negligence and duty of care.

We would like to rely upon one decision of Hon’ble National Commission in the case of Dr.Indu Sharma Vs Intraprastha Apollo Hospital &Anr. , III (2015)CPJ 248 (NC) in which the issues of duty of care and breach of duty nis discussed with the reference of Hon/ble Supreme Court cases.  The two decisions rendered by Hon’ble Supreme Court namely, Dr.LaxmanBalakrishna Joshi vs. Dr.Trimbak Bapu Godbole&Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of U.P. AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (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 the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.

In our view it is a case where principle of  Resipsa loquitur is applicable.  Res ipsa loquitur means the thing speaks for itself. 

The principle of res ipso loquitur has been discussed elaborately by the Hon’ble Supreme  Court in V.Kishan Rao vs. Nikhil Super Speciality Hospital [(2010) 5 SCC 513], wherein it has been held in para 43 and 44  as follows: 

43. In Spring Meadows (supra) the Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In paragraph 10, this Court gave certain illustrations on medical negligence  where the principle of res ipsa loquitur can be applied. 

44. In Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others, (2009) 7 SCC 330, also the Court held that mismatch in transfusion of blood resulting in death of the patient, after 40 days, is a case of medical negligence. Though the learned Judges have not used the expression res ipsa loquitur but a case of mismatch blood transfusion is one of the illustrations given in various textbooks on medical negligence to indicate the application of res ipsa loquitur. 

31. In the instant case the patient suffered post hysterectomy urinary leakage through vagina, it itself proves that there was injury to the bladders during the surgery. Thus it is res ipsaloquiter.

We would also rely upon the decision in the case of Spring Meadows Hospital &Anr. v. Harjol Ahluwalia through K.S. Ahluwalia &Anr  (1998) 4 SCC 39. Their Lordships observed as follows: 

" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor." 

The injury to the bladder during laparoscopic surgery was not a bonafide mistake in the instant case by the OP-1, but a negligence.

32.  The complainant further alleged that proper consent for the operation was not obtained by the Ops before conducting the operation. Admittedly the either parties have not produced the consent form obtained by the husband of the complainant. However, at the time of arguments, the counsel appearing for the complainant submitted that even though they filed application under RTI act to obtain medical records of the complainant, the Ops failed to furnish the same. In such circumstances, we can presume that non-production of the said document made it clear that the Ops have not obtain proper consent from the patient or her husband before conduction operation.

33.   The element of consent is one of the critical issues in medical treatment. The patient has a legal right to autonomy and self determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment except in an emergency situation where the doctor need not get consent for treatment. The consent obtained should be legally valid. A doctor who treats without valid consent will be liable under the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information. Consent is a legal requirement of medical practice and not a procedural formality. Getting a mere signature on a form is no consent. If a patient is rushed into signing consent, without giving sufficient information, the consent may be invalid, despite the signature. Often medical professionals either ignore or are ignorant of the requirements of a valid consent and its legal implications. Instances where either consent was not taken or when an invalid consent was obtained have been a subject matter of judicial scrutiny in several medical malpractice cases.

34.    It has been amply made clear in the above judgments that the cause of action for negligence arises when there is a resulting damage. In the present case, it is clearly established that the patient did suffer damage due to the procedure performed upon her at OPs hospital. The injury to the bladders caused to the patient resulted in extensive damage to her for which she had to undergo treatment at two other hospitals subsequently. The problem have been detected in the OPs’ hospital itself and proper treatment could be administrated to her. The OPs therefore, held to be negligence in causing injury to the patient during the course of surgery and then for their failure to diagnose the problem when she was in their hospital with the complaint of urine leakage. The citations produced by OPs not applicable to the present complaint as the facts and circumstances of the case are different from each others. Accordingly, we answered the point No.2 in the Affirmative.

Point No.3 and 4:

35. The complainant has prayed compensation to award Rs. 19,50,000/- in deferent heads.  In this context we have gone through the landmark decisions of Hon’ble Supreme Court. Hon’ble Supreme Court has held  that there is no restriction that courts can award compensation only up to what is demanded by the complainant.     In fact, Loss of dependency by its very nature is awarded for prospective or future loss. In this context,

36. In this context we rely upon observations made by Hon’ble Supreme Court in number of cases.

In  SarlaVerma’s  Case 2009 (6) SCC 121 , Hon’ble  Apex  Court discussed  “just compensation”  with a lot of clarity and precision. It was observed: 

“Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just…Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a  bonanza,  largesse  or  source  of  profit…Assessment  of  compensation  though  involving  certain hypothetical  considerations,  should  nevertheless  be objective.  Justice and justness  emanate  from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions”

 Nizam Institute Case- (1999) 1 CPJ (NC) 43, Hon’ble supreme Court held that,

We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, and the Court must not be chary of awarding adequate compensation. The “adequate compensation” that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.  It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis à-vis   a family in a case of death.  In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and 68 in time, compels the family to move on.  The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day.  The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.  We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away.  We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.

          The Hon’ble Supreme Court in the Kunal Sha’s Case,(2014) 1 SCC 384  held that  there  is no  strait-jacket formula for determining the quantum of compensation and observed that:

“… this Court is sceptical about using a strait jacket multiplier method for determining the  quantum of compensation in medical negligence claims. On the contrary, this Court mentions various  instances  where  the  Court  chose  to  deviate  from the  standard  multiplier  method  to avoid  over-  compensation  and  also  relied  upon  the  quantum  of  multiplicand  to  choose  the appropriate  multiplier  …  this  Court  requires  to  determine  just,  fair  and  reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant…”

 

37.  This incidence was happened in year 2017, considering the facts and specificities of this case the complainant deserves adequate compensation. The complainant submits that she is having four children and due to the negligence of OPs while conducting the operation, she is suffering mentally and physically and she further stated that she lost her income from job.  EX- A 47 and 48 produced by the complainant shows that she was doing job before the operation and getting salary of Rs. 8,843/- per month. Therefore, based on the foregoing discussion we hold that the OP-1 to 4 are liable for medical negligence and in our considered view total compensation of Rs. 10,00,000/- (Ten lakh) is just and proper in the instant case for medical expenses, her sufferings and mental agony and loss of income from job. Therefore, we allow this consumer complaint with following order:

Order:

The complaint is partly allowed.

 

The opposite parties (1 to 4) are directed to pay jointly and severally  Rs.10,00,000/- (Rupees Ten lakh) to the complainant along with interest @ 6% per annum from the date of filing of this complaint; within six weeks from the receipt of the copy of this order. OPs also shall jointly and severally pay Rs.30,000/- for the cost of litigation. In case of non-compliance of the order the entire amount shall carry interest @ 10% per annum till its realization.

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on  3rd  December  2019.)          Member                                                               President.

Witnesses examined on behalf of Complainant:

PW-1:-Complainant by filing affidavit evidence.

-:ANNEXURE:-

      

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Attested True Copy of Scanning Report issued by Challkere Digital X-Ray and Scanning Center dated 05/09/2016
02	Ex-A-2:-	Attested true copy of Abdomen Pelvic Ultrasonography Report issued by Suneetha Nursing Home dated 21/11/2016.
03	Ex-A-3:-	Attested True copy of report of abdomen and pelvic Ultrasound issued by Vasavi X-ray Ultrasound Scanning Centre dated :14/01/2017.
04	Ex.A-4:-	Attested true copy of report of Haematology issued by Suneetha Nursing home dated 14/01/2017.
05	Ex.A-5:-	Attested true copy of report of Biochemistry issued by Vasavi Diagnostic Laboratory date:15/01/2017
06	Ex.A-6:-	Attested true copy of report of Haematology report issued by Vasavi Diagnostic Laboratory dated:15/01/2017.
07	Ex.A-7:-	Attested true copy of of Bio Chemistry report issued by Vasavi Diagnostic Laboratory dated 16/01/2017.
08	Ex.A-8:-	Attested true copy of Reference letter issued by Opponent No.3 dated 16/01/2017.
09	Ex.A-9:-	Attested true copy of request letter written by Opponent No.3 dated 16/01/2017.
10	Ex.A-10:-	Xerox copy of Certificate issued by Dr.Dayananda Max Super Speciality Hospital, Shivamoga Dated 01/02/2017
11	Ex.A-11:-	Original copy of clinical Discharge Summary issued by R. Dayananda Max Super Speciality Hospital, Shimoga dated 01/02/2017
12	Ex.A-12:-	Xerox copy of Op Registration card issued by Dr.Dayananda, Super Speciality Hospital, Shimoga Dated:09/02/2017.
13	Ex.A-13:-	Office copy of Legal notice dated 21/09/2017
14	Ex.A-14:-	Original Postal Acknowledgements 4 in numbers dated 21/09/2017.
15	Ex.A-15:-	Original Postal Acknowledgements 4 in numbers.
16	Ex.A-16:-	Original copy of reply issued by Opponents dated 26/10/2017.
17	Ex.A-17:-	Original Medical Bills (27 in numbers)
18	Ex.A-18:-	Original Echocardiography report dated 17/01/2017.
19	Ex.A-19:-	Original Haematology Report dated 17/01/2017
20	Ex.A-20:-	Original Haematology Report dated 18/01/2017
21	Ex.A-21:-	Original Bio Chemistry Report dated 18/01/2017
22	Ex.A-22:-	Original Bio Chemistry Report dated 19/01/2017.
23	Ex.A-23:-	Original Haematology report dated 20/01/2017.
24	Ex.A-24:-	Original bio  Chemistry Report dated 20/01/2017.
25	Ex.A-25:-	Original Bio Chemistry Report dated 22/01/2017.
26	Ex.A-26:-	Original Haematology Report dated 22/01/2017.
27	Ex.A-27:-	Original Haematology Report dated 21/01/2017
28	Ex.A-28:-	Original Haematology Report dated 24/01/2017
29	Ex.A-29:-	Original Bio Chemistry Report dated 24/01/2017
30	Ex.A-30:-	Original Haematology Report dated 28/01/2017
31	Ex.A-31:-	Original Biography chemistry Reprot dated 28/01/2017
32	Ex.A-32:-	Original ultrasound Abdaman dated 31/01/2017
33	Ex.A-33:-	Original Clinical Pathology Report dated 09/02/2017.
34	Ex.A-34:-	Original Clinical hematology Report dated 09/02/2017.
35	Ex.A-35:-	Original Bio Chemistry Report dated 09/02/2017
36	Ex.A-36:-	Original Clinical Pathology Report dated 17/02/2017.
37	Ex.A-37:-	Original Op Registration Card dated 17/02/2017.
38	Ex.A-38:-	Original of Registration card dated 02/03/2017
39	Ex.A-39:-	Original of OP Registration Card dated 03/05/2019
40	Ex.A-40:-	Original Ultrasound Abdaman dated 02/03/2017
41	Ex.A-41:-	Original Ultrasound Abdaman dated 03/05/2017.
42	Ex.A-42:-	Original Clinical Discharge Summary issued by Max Hospital, Shivamoga.
43	Ex.A-43:-	Original X-ray dated 16/01/2017.
44	Ex.A-44:-	Original x-ray dated 18/01/2017
45	Ex.A-45:-	Original X-ray dated 19/01/2017.
46	Ex.A-46:-	Original X-ray dated 20/01/2017
47	Ex.A-47:-	Original X-ray dated 22/01/2017.
48	Ex.A-48:-	Certify copy of Bank Statement dated 01/01/2014 to 01/03/2017
49	Ex.A-49:-	Xerox copy of cheque dated 01/06/2016

 

DW-1: Dr. H. Ushakiran by way of affidavit evidence.

 

Documents marked on behalf of OPs

                              

  Nil

 

 

 

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