Tamil Nadu
North Chennai
40/2014
Mrs.Ewari Kannan,W/o.P.Kannan - Complainant(s)
Versus
Dr.K.K.Ramalingam,KKR Hospital - Opp.Party(s)
K.Priya
31 May 2018
ORDER
Complaint presented on: 26.02.2014
Order pronounced on: 31.05.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., PRESIDENT
THIRU. M.UYIRROLI KANNAN B.B.A., B.L., MEMBER - I
THURSDAY THE 31st DAY OF MAY 2018
C.C.NO.40 /2014
Mrs.Eswari Kannan,
W/o.Mr.P.Kannan,Ex.M.P.,
“Eravi Illam,
31/156, Palaniappa Nagar,
Suramangalam,
Salem-5 ….. Complainant
..Vs...
1.Dr.K.K.Ramalingam,
KKR ENT Hospital,
827, Poonamallee High Road,
Chennai-10
2. Dr. Ravi Ramalingam,
KKR ENT Hospital,
827, Poonamallee High Road,
Chennai-10
.....Opposite Parties
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Date of complaint : 05.03.2014
Counsel for Complainant : Mrs.K.Priya
Counsel for Opposite Parties 1&2 : Tmt.Nalini Chidambaram, Senior
Counsel for M/s.S.Silambanan,
H.Mohamed Rafi & M.Z.Mohajir.
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
This complaint is filed by the complainant claiming compensation of Rs.19,06,400/-under various heads u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
The deceased K.Ravikumar and Sudha are the son and daughter of the complainant. The complainant met the 1st opposite party/doctor on 11.01.1999 along with her son K.Ravikumar for consulting him to stop the discharge in his ears. The complainant also paid a sum of Rs.21,600/- to the 1st opposite party for providing medical services to her son. The 1st opposite party made her son to stay in his hospital itself. The complainant daughter Sudha was stayed with Ravikumar on 11.01.1999.
2. Next day on 12.01.1999 without informing the said Sudha, K.Ravikumar was taken to the operation theatre under the pretext of clinical test. No consent was obtained from any one of them and also without information the opposite parties unauthorizedly performed Mastoidectomy, Metoplasty and Ossiculoplasty to Mr.Ravikumar. After return from the operation theatre the complaint Ravikumar had severe headache. Further, the 1st opposite party on 11.01.1999 during consulting, he had informed that only after stopping discharge the surgery can be done and before that the same could not be done. However, without obtaining consent, the 2nd opposite party negligently conducted surgery. There is no proper post operative care treatment was given inspite of that the patient was having several problems. Suddenly, on 13.01.1999 the patient Ravikumar was discharged and thereafter they stayed at Nandanam. From 14.01.1999 to 21.01.1999 the complainant complained about the complications due to operation done to him.
3. Thereafter the complainant went to Salem and he had continued to have complications. Hence on 12.02.1999 the patient Ravikumar was brought to the opposite parties and they did not take care or provided any further treatment. Hence, he was admitted at voluntary health services on the same day and thereafter admitted on 15.02.1999 at Government General Hospital, Chennai for further treatment. On 17.02.1999 patient Ravikumar died at Government General Hospital due to “Post Mastoidectomy Meningitis”. Due to negligent operation done by the opposite parties and no proper post operative care treatment given by them the patient was died. Hence the complainant filed this complaint claiming compensation of Rs.19,06,400/-under various heads with costs.
4. WRITTEN VERSION OF THE OPPOSITE PARTIES IN BRIEF:
The opposite parties admit that the complainant’s son K.Ravikumar was admitted in their hospital on 11.01.1999 and he was suffering from disease called “Chronic Suppurative Otitis Media in both years. The opposite parties submit that the operation was done on the right ear and was cortical Mastoidectomy with Ossiculoplasty and Meatoplasty performed under local Anesthesia. The operation went on well without any incident and the patient had no complaints post operatively and the patient was discharged on the very next day i.e., on 13.01.1999.
5. This disease is the main cause of meningitis and other complications like brain abscesses which can be potentially dangerous to life. This is because of the very close proximity of the infected ear and the brain and meningitis. The inpatient report states that “moderate central perforation, Incus Eroded, Auto Head of Malleus on Head of Stapes, patient hearing well”. The inpatient report states that on 12.01.1999 evening, “No complaints, patient on antibiotics and other medicines”. The patient was discharged on 13.01.1999. The report also shows that the temperature, pulse and blood pressure were normal after the operation.
6. The patient was seen routinely over the next week and was sent back to Salem. If there was a problem, the patient would not have gone back to Salem nor would the Doctors have sent him back to Salem. There was no information from the patient or about the patient subsequently. The patient did not contact the opposite parties for further check up for any problems. The patient was sent back to Salem as he was well and asked to return to the hospital after 1 month for a routine checkup. But the patient did not come back. Hence these opposite parties have not committed any deficiency in service.
7. POINTS FOR CONSIDERATION:
1. Whether there is deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled to any relief? If so to what extent?
8. POINT NO :1
The admitted facts are that the complainant’s son Ravikumar was consulting the 1st opposite party/doctor from the year 1993 onwards and taking treatment under him and on 11.01.1999, he met the 1st opposite party consulted with him for treatment of discharge on his right ear and on the same day he was admitted in the hospital and on the next day on 12.01.1999 a procedure was done that “Right Cortical Mastiodectomy with Ossiculoplasty and with Meatoplasty” by the 2nd opposite party to the complainant and there after he was discharged on 13.01.1999 and after 21.09.1999 no treatment was given by the opposite parties and thereafter 12.02.1999 he was admitted at VHS Hospital and then admitted on 15.02.1999 at Government General Hospital Chennai and the said Ravikumar was died on 17.02.1999 in the same hospital and Ex.A26 death certificate was issued by the Chennai Corporation to the deceased.
9. We have heard the counsel for complainant oral arguments at length besides filing additional written submission also at length and we also heard the reply arguments of the learned senior counsel on behalf of the opposite parties and after considering both, we have arrived to decide the following issues whether the opposite parties have committed deficiency in service in treating the deceased Ravikumar.
10. ISSUES
- Is the 2nd opposite party was not authorized to conduct operation to the deceased Ravikumar for having not registered his Master Degree at the Medical Council on the date of operation on 12.01.1999?
- Whether the opposite parties have obtained consent to perform the surgery to the deceased Ravikumar?
- Whether the patient Ravikumar was died due to opposite parties failed to give post care treatment and thereby they have committed Medical Negligence?
11. ISSUE NO:1
Admittedly the 2nd opposite party is the son of the 1st opposite party and the 1st opposite party has established the KKR ENT Hospital and he was practicing. The 2nd opposite party is also practicing in the same hospital. The 2nd opposite party bio-data with qualification is marked as Ex.A27. As per that bio-data he had completed MBBS degree in the year 1992, obtained MS(ENT) degree in the year 1994 and Diploma NB(ENT) in the year 1995. Ex.A29 is the profile of the 2nd opposite party issued by the Tamil Nadu Medical Council. As per that profile the 2nd opposite party registered his MBBS degree on 05.02.1992 and whereas he had registered his MS (ENT) Master Degree on 09.08.2003. Even though the 2nd opposite party finished his Master Degree in the year 1995, he had registered the said degree after seven years only on 09.08.2003. Admittedly the 2nd opposite party conducted operation to the deceased Ravikumar on 12.01.1999. Therefore, on the date of doing surgery to the deceased, he had not registered his Master Degree with the Tamil Nadu Medical Council.
12. The complainant would argued thatas per section 15(2) of the Indian Medical Council Act, the 2nd opposite party failed to register his Master Degree and therefore he is not a authorized doctor to do surgery on the date of operation done by him.The opposite parties would reply that on the date of operation, the 2nd opposite party is a qualified Master Degree holder in ENT and hence there is no impediment in doing surgery by him and merely not registered his special degree with the medical council cannot be a deficiency.
13. The medical qualification shall be enrolled as per the Indian Medical Council Act, 1956 as per section 15 of the said act and those who enrolled can practice in any state as per section 15 (2) (b) of the said act. The 2nd opposite party admittedly enrolled his MBBS degree. Whereas, he has not registered his additional qualification viz. MS (ENT) degree in the Medical Council. Section 26 of the aforesaid act provides for registration of additional qualifications. Under section 27 of the said acts provides “every person whose names is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practice as a Medical Practitioner in any part of India”. So, as stated above Section 27 clears that only after registering qualifications can practice as a medical practitioner. Here, the 2nd opposite party though registered his MBBS degree, having not registered his special degree or Master Degree on the date of surgery, the surgery done by him to the deceased Ravikumar held as only an unauthorized surgery. Mere possession of a qualification will not permit him to practice unless and until registering the qualification as said above. Therefore, we hold that the 2nd opposite party conducted only an unauthorized surgery to Mr.RaviKumar on 12.01.1999 on his right ear and thereby committed deficiency. The 1st opposite party who is also the father of the 2nd opposite party, having permitted him to conduct surgery without registering qualifications under the aforesaid act to practice, we further hold that the 1st opposite party also committed deficiency in service.
14. ISSUE NO:2
It is not in dispute that the deceased Ravikumar was consulting to the 1st opposite party from the year 1993 and even when he came on 11.01.1999 he had consulted only by the 1st opposite party and at that time he had discharge on his right ear. The complainant paid a sum of Rs.21,600/-for treatment to the 1st opposite party and the same was not disputed by the opposite parties. On 12.01.1999 the surgery was conducted by the 2nd opposite party. According to the complainant her daughter Sudha was with the patient on 11.01.1999 night in the opposite party’s hospital and without her knowledge the patient was taken to the operation theatre. Later she came to know that her brother was inside the operation theatre. She was questioning the staff that why he was taken inside the theatre and the 1st opposite party told them that only after stopping the discharge the surgery would be done to him. After some time her brother was brought from the operation theatre with bleeding bandage on his right ear. However, two other patients who had already operated were not having such bleeding. Further no consent was obtained either from her or from her brother to conduct operation.
15. The opposite parties would contend that the complainant party had taken away all the records of the patient Ravikumar. It is the duty of the doctor before commencing surgery; they have to obtain consent either from the patient or from their close relative or from the patient attender. Here Mrs Sudha is the attender of her brother Ravikumar/ patient. According to her no consent was obtained from them. The consent obtained by the opposite parties was not produced in this Forum. It is not the case of the opposite parties that the complainant party had taken away the medical records of Ravikumar from them. Further they have not stated from whose custody and from which place of the hospital the records were taken away from them. If really the consent was obtained certainly the same would be in possession of the person who obtained the consent. Further the opposite parties not even stated from whom they have obtained the consent. The complainant denies that they never taken any document from them. The complainant filed Ex.A18 dated 11.01.1999 pre-operative assessment card and in that the date of operation fixed on 12.01.1999. In that card the consent was not obtained for conducting operation. The another argument of the opposite parties that whatever the documents taken away by the complainant was filed as documents and the same was marked on behalf of the complainant. None of the document filed by the complainant shows the consent of the patient or the attender or the complainant was obtained. The above said circumstances proves that the opposite parties have not obtained the consent from the complainant or from any one to conduct operation to Mr.Ravikumar . Therefore, it is held that the opposite parties failed to obtain consent for conducting operation is deficiency on their part.
16. ISSUE NO:3
The complainant would argue that there is no proper Post Care Treatment was given to the patient and due to that he was died on 17.02.1999 and Ex.A1 opinion issued by the Government General Hospital proves the Post Care Negligence of the opposite parties. The opposite party would reply that the surgery was conducted on 12.01.1999 and discharged on 13.01.1999 and after 21.01.1999 the deceased never come to them and what was the treatment taken by him was also not known to this opposite parties and it is the deceased only has not taken care after operation and therefore after one month of the operation the patient died will no way implicate the opposite parties that they have not given proper Post Care Treatment.
17. According to the complainant after 27.01.1999 the deceased went to his native place viz Salem. She would further state that immediate to the operation the patient was having pain continuously and after discharge they went to the opposite parties they did not give any advice or treatment properly. The Ex.A1 death intimation cum opinion clearly proves that the patient died due to “Post Mastoidectomy Meningitis Increased ICT”. The 2nd opposite party issued Ex.A22 discharge summary. As per the said discharge summary he had conducted surgery viz. the Right Cortical Mastoidectomy with Ossiculoplasty with Meatoplasty. Ex.A1 opinion says that the post care was not properly given for the Mastoidectomy operation done to him and Meningitis was formed and consequently he was died.
18. The post care can be divided into two kinds. One is the post care is given when the patient is in the custody of the hospitaland the other isthat after discharge the patient themselves taking the post care. Here the patient was discharged very next day of his operation. So, the patient himself has to take care after discharge is acceptable. However, after discharge what has to be followed, what care the patient has to take himself are all to be instructed to the patient by the doctor who is treating the patient. Both the opposite parties have filed their proof affidavits as their evidence. Absolutely there is no evidence in their proof affidavit that what was the instruction given by the 2nd opposite party to be followed by the patient after discharge has not been stated by him, even though he himself discharged patient by signing Ex.A22discharge summary.
19. In Ex.A22 discharge summary, the date of discharge is given as 12.01.1999 i.e the date of operation. Whereas in the written version, it is stated that the date of discharge as 13.01.1999. Therefore, the opposite parties themselves are not clear that when they have discharged the patient. Further in Ex.A22, it has been stated review after one month and follow typed instruction list. The typed instruction list is marked as A21. In Ex.A21 at page 20 the instruction given as “report to your doctor on the 5th day after operation for removal of bandage and sutures” and “report to your doctor again on the 7th day after operation for removal of the drain”. When the printed instructions says that to come review on 5th day and then 7th day, how can the 2nd opposite party can instruct the patient to comereview after one month in the discharge summary. Therefore, the instructions for the review given by the opposite parties are contradictory with each other proves that they have not given proper instructions to follow in the post care period.
20. The complainant stated in para 6 of the complaint that the affidavit filed by the complainant and daughter Sudha may be received as evidence on affidavit. The said affidavits was filed along with the complainant on 07.03 2001 itself. As per the affidavit they left Chennai on 27.01.1999 and till then no post operative treatment was given to the patient. After reaching Salem he had unbearable pain, severe headache and vomiting. On 11.02.1999 they left for Chennai and on reaching Chennai on 12.02.1999 they contacted the 1st opposite party and informed his health condition and however, he did not give any positive or favourable reply and he also declined to suggest future course of action to be taken by them. These particular facts that they contacted on 12.02.1999 the opposite parties have not denied either in their written version are in their proof affidavit. At least that point of time the opposite parties should have awaken and started treatment to the patient. Only after that on 16.02.1999 when they took MRI Scan, they were furnished with Ex.A25 report which revealed that the patient was infected. Having the opposite parties taken timely treatment on 12.02.1999 when the Ravikumar approached them, the infection should have been avoided and there they committed deficiency.
21. The opposite parties argued that the complainant has not examined any expert to prove the medical negligence committed by the opposite parties and hence for want of expert evidence, it has to be held that the complainant has not proved the negligence committed by them. No doubt the complainant has not examined any expert witness. The examination of expert witness is not a rule in all cases. When the available evidence and the documents clearly establish that there is medical negligence in such cases the examination of expert evidence is not necessary. In this case the 2nd opposite party is not a registered practioner in respect of his MS ENT qualification on the date of operation done by him and therefore we have held in point no.1 that the opposite parties committed deficiency in service. Further we have also decided above that the opposite parties have not obtained consent to conduct operation and also post care treatment was not given properly and hence they have committed deficiency. When the deficiency committed by the opposite parties explicitly clear as discussed above, the further examination of to expert witness in this case is not necessary and in view of such conclusion we reject the contention raised by the opposite parties in this regard.
22. The opposite parties are renowned hospital and they should have given proper treatment to the complainant son. In Ex.A2 discharge summary asking the patient to come for review after one month is not a proper instruction. During the review period what they are going to review should be written clearly in thedischarge summary. Merely writing to come after one month is not a proper instruction to give proper post care treatment. Therefore, the 2nd opposite party without an authority and without obtaining consent from the patient or any one conducted surgery to the patient Ravikumar and no proper post care treatment was given as discussed above and due to the surgery done by him meningitis was formed and the patient died proves that the 2nd opposite party committed medical negligence and thereby committed deficiency in service in conducting operation. Having the patient consulted only the 1st opposite party and he failed to conduct surgery and permitted the 2nd opposite party to conduct operation on his behalf without an authority establishes that he has also committed medical negligence and there by committed deficiency in service.
23. POINT NO:2
The deceased was only 28 years at the time of death. Ex.A2 to Ex.A5 proves that he had participated in sports activities and obtained several certificates and also participated in other activities. The complainant lost her good son. Due to loss of his son by the negligent act committed by the opposite parties she should have suffered with immeasurable agony and is accepted and for the same her son place cannot be compensated by money. However, in such a pathetic situation there is no other alternative excepting to order compensation to the complainant and accordingly the opposite parties 1 & 2 can be directed to pay a compensation of Rs. 15,00,000/- towards medical negligence and mental agony, besides a sum of Rs.5,000/- towards litigation expenses.
In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to pay a sum of Rs.15,00,000/- (Rupees fifteen lakhs only) towards compensation for medical negligence and mental agony to the complainant, besides a sum of Rs. 5,000/- (Rupees five thousand only) towards litigation expenses.
The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said compensation amount shall carry 9% interest till the date of payment.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31st day of May 2018.
MEMBER – I PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
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LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:
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