SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed U/s 12 of Consumer Protection Act 1986, relates to the unexpected death of Mr. William John on 19/06/2017  in the ICU of opposite party 4 hospital, alleging Medical negligence, and deficiency in service resulting to the death of late Mr. William John.  Complainant is the wife of late William John claiming Rs. 5 lakhs from the opposite parties.  Opposite party 1 Dr. Jayadev. K is working as an orthopaedic surgeon, 2^nd OP Dr Sreenivasan IC is a consultant surgeon having  qualification of MBBS, M S General Surgeon and opposite party No.3 is a consultant Physician, MD General Medicine, 4^th opposite party is a co-operative hospital and opposite parties 1 to 3 are doctors working in opposite party 4 hospital in their respective fields.

Case of the complainant is that on 24/06/2017 complainant’s husband was bought to the OP No.4 hospital for fever and neck pain for which the OP No.1 treated him.  Since his illness was not relieved on 27/06/2017 she again came to the hospital and the OP No.2 treated him by prescribing medicines.  She alleges that her husband was very healthy except for the fever, neck pain and diabetics.  Since the illness was not relieved, he again came to the hospital and admitted him to the hospital at the time of admission his health was in good condition.  When he was under treatment he was taken to ICU suddenly as instructed by the OP No.3.  When he was in ICU food and medicine were purchased by the complainant, but on 29/06/2017 her husband died from ICU.  So the complainant alleged that the death of her husband was because of the negligence on treatment from the OPs.  After his death the complainant requested the OPs for treatment records but it was not issued on time and on compulsion it was issued stating the husband had kidney disease and liver cirrhosis and chronic diabetics.  No medicines were given to her husband from the hospital for the above disease.  So the complainant prays an award of Rs.5 lakhs towards compensation.  Hence the complaint. 

            After receiving notices, OPs 1 to 3 filed their written versions, denied the allegations of the complainant.

            1^st OP filed version, stating he had not attended or treated the complainant’s husband named William John at the time of admission to AKG Memorial    Co-operative Hospital.  Since the 1^st OP had not attended or treated the patient in AKG Memorial Hospital there is no consumer relationship between them. It is learned that death of the patient was caused due to severe kidney injury, liver disease and infection which did not respond to treatment with antibiotics and life supporting measures under care of the 3^rd OP.  The 1^st OP who did not take part in the treatment cannot be held liable or responsible for death of the patient which was otherwise caused due to his severe disease condition treated under deadly ill list.  1^st OP is working as an orthopaedic surgeon in the 4sth OP hospital and is having qualification of MBBS, D’ORTHO and DNB ORTHO.  Hence, prayed for the dismissal of this complaint.

            OPs 2 and 3 filed version jointly, having contentions as that the husband of the complainant named Mr. William John aged 56 years was brough to the casualty in AKG Memorial Co-operative hospital Thalap, Kannur on 28/06/2017 at 1.14 am as a case of acute medical emergency.  He had breathlessness and mild fever.  As per reported clinical history he was on treatment for chronic liver disease and having Type II diabetes mellitus on medication.  The casualty Medical had attended the patient and he was directly admitted to ICU as there was complaint of sever breathlessness and his general condition was poor.  The patient was started on medicines with oxygen support and blood samples were taken for investigations.  The patient had low BP after shifting to ICU and he was closely monitored along with medication as per protocol.  The relatives were informed about the condition of the patient and the modality of management was discussed with them and thy consented for continuation of treatment.  The patient was started on IV bronchodilators, IV antibiotics, IV fluids, Insulin etc.  Blood report showed deranged abnormal renal function test, lever function test, low platelet count, low serum sodium and high blood sugar value.  In view of deranged kidney and liver function with sepsis and diabetes mellitus the patient’s condition was very serious and poor prognosis was explained to the bystanders and he was treated with proper medicines and supportive care as per accepted medical practice and protocol.  With the history, clinical findings and investigations a diagnosis of chronic liver disease, acute kidney injury, Type II diabetes mellitus, and diabetic foot with sepsis were made and managed accordingly as a n emergency.  The 3^rd OP had advised cardiology, nephrology, Gastroenterology and Surgical consultation and treatment was discussion with them.  The patient had a fall in blood pressure it he afternoon and was seen by the senior physician on duty and Gastroenterologist and their instructions were carried out.  In spite of all possible timely measures and medical management the patient succumbed to death   on 29/06/2017 at 13.30 am.  Clinically death was declared as due to sepsis, acute kidney injury and chronic liver disease.  The complainant’s case that she was not informed about liver disease and acute kidney injury till death of the patient is falsely stated with ulterior motive and hence denied.  The statement that certificate was issued with false findings acute kidney injury, liver cirrhosis and diabetes is unfounded and hence denied.  The 2^nd and 3^rd OPs are not liable or responsible for death of the patient caused due to his disease condition.  The 2^nd OP is consultant surgeon having qualification of MBBS, MS General Surgeon and 17 years experience as a consultant Surgeon.  The 3^rd OP is having MD (General Medicine) and working as a consultant Physician with 23 years experience in the respective field.  According to OPs, there is no negligence or deficiency in service on the part of the 2^nd and 3^rd OPs as alleged by the complainant.  Hence, prayed for the dismissal of the complaint.

            On the side of complainant, chief affidavit of complainant has been filed with documents.  She was examined as Pw1 and was subjected to cross-examination for the OPs marked Ext.B1 case record of the deceased, B1 (a).  On the side of OPs, OPs 1 to 3 filed separate chief-affidavit and has been examined as Dws 1 to 3.  Dws 1 to 3 were cross-examined for the complainant.  After that the learned counsel of complainant and OPs made oral argument.  The learned counsel of OPs also filed written argument note with citation of case laws.

            Complainant’s allegation is that the death of her husband was due to the negligence on treatment from the OPs, as OPs had not admitted her husband on 27/06/2017 when he consulted OPs and had not find out the disease of the complainant and not given proper treatment.  The learned counsel of OPs argued that non-conducting of Autopsy/post mortem on the deceased to find out the real cause of death, not adducing expert evidence,  to show failure of the OP doctor.  The learned counsel of OP submitted certain citations of Appellate commission to support the said contention.  “In every case where the treatment is not successful or that 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 v Methusethupathi 2022 0 Sup(SC)335,  The Hon’ble National Commission held that in the absence of expert evidence no negligence or deficiency in service could be found against doctors. KIRAN BALA ROUT v CHHRISTIAN MEDICAL COLLEGED AND HOSPITAL,  2003 (1) CPR(NC) 238.  It is well settled that to prove the negligence of a doctor the medical evidence of a n expert in the field is required. (Dr. S K Jhunjhunwala 2019(2) SCC 282).

            According to OPs, the death of the patient was caused due to severe kidney injury, liver disease and infection which did not respond to treatment with antibiotics and life supporting measures under the care of the third OP.  OP1 submitted that, OP1 had not attended to or treated the complainant’s husband at the time of admission to OP4 hospital and t hereafter.  Therefore OP1’s contention is that he cannot be held liable or responsible for the death of the patient.  Here the question to be decided is whether there is any deficiency in service on the part of any of the OPs as arrayed in the complaint? 2) Whether autopsy/Post mortem is a must to ascertain the cause of death of the deceased who died in the ICU without knowledge of the complainant?

            Here there is no dispute that complainant’s husband was taken to OP4 hospital as outpatient on 24/06/2017 treated by OP NO.1, Again on 27/06/2017 patient came to the hospital and treated by OP NO.2.  After that on 28/06/2017 at 1.14 AM he was again brought OP4 hospital on causality and was admitted in ICU under the instruction of OP No.3 doctor and he was under the treatment OP3; further on 29/06/2017 the husband of complainant died from ICU.

 On perusal of medical records available before us Ext.A15, that the patient (William John) was examined by OP No.1, C/o neck pain was1 week, H/o fever 7 weeks back.  R/A one week and advised cervical collar and medicines.  X-Ray also was taken spondylosis.  Ext. A16 dated 27/06/2017 shows, the patient was examined by OP No.2 Sreenivas I C Laparoscopic surgeon.  The medicines prescribed by OPNO.2 shows for ulcer and pain killers, which reveals that the contention raised by OP NO.2 that the patient came to OP NO.2 on 27/06/2017 with a complaint of diabetic foot and did not disclose any further complaints and his previous consultation with OP No.1 can be believed.  In Ext.A16, no complaint of fever and neck pain, was raised by the patient.  In A15, also shows no complaint of fever raised by the patient on the examining date 24/06/2017.  Ext.B1, the case record of the patient pertaining to the treatment given to Mr. William John from 28/06/2017 till 29/06/2017  at 12.30 AM at OP 4 hospital shows that, he was under treatment of OP No.3 Dr. Dinesh P.  On perusal reveals that C/o breathlessness. 1 day chronic liver disease, (CLD), Diabetic mellitus and Accuse Kidney Injury.  Further investigation report of blood shows deranged renal function tests, liver function test, high blood sugar etc. reveals, that the condition of the patient on 28/06/2019 was very serious.  In page No.9 of Ext.B1, patient was put in DIL.  Chest X-ray of the patient was taken and also referred to Nephrology consultation, Gastro entrology and surgical consultation.

Point 1 and 2

            According to complainant, death of the patient at the ICU was unexpected and was all on a sudden.  Complainant alleged that complainant was healthy except complaint of diabetic and was in a good condition at the time of admission.  OP’s version is that at the time of admission ie on 28/06/2017, he had severe kidney injury, liver disease and infection.  OPs contended the cause of death could be ascertained only by conducting Autopsy. Here if complainant had any doubt about the death of her husband in the ICU, she could have demanded to conduct Autopsy.  Complainant does not have a case that her demand to conduct P/M was denied by OPs.  In case of sudden death as alleged by the complainant, Autopsy is a must to find out cause of death.  Without any such demand from the complainant side or without any complaint filed by the complainant to police station, we can assume that complainant had not doubt about the cause of death at the time of declaration of death of her husband.

            Here the next point to be decided in whether OPs have proved that there was no negligence on their part?

            OPs 1 to 3 were filed their chief affidavit and were examined as Dws 1 to Dw3.  Produced Ext.B1 is case records.  OP No.1 contended that OP1 doctor had not attended to or treated the complainant’s husband except 24/06/2017.  The treatment records also support his contention.  In Ext.B1 the treatment to the patient as impatient was given by OP No.3.  Only Ext.A15 shows that OP1 had given treatment to the complainant’s diseased husband only on 24/06/2017 at OP (outpatient).  The point we have to be looked into whether OP1 had given proper treatment on 24/06/2017. Ext.A15 is the only record to show the treatment given by OP1.  In Ext.A15, complaint stated by the patient at the examination of OP1 was Neck pain since one week.  H/o fever 1 week back means at the examination time no complaint of fever.

            In Ext.A15, we can see that the patient had not complaint about any other disease except neck pain.  Complainant alleged that the 1^st OP did not diagnosed the reason for fever and not advised to admit the patient on his 1^st visits itself, then the death of her husband would not have been occurred.  In Ext.A15, the patient had not told about his history of kidney injury and lever disease.  Hence we cannot blame 1^st OP doctor, not given advise of admission of the patient on 24/06/2017 and not conducted by Investigation to find out the reason for fever. Complainant also stated that the patient was healthy and was in good condition.  In Ext.A15, the medicines prescribed by  OP No.1 are Ivaxdom 250 for pain, inflammation and fever, Ultract for intense neuropathic pain etc. and advised cervical collar, which shows the treatment given also concentrate for neck pain relief and fever.  Hence from Ext.A15, there is no medical negligence or deficiency in service, on the part of OP No.1, the orthopedic surgeon.

            With regard to allegation against OP2 doctor Sreenivasan IC, MSD, Laparoscopic surgeon only Ext.A16 pertains to show his treatment to the husband of complainant Mr. William John.    OP2 contended that the complainant came to the outpatient section on 27/06/2017 with a complaint of Diabetic foot. He did not disclose any further complaints and his previous consultation with OP1. After examining him, OP2 prescribed sefpodoxime, Rabprazole, Foreheal, and Rederma Plus for external application.  The complainant did not disclose any treatment he had received form OP1 for his fever and neck pain.  The only treatment OP2 provided to the complainant was the prescription of medication as aforementioned, and OP2 constrained to believe that he was treated by him for his diabetic foot before the said date also.

            On perusal Ext.A16, medicines given shows for bacterial infections, Ulcers, pain relief medicines and Rederma plus ailment.  In Ext.A16, OP2 had not given medicine for fever or for flue and neck pain, which reveals that the patient had not complaint about neck pain, fever or not disclosed any treatment he had received from OP No.1 on 24/06/2017.  Further in A16 we can see that the consulting doctor OP No.2 noted “continued”, which means there would have been 1^st page attached to Ext.A16 about complaint raised, history, clinical condition of the patient etc at the time of examination by OP No.2 the patient William John on 27/06/2017 which was not produced before us.

            From Ext. A15 and A16, we can realize that OPs 1 and 2 doctors were given treatment and medicines which leads not to worsen the condition of the patient.  Complainant also had not submitted any medical records to reveal such a situation happened on the patient after the treatment availed form OPs 1 and 2.  It is seen that the treatment availed by the patient form OPs were of different complaints.  Moreover, we cannot assume that the complication of chronic liver disease, acute kidney disease, and sepsis, as stated in Ext.B1 case record on the admission day of the patient was happened on the dim was due to the negligence on the part of OPs 1 and 2 as without stating and without producing history of treatment record, a medical practitioner could not find out the complaint of a patient. Hence from the available material evidence, we are of the view that there is no deficiency in service on the part of OPs 1 and 2 in giving treatment to the patient Mr. William John.

            OP No.3 contended that the husband of complainant Mr. William John was brought to the casualty at the OP4 hospital on 28/06/2017 at 1.14 am as a case of acute medical emergence. He had severe breathlessness and a history of fever.  As per the reported clinical history, he was on treatment for chronic liver disease and had Type II diabetes mellitus under medication.  The casualty Medical team attended to the patient, and he was directly admitted to the ICU due to complaints of sever breathlessness and his poor general condition.  The patient was started on medications with oxygen support, and blood samples were taken for investigations.  The patient had low blood pressure after shifting to the ICU, and he was closely monitored along with medication as per protocol.  The patient succumbed to death on 29/06/2017 at 12.30 am.  Clinically, the cause of death was declared as sepsis, acute kidney injury, and chronic liver disease.

            Ext.B1 is the medical record pertaining to the treatment given by OP No.3           Dr. Dinesh physician, MBBS, MD to the patient from the admission dated 28/06/2017 at 1.14 AM till 29/06/2017 at 12.30 AM.  On a perusal of Ext.B1 it is seen that at the admission time the C/o patient was breathlessness since 1 day, chronic liver Disease, Diabetic, Kidney injury, Page 8 of Ext. B1 shows that on 28/06/2017 the blood investigation was done, which shows SGOT as 140 which means chronic lever cell disease (normal range 8/45 1 liter), RBS 300-244, Ura :128, normal range (5 to 20 mg/dl) means high kidney injury page 9 of Ext.B1 shows the patient was referred to Nephrology consultation, Gastro Endology consultation, Gastro Endology consultation, surgery consultation and cardiology consultation.  During cross-examination of OP3, the learned counsel of complainant put questions.  “നിങ്ങൾ നിർദ്ദേശിച്ച പ്രകാരമാണ് പരാതിക്കാരിയുടെ ഭർത്താവ് വില്ല്യംസിനെ ഹോസ്പിറ്റലിൽ അഡ്മിറ്റ് ചെയ്തത്? അതെ.  ആ സമയത്ത് വില്ല്യംസ് ആരോഗ്യവാനായിരുന്നു?  അസുഖം ഉള്ള ആളായിരുന്നു.  നിങ്ങൾ അനാവശ്യമായി നല്കിയ മരുന്ന് കഴിച്ചാണ് പേഷ്യൻറ് മരണപ്പെട്ടത് എന്ന്പറയുന്നു? തെറ്റാണ്.”

            On perusal of Ext B1 the patient was prescribed 19 medicines at the time of admission and was undergo blood examination and also referred to Nephrologists, and Gastroenterologist.  Further the lab report reveals that he had chronic liver disease, kidney injury and diabetic.  Hence the statement of complainant as stated above cannot be believed.  More over complainant has not proved her said allegation with expert opinion.  Complainant also failed to prove her allegation that OPs re-write or corrected some pages in Ext.B1 and submitted.

            Hence from the evidence, from the medical records, and in the absence expert opinion, we cannot come to a conclusion that there is medical negligence on the part of OP No.3 Doctor in treating husband of the complainant and that is why he had succumbed to death. 

            Considering the entire facts and circumstance of evidence and also from the medical records available, non conducting Autopsy, we are of the considered view that, there is no medical negligence or deficiency in service on the part of any of the opposite parties.

            In the result complaint fails and hence the same is dismissed. No order as to cost.

Exts.

A1-Copy of death certificate of William John

A2-Certificate issued by OP No.3

A3-Copy of lawyer notice

A4-Postel receipt dated 16/06/2018

A5-Postal receipt dated 16/06/2018

A6-Postel receipt dated 16/06/2018

A7-Postel receipt dated 16/06/2018

A8 to A11-Acknowledgment cards

A12-Reply notice dated 30/06/2018

A13&A14 -Reply notices dated 30/06/2018

A15-OP ticket dated 24/06/2017

A16-OP ticket dated 27/06/2017

A17-Discharge bill dated 29/06/2017

B1- Case record of diseased person

PW1- Complainant

Dw1-OP1

Dw2-OP3

Dw3-OP2

      Sd/                                                                                Sd/                                                           Sd/

PRESIDENT                                                                MEMBER                                                MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar

Assistant Registrar